47:1376(128)CA - - SSA and NTEU and AFGE, - - 1993 FLRAdec CA - - v47 p1376



[ v47 p1376 ]
47:1376(128)CA
The decision of the Authority follows:


47 FLRA No. 128

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

(Respondent/Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party/NTEU)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Intervenor/AFGE)

3-CA-10859

(45 FLRA 303 (1992))

_____

DECISION AND ORDER ON REMAND

July 27, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. FLRA, 986 F.2d 537 (D.C. Cir. 1993) (NTEU v. FLRA). 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 following reasons, we conclude that the complaint must be remanded to the Regional Director for appropriate action.(*)

II. Background

AFGE is the exclusive bargaining representative of a nationwide unit of Social Security Administration (SSA) employees. When this case arose, NTEU was conducting a nationwide campaign to become the exclusive representative of SSA's employees in the bargaining unit represented by AFGE.

Approximately 9,000 bargaining unit members are located at SSA's headquarters complex in Woodlawn, Maryland. The Woodlawn complex is operated jointly by the General Services Administration (GSA) and SSA. Consistent with the procedures set out in 41 C.F.R. §§ 101-20.400 et seq., SSA administers a permit process whereby applicants request permits from SSA to use the public areas of the Woodlawn complex. On several occasions, NTEU requested, and was denied, permits for its organizers, who were not employed by SSA, to distribute literature on sidewalks outside the entrances to the Woodlawn complex.

NTEU filed an unfair labor practice charge, and the General Counsel issued a complaint, alleging that SSA violated section 7116(a)(1) and (3) of the Statute when it denied NTEU's permit requests. Based on a stipulated record, the Authority concluded in Social Security Administration, 45 FLRA 303 (1992) that SSA did not violate the Statute as alleged in the complaint. In particular, the Authority found that, consistent with the court's decisions in 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), SSA, as an employer at the Woodlawn complex, would have violated section 7116(a)(3) of the Statute had it granted NTEU's permit requests.

In NTEU v. FLRA, the court stated that "[t]his court has interpreted § 7116(a)(3) as requiring an agency to exclude a union without status equivalent to that of the incumbent union . . . from 'its premises' or 'its facilities.'" NTEU v. FLRA, 986 F.2d at 540 (quoting AFGE I, 793 F.2d at 337 n.9). The court found that the Authority did not determine whether the outside areas of the Woodlawn complex, which SSA administers but which are not leased to SSA, constitute SSA's "premises" or "facilities" for the purposes of section 7116(a)(3) of the Statute. Id. The court stated that "[i]f they do not, then in granting a permit for access thereto [SSA] would presumably be acting in its capacity as the GSA's building manager and not in its capacity as an employer." Id. The court found that "the Authority ought to consider this statutory question, mindful of the first amendment implications of its determinations." Id. Accordingly, the court remanded the case to the Authority to determine whether the outside areas of the Woodlawn complex are SSA's premises or facilities for the purposes of section 7116(a)(3) of the Statute.

III. Analysis and Conclusions

Pursuant to the court's decision in NTEU v. FLRA, we must determine whether the public areas of the Woodlawn complex are SSA's premises or facilities for the purposes of section 7116(a)(3) of the Statute. However, we are unable to make that determination on the basis of the stipulated record in this case. Accordingly, we will remand this case to the Regional Director for further processing so that a sufficient record is developed upon which the Authority can make a determination in accordance with the court's remand.

IV. Order

The compl