45:0303(27)CA - - SSA and NTEU and AFGE - - 1992 FLRAdec CA - - v45 p303
[ v45 p303 ]
The decision of the Authority follows:
45 FLRA No. 27
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel, the Respondent, the Charging Party, and the Intervenor filed briefs. The Charging Party and the Intervenor filed response briefs.
The complaint alleges that the Respondent violated section 7116(a)(1) and (3) of the Federal Service Labor-Management Relations Statute (the Statute) by denying the Charging Party's requests for a permit for non-employee organizers to distribute literature in the public areas of the Respondent's headquarters. The complaint also alleges that, by denying the Charging Party's requests for a permit and by granting applications for permits to other members of the public, the Respondent discriminatorily applied a no-distribution rule to the Charging Party's non-employee organizers. For the reasons stated below, we find that the Respondent did not commit the unfair labor practices alleged in the complaint.
AFGE is the exclusive bargaining representative of a nationwide unit of approximately 49,000 Social Security Administration (SSA) employees. SSA and AFGE are parties to a collective bargaining agreement that expires on January 25, 1993.
NTEU is conducting a nationwide campaign to become the exclusive representative of SSA's employees in the bargaining unit presently represented by AFGE. This campaign has been underway for several years. NTEU is collecting signatures of unit employees who desire an election to determine whether they wish to be represented by NTEU or AFGE or by neither.
Bargaining unit employees are located at approximately 1300 sites across the country. At the majority of these sites, the SSA office is located in a Federal building or in leased space in privately owned buildings which are occupied by other agencies or tenants. Approximately 9,000 bargaining unit members of SSA are located at SSA's headquarters facility in Woodlawn, Maryland. See Stipulation, paragraph 12. The Woodlawn facility consists of approximately 11 large office buildings in a suburb approximately 6-7 miles west of downtown Baltimore. The Woodlawn facility contains SSA's top administrative work force, its National Computer Center, its security operation, and a variety of other administrative and operational functions.
The physical layout of the Woodlawn facility is described in the stipulation as follows: All of the buildings in the facility are set back from the public streets by large lawns or parking lots. There is no perimeter fence surrounding the entire facility and the vehicular entrances are unguarded. Signs posted at the vehicular entrances indicate that the facility is Federal property. The signs "refer those who wish to use the facility to distribute literature or engage in other authorized activities, to obtain a permit." Id., paragraph 17. To enter the Woodlawn facility, vehicles must turn from one of several streets onto smaller roads leading to the parking lots and buildings. Public buses deposit passengers at a variety of stops throughout the facility, including a large traffic circle. This large traffic circle is surrounded on three sides by a core group of four large office buildings. The three large office buildings and several smaller buildings which are not a part of this core group have separate parking facilities and entrances. The buildings are adjacent to pedestrian sidewalks. "Assuming that business with [SSA] is involved, including activities conducted pursuant to a permit, members of the public have access to the sidewalks surrounding the office buildings at Woodlawn." Id., paragraph 22. These sidewalks "are considered public areas" for the purposes of the applicable Federal Property Management Regulation (FPMR). Id. Employees enter the buildings through doors which are accessed by sidewalks surrounding the buildings. Other individuals wishing to enter the buildings must have official business with SSA and be authorized to enter by security personnel.
The Woodlawn facility is "operated jointly by SSA and the General Services Administration (GSA) pursuant to a delegation agreement entered into between GSA and the Department of Health and Human Services (HHS)/SSA in August, 1986." Id., paragraph 24. The application procedures for obtaining a permit for the use of public areas at the Woodlawn facility are set out at 41 C.F.R. §§ 101-20.400 et seq. Under the delegation agreement covering the Woodlawn facility, "SSA is responsible for administering the permit process." Stipulation, paragraph 26.
In the past, SSA has granted permits to organizations to use the sidewalks of the Woodlawn facility for the activities described in their permits. Specifically, between November 1989 and April 1991, SSA approved permits for the following organizations: the Little Sisters of the Poor, Mothers Against Drunk Driving, the Disabled American Veterans, and the American Legion.
On May 7, 1991, an NTEU organizer who was not an SSA employee filed an application for a permit to distribute literature on sidewalks outside the entrances to the Woodlawn facility each Wednesday morning from May 22 to June 22, 1991. The Director of SSA's Division of Facilities denied the application on May 13, 1991. NTEU appealed the Director's decision on May 23, 1991. The Acting Associate Commissioner of the Office of Facilities Management denied NTEU's appeal on May 31, 1991. See id., paragraph 30, Joint Exhibit No. 11.
On August 6, 1991, NTEU applied for a permit to distribute literature during late August and September of 1991. In a letter dated August 9, 1991, SSA asked NTEU to identify the alternative means that NTEU had attempted to use to communicate with the Woodlawn SSA employees off the work site.1/ On August 30, 1991, NTEU responded to this request.2/ In its response to SSA's letter, NTEU stated that it used a commercial search firm to attempt to locate the home addresses of employees at the Woodlawn facility, and that while the firm "matched the names and addresses of approximately 15% of the bargaining unit of 45,000 people[,]" only "approximately 6% of the bargaining unit employees in Baltimore" were matched. Id., Joint Exhibit No. 14 at 3. NTEU then stated that through contacts with employees and searches of local phone books, "NTEU has doubled its list of home addresses in Baltimore." Id. NTEU also stated that organizers had "passed out leaflets on the city busses which go into the Woodlawn complex, . . . ha[d] set up meetings with groups of employees" and had "visited interested employees at home." Id. at 4. However, NTEU maintained that it had been unable to mail information to Woodlawn employees at work because "the information that has been supplied to NTEU contains an organization code, rather than a specific work address for the employee." Id. at 3.
On September 16 and September 20, 1991, GSA personnel prevented NTEU organizers from distributing literature at the Woodlawn facility. SSA denied NTEU's permit request on September 24, 1991. SSA "did not consider the issue of agency disruption in denying the permits to NTEU." Id., paragraph 36.3/
III. Preliminary Matters
A. Motion to Expedite
NTEU filed a Motion to Expedite Consideration of this case. The General Counsel supports the motion. AFGE filed an opposition to the motion, and NTEU filed a reply to AFGE's opposition.
In view of our decision in this case, we find that NTEU's Motion to Expedite Consideration of this case is moot. Accordingly, we will not address the motion or the submissions filed relating to the motion.
B. Supplemental Authority
NTEU filed a Motion to File Supplemental Authority requesting the Authority to consider the decision of the U.S. Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. King, No. 91-5352 (D.C. Cir. March 31, 1992) (NTEU v. King).4/ In NTEU v. King, NTEU sought injunctive relief for SSA's alleged violation of NTEU's First Amendment rights based on the same facts underlying this unfair labor practice case. The District Court dismissed the case for NTEU's failure to exhaust administrative remedies. National Treasury Employees Union v. King, Civ.A.No. 91-2404, 1991 WL 229947 (D.D.C. Oct. 21, 1991) (mem.). The Court of Appeals reversed the District Court's decision and ordered the District Court to maintain the case on its docket in a suspended state until June 30, 1992, and to rule on NTEU's motion for injunctive relief if the Authority rules against NTEU in the unfair labor practice action or if the Authority fails to act by June 30, 1992. According to NTEU, the Court of Appeals "also ruled that the FLRA has the remedial authority to 'postpone the filing deadline or the election itself if the FLRA finds that the SSA has violated the NTEU's statutory rights.'" NTEU's Motion to File Supplemental Authority at 2 (quoting NTEU v. King, slip op. at 9-10).
AFGE does not oppose the request that we consider NTEU v. King. However, AFGE argues that "NTEU errs in characterizing the Court's remarks about the [A]uthority's remedial power as a 'holding.'" AFGE's Response to NTEU's Motion to File Supplemental Authority at 2. AFGE contends that the court's statement concerning the Authority's remedial authority "is pure dicta, with no binding force." Id. NTEU filed a motion to reply to AFGE's argument.
As the decision in NTEU v. King arises from the same facts as this case, we will supplement the record and take official notice of NTEU v. King. See 5 C.F.R. § 2429.5. However, in view of our determination in this case, we need not address the court's statement concerning the scope of our remedial authority.
IV. Positions of the Parties
A. Briefs to the Authority
1. General Counsel
The General Counsel argues that SSA violated section 7116(a)(1) of the Statute by interfering with, restraining, and coercing employees "in the exercise of their rights under . . . the Statute to receive information about a rival union challenging the incumbent union in the marketplace where employees work and where representational activity takes place." General Counsel's Brief at 4. The General Counsel contends that SSA discriminatorily applied its permit policy to NTEU because, among a group of outside organizations, only NTEU--a labor organization--was denied a permit to distribute literature in SSA's public areas. According to the General Counsel, SSA violated section 7116(a)(1) of the Statute because "[t]he only reason NTEU cannot obtain a permit to distribute literature on [the] Respondent's public space is because NTEU is a labor organization." Id. (citing U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034 (1991) (Ogden Service Center) and New York Telephone Co., 304 NLRB No. 33, 138 LRRM 1348 (1991)).
The General Counsel further argues that by precluding NTEU's non-employee organizers from using SSA's public areas, while permitting other non-employee, non-labor groups to use the areas, SSA "clearly 'assist[ed]' incumbent AFGE in retaining its incumbency" and, thus, violated section 7116(a)(3) of the Statute. Id.
The General Counsel asserts that SSA would not violate section 7116(a)(3) of the Statute if it permitted NTEU to distribute literature in public areas of the Woodlawn facility because "[u]nlawful assistance within the meaning of the Statute should not be read to condone the discriminatory treatment of a labor organization otherwise entitled under the law to challenge an incumbent." Id. at 6 (citing Department of Defense Dependents Schools, Mediterranean Region, Naples American High School (Naples, Italy) (DODDS), 21 FLRA 849 (1986)).
Finally, the General Counsel contends that the U.S. Supreme Court's decision in Lechmere, Inc. v. National Labor Relations Board, 112 S. Ct. 841 (1992) (Lechmere) does not apply to this case. In Lechmere, the Court found that the National Labor Relations Board (NLRB) "erred in concluding that [the employer] committed an unfair labor practice [under the National Labor Relations Act (NLRA)] by barring the nonemployee organizers from its property." Lechmere, 112 S. Ct. at 850. The General Counsel notes that, unlike this case, the employer in Lechmere owned the parking lot at issue and had not permitted any outside non-employee group to use the property.
NTEU argues that SSA violated section 7116(a)(1) of the Statute by discriminatorily applying a no-solicitation rule to NTEU. NTEU asserts that section 7116(a)(1) protects the "derivative" rights of "non-employee union organizers to conduct organizing activity that will assist employees in the exercise of their statutory rights to form, join, or assist a labor organization." NTEU's Brief at 2, 11. NTEU contends that an employer "may not treat similar union and non-union activities disparately" and that an employer's no-distribution rule is valid only if it "does not discriminate against the union by allowing other distribution." Id. at 12, 14 (citing NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) (Babcock)). In this regard, NTEU maintains that an employer "may not restrict handbilling by a non-employee union dissident in its parking lot where it permits political and commercial solicitation." Id. at 13 (citing Chrysler Corp., Dodge Truck Plant, 232 NLRB 466, 476 (1977) (Chrysler), aff'd mem. sub nom. Smith v. NLRB, No. 77-1938 (D.C. Cir. Feb. 7, 1979)).
NTEU states that the FPMRs encourage the use of public areas for cultural, educational, and recreational activities. Based on this policy of the FPMRs and on SSA's past practice of granting permits to outside organizations, NTEU argues that SSA does not have a uniform no-solicitation rule. Because "SSA does not maintain a uniform non-solicitation rule" at its Woodlawn facility, NTEU argues that SSA's denial of permits to NTEU to distribute union materials violates section 7116(a)(1) of the Statute. Id. at 16 (citing Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 43 FLRA 318 (1991) (HHS), petition for review filed sub nom. United States Department of Health and Human Services, Social Security Administration v. FLRA, No. 92-1078 (4th Cir. Jan. 23, 1992)).
NTEU also argues that SSA violated section 7116(a)(3) of the Statute by providing AFGE with "an invaluable monopoly on communication with [Woodlawn employees]." Id. at 3. Citing Department of the Air Force, Grissom Air Force Base, Peru, Indiana, 6 FLRC 406 (1978) (Grissom Air Force Base), NTEU asserts that section 7116(a)(3) imposes an obligation of neutrality upon employers that prohibits employers from granting a rival union access to non-public, as opposed to public, areas on its premises. NTEU contends that SSA has failed to remain neutral because it has denied NTEU access to Government property that is open to the public.
NTEU acknowledges that "SSA rather than GSA is responsible for the actual administration of the permit process" for access to its public areas. Id. at 21. However, NTEU contends that SSA's authority to grant or deny permits is limited by the FPMRs and that "SSA must follow the standards set out in the FPMR's" for granting or denying permits. Id. at 7. NTEU argues that "SSA did not have the authority to deny NTEU's permit requests under the [FPMRs]" because SSA's reason for denying the permits is not a circumstance cited in the FPMRs for disapproving a permit request. Id. at 22 n.6. In this regard, NTEU notes that "SSA did not assert the possibility of disruption in denying the permit . . . ." Id. at 22. NTEU further argues that SSA was precluded by the First Amendment from denying NTEU's permit requests.
NTEU contends that because SSA lacked the legal authority to deny NTEU's permit requests, SSA would not violate section 7116(a)(3) of the Statute by granting the requests. NTEU argues that its position is consistent with American Federation of Government Employees v. FLRA, 793 F.2d 333 (D.C. Cir. 1986) (AFGE I) and American Federation of Government Employees v. FLRA, 840 F.2d 947 (D.C. Cir. 1988) (AFGE II) because those cases would not find SSA in violation of section 7116(a)(3) where SSA "has no more authority under the governing regulations to deny NTEU access than did [the agency] in the AFGE cases." Id. at 21.
To remedy the alleged unfair labor practices, NTEU requests that the Authority order SSA to grant NTEU's permit requests. NTEU further asks for status quo ante relief that would extend the period for filing a petition for election "to accord NTEU the amount of time to collect signatures that it would have had if SSA had not violated its rights." Id. at 29.
SSA argues that it denied NTEU's permit requests "solely [based] on its understanding of the obligations imposed upon an agency by the provisions of § 7116(a)(3) of the Statute." SSA's Brief at 6. SSA states that because it "exercised unilateral control" over access to the public areas in question, it would have violated section 7116(a)(3) of the Statute had it granted a permit to NTEU, a labor organization without equivalent status. Id. SSA maintains that its position is consistent with court decisions holding that an agency violates section 7116(a)(3) of the Statute if the "agency even substantially participated in a decision to allow a rival union [without equivalent status] access to public areas adjacent to its workspace." Id. at 18 (citing AFGE I and AFGE II).
SSA argues that any right of access by NTEU must be narrowly drawn to achieve labor-management stability. SSA contends that "the plain terms of the Statute do not confer any rights upon unions without exclusive recognition or upon nonemployee organizers" and that there "is no allegation [or] evidence that NTEU's requests for permits were employee initiated." Id. at 8, 19.
SSA argues that its position is consistent with private sector precedent in which the U.S. Supreme Court stated that "'the NLRA confers rights only on employees, not on unions or their nonemployee organizers.'" Id. at 8 (quoting Lechmere, 112 S. Ct. at 845) (emphasis by the Court). SSA states that under the NLRA, the right to enter an employer's property is weighed against the employer's property right "only . . . after a finding that the non-employee organizers have no other reasonably available means of access." Id. at 8. Citing Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983) (Perry) and Department of the Army, U.S. Army Natick Laboratories, Natick, Massachusetts, 3 A/SLMR 193 (1973) (Natick), SSA asserts that its property interest is similar to private property interests. However, SSA states that there are differences between the NLRA and the Statute. In particular, SSA notes that, unlike the NLRA, "the language of § 7116(a)(3) mandates that the exclusivity of the incumbent be a factor in any . . . balancing." Id. at 10. Further, SSA maintains that, in this case, the "issue of whether or not NTEU has no other reasonably available means of access is not presented on the record before the Authority." Id. at 13 n.8 (citing Stipulation, paragraph 32).
In view of the restrictions of section 7116(a)(3), SSA argues that its denial of NTEU's permit requests did not constitute disparate treatment prohibited by the Statute. SSA contends that granting permits to organizations such as Mothers Against Drunk Driving and the American Legion "did not undermine the reasons for not allowing similar access by a rival union" because those organizations were "not similarly situated with NTEU . . . ." Id. at 20. SSA notes that Babcock held that, under the NLRA, an employer cannot legally discriminate between non-employee organizers and other non-employee groups with respect to a no-solicitation rule. However, SSA notes that Babcock did not involve an incumbent union.
Finally, with respect to NTEU's First Amendment claim, SSA notes that NTEU represented in its brief to the Court of Appeals in NTEU v. King that "it was not raising the First Amendment claim in the instant proceedings." Id. at 25 n.13. On the merits, SSA argues that its denial of access to NTEU did not implicate the First Amendment.
AFGE disputes NTEU's allegation that SSA assisted AFGE in violation of section 7116(a)(3) of the Statute. As "SSA is the sole party herein which possesses the power to grant permits providing access to the Woodlawn facility," AFGE argues that, under AFGE I and AFGE II, SSA would have violated the Statute if it had granted NTEU the permits. AFGE's Brief at 7.
In arguing that SSA did not improperly discriminate against NTEU, AFGE asserts that the Statute places "additional restrictions on the relationship between non-incumbent labor organizations and employers which are not present in an employer's relations with other third-party entities." Id. at 8 (emphasis deleted). AFGE further asserts that the Statute "clearly tempers any obligation to NTEU which might exist under the [FPMRs] governing occasional use of [G]overnment facilities." Id. at 9 (citing Perry). Moreover, AFGE claims that SSA's "policy of not granting access permits to non-incumbent labor organizations" prevents disruption of SSA's operations. Id.
AFGE also argues that SSA did not violate section 7116(a)(1) of the Statute. AFGE contends that the relevant rights protected under that statutory provision are employees' rights to have access to information about the labor organization and that, in this case, "[n]o SSA employees were charging parties along with NTEU in its charge." Id. at 4. AFGE states that "if a labor organization has alternative means of communicating with employees, no violation of § 7116(a)(1) occurs." Id. at 13 (citing Babcock). According to AFGE, a labor organization bears a heavy burden in showing that no reasonable alternative means exist and that, in this case, NTEU has shown "[n]o real proof" that there are no reasonable alternative means of communicating with the SSA unit employees at the Woodlawn facility. Id. at 14.
B. Response Briefs
NTEU argues that, contrary to SSA's statement, the Authority has recognized that the Statute protects "the rights of employees to meet with non-employee representatives of a rival labor organization in non-work areas where members of the public have unrestricted access." NTEU's Response at 2 (citing Department of Commerce, Bureau of the Census, 26 FLRA 719 (1987) (Bureau of the Census)). NTEU maintains that those rights would be "entirely unenforceable" if SSA had the power to prevent non-employees from obtaining access to public areas. Id. NTEU further maintains that nothing in Bureau of the Census or Babcock indicates that "non-employee union organizers' rights in public areas depend upon whether there has first been an employee-initiated request to allow the non-employee access." Id. at 3 n.2.
NTEU rejects SSA's reliance on AFGE I and AFGE II to support denying permits to NTEU. NTEU contends that AFGE I and AFGE II did not reach the question of whether the employing agency is required to deny a rival union access to public areas "if the employing agency (rather than GSA) administers the permit process . . . ." Id. at 5 n.3. NTEU argues that AFGE I and AFGE II did not examine the extent to which the GSA permit regulations limit the employing agency's control over the public areas. According to NTEU, the FPMRs do not permit the employing agency to deny a rival union's request to use public areas "solely because another labor organization represents the employees who work in adjacent buildings." Id. at 4-5. NTEU contends that SSA's control over the property in this case is no greater than the control of the employing agency in AFGE I and AFGE II.
NTEU also rejects SSA's contention that the property interests at issue in this case are similar to those of employers in the private sector. NTEU argues that SSA controls the public sidewalks at the Woodlawn facility "not in its capacity as employer (as it controls its own leased premises), but [as] an agent of the sovereign." Id. at 6-7. In these circumstances, NTEU maintains that SSA cannot assert "the sort of proprietary interest private sector employers possess to weigh against a union's right of access." Id. at 7.
AFGE argues that NTEU and the General Counsel fail to recognize that "it is entirely proper to discriminate in the treatment of a labor organization on the basis that it has not obtained a status equivalent with that of the incumbent labor organization." AFGE's Response at 2. AFGE distinguishes the discrimination cases cited by the General Counsel on the basis that those cases involved employees and/or labor organizations which were the exclusive representatives of employees.
AFGE disputes NTEU's suggestion that the public has "automatic, unrestricted access to the sidewalks of the Woodlawn facility." Id. at 3. AFGE also rejects NTEU's differentiation between internal and external agency facilities. Citing Natick, AFGE argues that the rule against granting access by rival labor organizations without equivalent status applies to an agency's "'premises and facilities.'" Id. at 6. According to AFGE, it "cannot be seriously argued in this case that the sidewalks at issue are not part of SSA's premises or facilities." Id. AFGE maintains that as NTEU does not have equivalent status, NTEU may not be granted access to SSA's premises.
With respect to NTEU's First Amendment claim, AFGE contends that "NTEU has expressly disavowed to the Court [in NTEU v. King] that this administrative action raises any claim of a constitutional violation." Id. at 8. AFGE maintains that "NTEU should be held to that position here." Id. On the merits, AFGE disputes NTEU's claim that the First Amendment precludes SSA from denying NTEU access to the Woodlawn facility.
V. Analysis and Conclusions
For the following reasons, we find that SSA did not violate section 7116(a)(1) and (3) of the Statute by denying NTEU's permit requests.
A. Section 7116(a)(3)
Section 7116(a)(3) of the Statute provides that it is an unfair labor practice for an agency to:
sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status[.]
As an initial matter, we note that there is no allegation or indication that NTEU has attained equivalent status under section 7116(a)(3). See generally U.S. Department of Defense Dependents School, Panama Region, 44 FLRA 419, 425 (1992). Accordingly, we find that at the time of the permit requests, NTEU had not attained equivalent status.
We next consider SSA's obligations under section 7116(a)(3) of the Statute regarding access to the sidewalks at the Woodlawn facility by a union lacking equivalent status. When a rival union lacking equivalent status requests access to an agency's premises or facilities for the purpose of organizing employees, an agency unlawfully assists the rival union within the meaning of section 7116(a)(3) of the Statute if the agency grants such a union access to the agency's premises or facilities. See AFGE II, 840 F.2d at 950; AFGE I, 793 F.2d at 336-37. See also Gallup Indian Medical Center, Gallup, New Mexico, 44 FLRA 217, 224 (1992) (Gallup Indian Medical Center); Department of Commerce, Bureau of Census, 24 FLRA 943, 946 n.2 (1986).
This rule has been applied to situations involving the grant of access to public areas of an agency's premises as defined by the FPMRs. See AFGE I and AFGE II. In this regard, we note that in AFGE I, the incumbent union (AFGE) charged the agency (Health Care Financing Administration or HCFA) with violating section 7116(a)(3) of the Statute by failing to prohibit a rival union lacking equivalent status (NTEU) from entering public areas of HCFA's facilities for the purpose of organizing employees. See AFGE I, 793 F.2d at 338 (the court held that the property in question "plainly" met the definition of public areas under the FPMRs). The court held that to resolve this issue, it was necessary to determine the extent of control exercised over the public areas by GSA and HCFA. The court stated that if HCFA had "exercise[d] control over access" to the public areas of its facilities, HCFA "could not lawfully permit a rival union [lacking equivalent status] to enter onto the premises for purposes of leafletting or solicitation." Id. at 334, 337. The court further stated that the Authority "properly conceded . . . that, but for the question of GSA involvement, there would be no doubt that permitting NTEU into the buildings in question (whether or not into actual work areas) would constitute unlawful assistance" under section 7116(a)(3) of the Statute. Id. at 337.
However, the court in AFGE I could not determine the extent of HCFA's authority to "permit (and therefore to prohibit) the NTEU solicitation in the public areas." Id. at 338. Accordingly, the court remanded the case to the Authority to determine whether HCFA had "actively participated in decisions pertaining to use of the . . . public areas" and whether the FPMRs conferred on HCFA "the authority to prevent the use of the public areas for the activities in question . . . ." Id.
On remand, the Authority found that GSA had "exclusive jurisdiction . . . to grant permits for the use of [the] public space" in question and that "HCFA did not have any control over these spaces." Department of Health and Human Services, Health Care Financing Administration, 24 FLRA 672, 676 (1986). The Authority further found that the General Counsel had "not met the burden of showing that HCFA ha[d] controlled, or influenced GSA's control over, the public spaces in question." Id. Finally, the Authority found that in the absence of influence or control over the public space in question, HCFA had no affirmative duty to persuade GSA to deny NTEU access to the public space. Accordingly, the Authority concluded that HCFA had not violated section 7116(a)(3) of the Statute when it failed to prohibit a rival union lacking equivalent status from entering public areas of its facilities for the purpose of organizing employees.
On appeal by AFGE, the court upheld the Authority's determination that HCFA did not violate section 7116(a)(3) of the Statute as the FPMRs "did not give HCFA authority to exclude the rival union's representatives from the adjacent public areas" in question and "HCFA did not in fact exercise control over the areas . . . ." AFGE II, 840 F.2d at 949. The court further upheld the Authority's finding that section 7116(a)(3) did not impose an affirmative duty on HCFA to attempt to persuade GSA to deny a rival union access to areas not under HCFA's control.
Consistent with AFGE I and AFGE II, it is clear that where an agency exercises no control over the public areas adjacent to its property, the agency does not violate section 7116(a)(3) of the Statute by failing to prohibit a rival union lacking equivalent status from entering those areas. However, it is also clear, under AFGE I and AFGE II, that if an agency influences or exercises control over access to such public areas, an agency would violate section 7116(a)(3) if it granted a union lacking equivalent status access to them.
Similar to the property in AFGE I and AFGE II, the sidewalks at issue in this case are public areas under section 101.20.400 et seq. of the FPMRs. See Stipulation, paragraph 22. However, unlike AFGE I and AFGE II, where GSA controlled the permit process, the parties in this case stipulate that, pursuant to a delegation agreement between GSA and HHS/SSA, "SSA is responsible for administering the permit process" by which access is granted to the public areas of the Woodlawn facility. Id., paragraph 26.5/ The delegation agreement authorizes SSA to grant or deny access to the public areas of the Woodlawn facility pursuant to the FPMRs. Section 101.20.400 through section 101.20.409 of the FPMRs provide the rules and regulations allowing GSA, or in this case SSA, to permit the "occasional use of public areas for cultural, educational and recreational activities as provided by the Public Buildings Cooperative Use Act of 1976 (Pub. L. 94-541)." 41 C.F.R. § 101.20.400. Therefore, under the delegation agreement and the FPMRs, SSA is authorized to grant permits for access to the public areas of the Woodlawn facilities for activities that SSA determines are cultural, educational, or recreational, and which do not constitute activities requiring the denial of access under section 101.20.403 of the FPMRs.
Further, the parties stipulate that SSA has in fact granted access to the public areas in question to outside groups, including the Little Sisters of the Poor, Mothers Against Drunk Driving, the Disabled American Veterans, and the American Legion. Therefore, unlike the employing agency in AFGE I and AFGE II, SSA has exercised control over access to the public areas in the past.
Based on the delegation agreement, the FPMRs, and SSA's past practice of granting access to the public areas of the Woodlawn facility, we find that SSA clearly exercises control over the public areas in question. As discussed below in connection with NTEU's argument on this issue, we further find that SSA has the discretion under the FPMRs to grant or deny permit requests and that nothing in the FPMRs precludes SSA from exercising that discretion. As SSA exercises control over the public areas in question and as SSA is the employing agency of employees represented by an incumbent union, we find, in the absence of the exception noted below, that under AFGE I and AFGE II, SSA would have violated section 7116(a)(3) of the Statute had it granted NTEU a permit to enter the public areas for the purpose of distributing literature to those SSA employees.
The "sole exception" to the rule prohibiting an agency from granting access to its property pursuant to AFGE I and AFGE II is that a union lacking equivalent status "may obtain access to an agency's facilities if it demonstrates to the agency that, after diligent effort, it has been unable to reach the agency's employees through reasonable, alternative means of communication." AFGE I, 793 F.2d at 337 n.9. This exception was recognized by the Assistant Secretary of Labor for Labor-Management Relations (Assistant Secretary) under Executive Order 11491, the predecessor to the Statute. See Natick, 3 A/SLMR at 196 (a labor organization lacking equivalent status may be granted access to agency or activity premises "only in circumstances where it can be established that the employees involved are inaccessible to reasonable attempts by the labor organization to communicate with them outside the agency's or activity's premises").6/
The employees in Natick resided in scattered areas throughout a large metropolitan area. The facility in Natick was guarded and enclosed by a high fence. Employees were difficult to reach entering and exiting the facility because the majority of employees drove to the facility and distribution of materials to those employees would have had to be done from the street. See id. at 201-02. The Assistant Secretary found that an employer may grant access to its facility to non-employee representatives of a rival union in special circumstances where the rival union "has made a diligent, but unsuccessful, effort to contact the employees away from the [employer's] premises and that its failure to communicate with the employees was based on their inaccessibility." Id. at 196. Applying that standard, the Assistant Secretary concluded that the evidence did not support the contention that the employees were inaccessible outside the employer's premises. The Assistant Secretary noted that the rival union:
did reach some of the employees by mail, that others were accessible, that only one major location was involved . . . and that there [was] no evidence that [the rival union] requested employees to distribute literature during their non-work times in non-work areas on the [employer's] premises.
We agree with the reasoning of Natick and will apply it to this case. See Gallup Indian Medical Center, 44 FLRA at 225-26. We find that the record does not establish that SSA employees at the Woodlawn facility were inaccessible outside of the facility.
NTEU argues that it "has virtually no opportunity to communicate with the employees" at the Woodlawn facility and that this "lack of access seriously hinders NTEU's organizing efforts." NTEU's Brief at 4. Further, the parties stipulate that NTEU has not waived its right to allege that it has no reasonable alternative means to communicate with the SSA employees at the Woodlawn facility.
As was the situation in Natick, NTEU has alleged in this case that it was unable to reach SSA employees at only one site. Similar to the employees in Natick, the employees at the Woodlawn facility live throughout a large metropolitan area and are difficult to reach entering and exiting the facility. NTEU has attempted to contact employees through various means and has had some success. NTEU has used a commercial search firm through which it has located 6 percent of Woodlawn employees and, through contacts with employees and searches of local phone books, it has doubled its list of home addresses. NTEU also has passed out leaflets on city buses entering the Woodlawn facility, met with groups of employees, and met with some employees at home. There is no evidence that NTEU "requested employees to distribute literature during their non-work times in non-work areas on the [agency's] premises." Natick at 196. On the record before us, we find that employees in this case are no more inaccessible than were the employees in Natick.
NTEU argues that the alternative means of communicating with SSA employees at the Woodlawn facility are inadequate as they are costly and do not necessarily provide face-to-face contact with employees. See Stipulation, Joint Exhibit No. 14 at 3-4. However, we find, as described above, that the situation facing NTEU is similar to the situation facing the rival union in Natick. In Natick, the record did not show that the employees were inaccessible outside the activity's premises. Similarly, the record in this case does not show that SSA's Woodlawn employees are inaccessible outside the Woodlawn premises or that any inability of NTEU to reach SSA employees at the Woodlawn facility is due to the employees' inaccessibility, rather than other factors such as cost. In view of our finding that the situation facing NTEU is similar to the situation facing the rival union in Natick, we conclude that no special circumstances exist that would warrant applying the exception to the rule articulated in AFGE I and AFGE II. Accordingly, we conclude that SSA would have violated section 7116(a)(3) of the Statute had it granted NTEU a permit to the public areas of the Woodlawn facility. Thus, in denying NTEU's permit requests, SSA did not unlawfully assist AFGE in violation of section 7116(a)(3) of the Statute.
We reject the General Counsel's argument that SSA would not have violated section 7116(a)(3) had it granted NTEU's permit requests because "[u]nlawful assistance within the meaning of the Statute should not be read to condone the discriminatory treatment of a labor organization otherwise entitled under the law to challenge an incumbent." General Counsel's Brief at 6 (citing DODDS). Consistent with the court's decisions in AFGE I and AFGE II, an agency that influences or controls access to the public areas adjacent to its property violates section 7116(a)(3) of the Statute if it grants a union lacking equivalent status access to those public areas. Therefore, where access to property within the agency's control is concerned and where agency employees are represented by an incumbent union, section 7116(a)(3) of the Statute requires the agency to treat a union lacking equivalent status differently from other organizations. Further, the General Counsel's reliance on DODDS is misplaced. DODDS did not involve a question of equivalent status or access to agency property by non-employee organizers of a rival union. Rather, DODDS concerned the right of a unit employee to post rival union literature on agency property.
We also reject NTEU's argument that SSA violated section 7116(a)(3) when it denied a rival union access to public, as opposed to non-public, areas of Government property because, according to NTEU, SSA's obligations are different when the property involved constitutes a public area under the FPMRs. See NTEU's Brief at 19 (citing Grissom Air Force Base). The property at issue in AFGE I and AFGE II also was public. Nevertheless, the court stated that HCFA would have violated section 7116(a)(3) of the Statute if it possessed "authority to permit (and therefore to prohibit)" the distribution or solicitation in the public areas by the rival union lacking equivalent status. AFGE I, 793 F.2d at 338. As SSA has the authority to permit and prohibit NTEU from gaining access to the public areas of the Woodlawn facility, SSA would have violated section 7116(a)(3) of the Statute had it granted NTEU a permit when NTEU lacked equivalent status. In these circumstances, SSA properly denied NTEU access to its premises and, contrary to NTEU's argument, did not violate section 7116(a)(3) of the Statute. In this regard, NTEU's reliance on Grissom Air Force Base is misplaced. Unlike this case, Grissom Air Force Base involved an agency's obligation to remain neutral "in areas beyond the agency's direct control." AFGE II, 840 F.2d at 955 (citing Grissom Air Force Base).
NTEU argues further that SSA had "no more authority under the governing regulations to deny NTEU access than did HCFA in the AFGE cases" because "SSA did not have the authority to deny NTEU's permit requests under the [FPMRs]." NTEU's Brief at 21, 22. We disagree. As we have found, SSA was authorized under the delegation agreement and the FPMRs to grant permits for access to the public areas of the Woodlawn facilities for activities that SSA determines are cultural, educational, or recreational, and which do not constitute activities requiring the denial of access under section 101.20.403 of the FPMRs.7/ Nothing in the FPMRs permits SSA to grant an organization a permit to conduct cultural, educational, or recreational activities in the public areas where doing so would violate law. Accordingly, the FPMRs do not preclude SSA from denying NTEU's permit requests in the circumstances of this case. Further, as the delegation agreement and the FPMRs authorized SSA to exercise control over access to the public areas of the Woodlawn facility, and as SSA has in fact exercised control over access to those areas in the past, we conclude that the authority exercised by SSA in this case is clearly greater than, and distinguishable from, HCFA's authority in AFGE I and AFGE II.
Finally, we note NTEU's contention that SSA was precluded from denying NTEU's permit requests by the First Amendment. We are aware of the decision of the U.S. Supreme Court in Perry. However, in this unfair labor practice proceeding, we do not address the extent to which NTEU's activities may be protected by the U.S. Constitution. See Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 671 n.6 (1991); National Association of Government Employees, Local R14-9 and U.S. Army, Dugway Proving Ground, Dugway, Utah, 30 FLRA 1083, 1084 (1988). See also NTEU v. King, slip op. at 7 ("NTEU's claim involves constitutional rights not adjudicable in the administrative hearing").
Accordingly, for the foregoing reasons, we find that SSA did not violate section 7116(a)(3) of the Statute by denying NTEU's permit requests.
B. Section 7116(a)(1)
NTEU and the General Counsel argue that SSA discriminatorily applied its permit policy to NTEU in violation of section 7116(a)(1) of the Statute. In this regard, the General Counsel argues that "[t]he only reason NTEU cannot obtain a permit to distribute literature on [the] Respondent's public space is because NTEU is a labor organization." General Counsel's Brief at 4 (citing Ogden Service Center and New York Telephone Co.). Further, NTEU contends that an employer's no-distribution rule is valid only if it "does not discriminate against the union by allowing other distribution." NTEU's Brief at 12 (citing Babcock). According to NTEU, "SSA does not maintain a uniform non-solicitation rule" at its Woodlawn facility and, therefore, SSA's rule is contrary to section 7116(a)(1). Id. at 16 (citing HHS).
For the following reasons, we find that SSA did not violate section 7116(a)(1) of the Statute when it denied NTEU's permit requests, while at the same time granting permits to other organizations such as the American Legion and Mothers Against Drunk Driving.
We have already found that SSA would have violated section 7116(a)(3) had it granted NTEU access to public areas of the Woodlawn facility within SSA's control. Put simply, section 7116(a)(3) of the Statute required SSA to treat NTEU differently from other organizations, including the American Legion and Mothers Against Drunk Driving.
NTEU asserts that its non-employee organizers possess rights "derivative" of employees' rights under section 7102 of the Statute, and that SSA violated section 7116(a)(1) of the Statute by interfering with the exercise of those rights. NTEU's Brief at 11. NTEU further asserts that nothing in public or private sector case law indicates that "non-employee union organizers' rights in public areas depend upon whether there has first been an employee-initiated request to allow the non-employee access." NTEU's Response at 3 n.2. According to NTEU, requiring such a request would "undermine the very rights the [Statute] protects by precluding uninformed employees from acquiring information they need to exercise their rights." Id.
Section 7102 of the Statute protects the rights of employees to distribute and receive union-related literature during non-work times in non-work areas. See Bureau of the Census. However, there is no evidence in