52:1159(114)CA - SSA and NTEU and AFGE - 1997 FLRAdec CA - v52 p1159
[ v52 p1159 ]
The decision of the Authority follows:
52 FLRA No. 114
FEDERAL LABOR RELATIONS
AUTHORITY WASHINGTON, D.C.
SOCIAL SECURITY ADMINISTRATION
NATIONAL TREASURY EMPLOYEES UNION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
3-CA-10859 (45 FLRA 303 (1992)) (47 FLRA 1376 (1993)) (48 FLRA 539 (1993))
DECISION AND ORDER ON REMAND
March 14, 1997
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members. (1)
I. Statement of the Case
This unfair labor practice case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. National Treasury Employees Union v. FLRA, 986 F.2d 537 (D.C. Cir. 1993) (NTEU v. FLRA). At issue in this case is the interpretation and application of sections 7116(a)(1) and (3) of the Federal Service Labor-Management Relations Statute (the Statute).
The Authority previously ruled that the Social Security Administration (SSA or Agency) did not commit an unfair labor practice (ULP) when it denied the National Treasury Employees Union (NTEU) a permit to distribute literature on the outdoor areas of the Agency's headquarters complex. Social Security Administration and National Treasury Employees Union and American Federation of Government Employees, 45 FLRA 303 (1992) (Social Security Administration). In its remand, the court directed the Authority to take into account the constitutional ramifications of alternative interpretations of the Statute. Additionally, the court remanded for the Authority to determine, in order to avoid uncertain constitutional implications, whether the public areas in question are SSA's "facilities" for the purpose of section 7116(a)(3) because this determination could affect whether SSA was acting as an employer or a building manager for the General Services Administration (GSA) in this case. NTEU v. FLRA, 986 F.2d at 540.
On further consideration of this matter, we modify the Authority's interpretation of an employing agency's obligations under section 7116(a)(3) and conclude, for the reasons explained below, that SSA did not violate section 7116(a)(3) of the Statute. We further conclude, for reasons explained below, that SSA did not violate section 7116(a)(1) of the Statute in denying NTEU the permit sought in this case. (2)Because of the conclusions we reach herein, it is not necessary to resolve the facilities question posed by the court.
The facts, established by two stipulations and set out fully in the Authority's previous decision (Social Security Administration, 45 FLRA at 304-06), are summarized briefly herein. The American Federation of Government Employees (AFGE) is the exclusive representative of a nationwide unit for SSA employees. Although these bargaining unit employees are dispersed at approximately 1300 sites across the country, 9,000 bargaining unit employees are located at SSA's headquarters facility at Woodlawn, Maryland (Woodlawn).
The SSA headquarters complex at Woodlawn consists of office buildings, parking lots, lawns, and pedestrian sidewalks that offer access to the buildings. The Woodlawn facility is operated jointly by SSA and GSA pursuant to a delegation agreement between GSA and the Department of Health and Human Services. The sidewalks surrounding Woodlawn's office buildings are considered public areas for the purposes of the Federal Property Management Regulations (FPMRs); however, persons or organizations desiring to use these public areas must obtain a permit to do so. 41 C.F.R. 101-20.401. Under the delegation agreement, SSA is responsible for administering the permit process.
In May 1991, SSA denied an NTEU organizer, who was not an SSA employee, a permit to distribute literature on the sidewalks of the Woodlawn facility. SSA also denied NTEU's appeal of the Agency's refusal to issue a permit. Between November 1989 and April 1991, SSA had granted permits to distribute various information and materials on the Woodlawn sidewalks to the Disabled American Veterans, Mothers Against Drunk Driving, the Little Sisters of the Poor, and the American Legion. The record does not indicate whether any other organizations sought permits from SSA.
B. Litigation of the Access Issue
NTEU challenged SSA's refusal to issue a permit in two forums. First, NTEU filed suit in the United States District Court for the District of Columbia alleging that SSA's refusal to permit the distribution of literature violated NTEU's First Amendment right to free speech. Second, NTEU filed the ULP charge which formed the basis of the instant case alleging that in denying the permit, SSA both unlawfully assisted AFGE in violation of section 7116(a)(3) and discriminated against NTEU in violation of section 7116(a)(1).
1. NTEU's Constitutional Claim Against SSA
The district court initially dismissed NTEU's complaint without reaching the merits of the First Amendment claim, finding that NTEU was required to first exhaust its administrative remedies, i.e., its pending unfair labor practice charges. National Treasury Employees Union v. King, 961 F.2d 240, 242 (D.C. Cir. 1992) (King I).
On appeal, the D.C. Circuit remanded the case and ordered that it be maintained on the district court's docket until June 30, 1992, or the date when the Authority issued its decision in the unfair labor practice proceeding, whichever came first. At that time, NTEU could renew its motions for relief in the district court. King I, 961 F.2d at 245.
After the Authority issued its decision in Social Security Administration, on June 22, 1992, dismissing the ULP complaint, the district court proceeding was reinstituted. The district court found that the sidewalks at Woodlawn constituted a "public forum" and that SSA had violated NTEU's First Amendment rights by denying access to those areas. NTEU v. King, 798 F. Supp. 780 (D.D.C. 1992) (King II).
AFGE, intervenor in the case, appealed to the D.C. Circuit. (NTEU v. King, No. 92-5272). That case, argued on the same day and before the same panel as NTEU v. FLRA, remains pending.
2. The ULP Allegations Against SSA
a. The Authority's Determination on the ULP
The Authority concluded that SSA did not violate sections 7116(a)(1) or (3) of the Statute when it denied NTEU access to the Woodlawn complex and, therefore, dismissed the ULP complaint. Social Sec. Admin., 45 FLRA at 304.
The Authority found that, had SSA granted NTEU's request for permission to distribute literature in Woodlawn's "public areas," it would have violated section 7116(a)(3) by unlawfully assisting NTEU. Id. at 320. In making this determination, the Authority concluded that, when a rival union lacking "equivalent status" 3/ requests access to an "agency's facilities" for the purpose of organizing employees, the agency unlawfully assists the rival union within the meaning of section 7116(a)(3) of the Statute if the agency grants such access. Id. at 315. Central to the Authority's reasoning was the finding that SSA, as a result of the delegation from GSA, exercised control over access to the public areas at the Woodlawn facility. Id. at 317-18.
The General Counsel and NTEU argued that NTEU should have been granted access to the Woodlawn public areas despite its lack of equivalent status because it was unable to reach the SSA's employees through alternative means of communication. Acknowledging that this was an exception to the general rule prohibiting access to a union lacking equivalent status, the Authority concluded nonetheless that NTEU had failed to show that the SSA employees were inaccessible outside of the Agency's premises. Id. at 320.
The Authority also rejected the contention that SSA discriminatorily applied its permit policy in violation of section 7116(a)(1) of the Statute. Id. at 323. Noting its conclusion that SSA would have violated section 7116(a)(3) of the Statute if it had granted NTEU access, the Authority held that, in this case, the Statute mandated that NTEU's non-employee organizers be treated differently than the non-labor organizations to which SSA had granted access. Id. Accordingly, the Authority concluded that there had been no illegal discrimination.
b. The D.C. Circuit's Review of the Authority's Decision
In NTEU v. FLRA, the court found that by interpreting section 7116(a)(3) as a bar to SSA permitting NTEU to distribute literature on the sidewalks of the Woodlawn complex, the Authority had drawn the constitutionality of that section "seriously into question." 986 F.2d at 539. In this regard, the court referenced the district court's finding in King II (also on appeal) that the sidewalks are a "public forum" and that SSA had abridged NTEU's First Amendment right of free speech. Id. (citing King II, 798 F. Supp. at 788).
The court directed the Authority to "consider the constitutional implications of its choice between permissible interpretations of the Statute." Id. The court further stated that, although an agency is not obliged to adopt an interpretation that avoids a constitutional issue, the consequences of adopting one of several reasonable interpretations without regard to the constitutional question presented could be "most untoward." Id. at 540.
Finally, the court noted that the outside areas at Woodlawn, which SSA administers pursuant to the delegation order from GSA but does not lease for its own purposes, may not constitute "[SSA's] facilities" within the scope of section 7116(a)(3). Id. at 540. According to the court, if these areas are not SSA's facilities, then SSA would presumably not be liable under the Statute because it would not be acting as employer, but rather as "GSA's building manager." Id. The court remanded the case to the Authority to determine whether Woodlawn's "public areas" are "[SSA's] facilities" for the purposes of that section of the Statute.
III. Positions of the Parties
Subsequent to the court's remand, the parties were given the opportunity to present their views in both briefs and an oral argument before the Authority. (4) The positions of the parties are as follows.
A. General Counsel
Counsel for the General Counsel (hereinafter, General Counsel) urges the Authority to reverse its earlier determination and find that public areas which SSA administers as GSA's building manager are not "facilities" within the scope of section 7116(a)(3). Further, and in response to the Authority's Notice of Oral Argument, the General Counsel contends that the provision in section 7116(a)(3), which permits agencies to furnish customary and routine services and facilities on an impartial basis to labor organizations of equivalent status, constitutes an exception to the section's more general prohibition on sponsorship, control, or assistance to labor organizations. In the General Counsel's view, denying a permit to NTEU "assisted" AFGE in violation of section 7116(a)(3).
With respect to the section 7116(a)(1) charge, the General Counsel asserts that SSA discriminated against NTEU and that SSA's employees have a right to receive information about NTEU.
NTEU first argues that the Authority's construction of section 7116(a)(3) in Social Sec. Admin. raises significant constitutional issues, referencing the district court's determination that SSA violated NTEU's First Amendment rights by denying it a permit to distribute leaflets on the sidewalks.
Second, NTEU contends that the public areas at issue are not leased to SSA for its own use, but rather SSA administers these areas as GSA's representative. Accordingly, NTEU asserts that SSA is required to administer these areas as GSA would, in accordance with the applicable FPMRs. NTEU concludes that these areas should not be considered SSA's facilities.
Third, NTEU argues that denying rival unions access to public areas does not serve section 7116(a)(3)'s purpose of assuring agency neutrality and preventing interference in employees' choice of their bargaining representative. NTEU contends that the portion of section 7116(a)(3) that refers to the furnishing of routine services and facilities to unions of equivalent status is an exception to the prohibition on assistance. According to NTEU, that proviso does not create an obligation to furnish such services and facilities, but only makes it clear that there is no prohibition against doing so.
Last, NTEU asserts that discriminating against a labor organization, as compared to other organizations and members of the public, violates section 7116(a)(1) of the Statute.
AFGE argues that there is no support for finding that the public areas are not "SSA's facilities" under section 7116(a)(3). In this regard, AFGE points out that a distinction has never been drawn between internal and external features of an agency's premises. AFGE further contends that it is the extent of an agency's control that determines whether the area is the agency's facility and that SSA exercises considerable control over access to the public areas in question.
Because the Woodlawn public areas are the Agency's facilities, AFGE asserts that the Authority should reaffirm its determination that had SSA granted a permit to NTEU, SSA would have violated section 7116(a)(3). In response to the Authority's Notice of Oral Argument, AFGE asserted that section 7116(a)(3) requires agencies to provide rival unions with equivalent status routine and customary services and facilities provided the incumbent union.
AFGE argues that section 7116(a)(1) protects employees, not labor organizations.
SSA asserts that in denying NTEU a permit, it was acting as an employer in a collective bargaining relationship and not simply as a building manager for GSA. Accordingly, providing NTEU such access to its facilities would have violated section 7116(a)(3). SSA asserts that the furnishing of services and facilities is an exception to the statutory bar on sponsorship, control, and assistance, but contends that an agency is only required to furnish "customary and routine services and facilities" to unions with equivalent status.
SSA argues that section 7116(a)(1) does not cover NTEU's non-employee organizers. As a result, in denying NTEU access, SSA did not violate section 7116(a)(1).
IV. Analysis and Conclusions
The court's remand requires the Authority to examine, within the context of this case, the meaning and purpose of section 7116(a)(3) of the Statute. In conducting this analysis, we start with the wording of section 7116(a)(3), trace its evolution, review administrative and judicial precedent interpreting both this section and its predecessor under Executive Order 11491, and set out what we believe to be the meaning and purpose of the section. As a result of this examination, we establish a revised analytical framework for evaluating cases arising under section 7116(a)(3). In applying this framework, we conclude that SSA did not violate section 7116(a)(3) as alleged in the complaint.
We then review the purpose and meaning of section 7116(a)(1) in the context of non-employee organizers being denied access to agency premises and establish an analytical framework for evaluating such cases. Having adopted this framework, we apply it and conclude that SSA did not violate section 7116(a)(1) in this case.
B. Section 7116(a)(3) of the Statute Prohibits an Agency from Sponsoring, Controlling, or Assisting a Labor Organization
1. The Terms and Origin of Section 7116(a)(3)
Resolution of the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (citation omitted). Section 7116(a)(3) of the Statute makes it a ULP 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 plainly worded, section 7116(a)(3) expresses both a broad prohibition and an exception thereto: first, it prohibits specified improper relationships between agencies and labor organizations; and second, it clarifies that the furnishing of routine services and facilities under certain circumstances is not included within the broad prohibition.
The legislative history pertaining to section 7116(a)(3) sheds little light on what Congress intended. In this regard, there is only a brief example, in the House Report, of permissible assistance under the section -- "providing equal bulletin board space to two labor organizations which will be on the ballot in an exclusive representation election[.]" H.R. Rep. No. 1403, 95th Cong., 2d Sess. 49 (1978), reprinted in Subcomm. on Postal Personnel and Modernization of the Comm. on Post Office and Civil Service, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 695. Consistent with this example, affording equal treatment to two unions in an election context would not equate to sponsorship, control, or assistance.
The language enacted by Congress is patterned after Section 19(a)(3) of Executive Order 11491 (1969) (the Order), which governed federal sector labor relations prior to the passage of the Statute. (5)Under section 19(a)(3), it was an unfair labor practice for an agency:
to sponsor, control, or otherwise assist a labor organization, except that an agency may furnish customary and routine services and facilities under section 23[ (6)] of this Order when consistent with the best interests of the agency, its employees, and the organization and when the services and facilities are furnished, if requested, on an impartial basis to organizations having equivalent status[ (7) ]. . . .
Interpretations of this provision have played a significant role in establishing how section 7116(a)(3) has come to be understood.
2. Administrative and Judicial Precedent under the Executive Order and the Statute
A decision of the Assistant Secretary for Labor Management Relations (ASLMR) interpreting Section 19(a)(3) of the Order led to the Authority's construction of section 7116(a)(3) in Social Security Administration as an absolute bar to allowing rival unions lacking equivalent status access to agency facilities. In justifying his decision in Department of the Army, U.S. Army Natick Laboratories, Natick, Mass., 3 A/SLMR 194 (1973) (Natick), the ASLMR utilized broad language to explain the result reached. This language, quoted below, has been applied by the Authority to address situations different from those presented in Natick; additionally, this language has been cited with approval by both the Authority and the United States of Court of Appeals for the District of Columbia Circuit.
a. Interpretations of Section 19(a)(3) of the Executive Order
In Natick, three non-employee representatives of AFGE were allowed access to an agency's premises for the purpose of conducting an organizational campaign. At the time, the agency was negotiating a new agreement with its exclusive representative, a local of the National Association of Government Employees. The Administrative Law Judge (ALJ) concluded that section 19(a)(3) of the Order did not prohibit the agency from allowing access to rival unions lacking equivalent status so long as the agency did not display favoritism toward either union. In the ALJ's view, by granting temporary access on terms equivalent to the incumbent, the agency did not, in and of itself, sponsor, control, or assist. 3 A/SLMR at 206.
On review, the ASLMR disagreed, concluding that absent equivalent status, an agency may not furnish a rival with the use of its services and facilities. "To hold otherwise would . . . grant to an agency or activity the power to pick and choose the particular rival labor organization it desires to unseat an incumbent." Id. at 196. In making this statement, the ASLMR did not address whether the prohibition against sponsorship, control, or assistance, or the proviso in section 19(a)(3) (requiring the furnishing of facilities on an impartial basis) could operate to prevent such partiality by an agency.
The ASLMR also noted that an agency could jeopardize the stability of labor-management relations by "using as leverage in the bargaining relationship the power to permit representatives of a rival labor organization on its premises at any time." Id. In raising this concern, the ASLMR did not analyze whether such agency conduct would otherwise be an unfair labor practice for, by example, failing to negotiate in good faith as required by sections 19(a)(6) and 11(a) of the Order.
The ASLMR went on to note, however, that under section 19(a)(3) of the Order, such non-employee representatives may be furnished agency facilities or services "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." Id. This limited exception was premised upon section 1(a) of the Order which was the forerunner of section 7102 of the Statute, and protected, inter alia, the rights of employees to "form, join, or assist a labor organization, or to refrain from any such activity. . . ." Id.
The Natick rationale was only once subjected to direct review by the Federal Labor Relations Council (FLRC). (8)Department of the Air Force, Grissom Air Force Base, Peru, Indiana and Local 1434, NFFE and Local 3254, AFGE, 6 FLRC 407 (1978) (Grissom). In Grissom, the agency had not taken steps to prevent the publication of a paid advertisement by a rival union in a newspaper over which, although privately owned and published, the agency exercised some control. 6 FLRC at 408. The ASLMR found that the paper was, in effect, "an instrumentality of [the base]," and ruled that a ULP had occurred. Local 3254, American Federation of Government Employees, 7 A/SLMR 486, 487 (1977).
The Council reversed. Rejecting the approach followed by the ASLMR, the Council found that the agency management took no affirmative action in the case and therefore had not offered improper assistance or control in violation of the Order in this case. In reaching the conclusion that the ASLMR's finding was inconsistent with the history and purposes of section 19(a)(3), the Council concluded that:
Section 19(a)(3) was clearly intended . . . to prevent agency management from dominating or controlling a labor organization by contributing financial or other support to it and to preserve the independence of such organizations from agency manipulation.
Grissom, 6 FLRC at 411-12.
b. The Authority's Interpretation of Section 7116(a)(3) of the Statute
Prior to the Authority's consideration of the case now before us (Social Sec. Admin.), the Authority had not directly considered an unfair labor practice case where a rival, lacking equivalent status, sought and was denied access to agency facilities. (9) However, in a limited number of cases, the Authority has considered the issue of access to agency premises.
For example, the Authority addressed an agency's obligations under the Statute when a rival union sought to solicit on GSA-owned public areas adjacent to the agency's premises. In Department of Health and Human Serv., Health Care Financing Admin. and American Federation of Government Employees and National Treasury Employee's Union, 24 FLRA 672, 676 (1986) (HHS), the Authority analyzed whether the agency had exercised control over such public areas. Where GSA had control over the public space, the Authority determined that the agency had no obligation to prohibit the rival union, lacking equivalent status, from entering the agency's public areas. (10)
Shortly after Social Sec. Admin., in U.S. Department of the Air Force, Barksdale Air Force Base, Bossier City, Louisiana and NFFE, Local 1953, 45 FLRA 659 (1992) (Barksdale Air Force Base), the Authority was presented with another case where an agency had granted a rival union, lacking equivalent status, access to its premises for the purpose of conducting an organizational campaign. However, in concluding that the agency had violated section 7116(a)(3), the only issue considered by the Authority in that case involved the adequacy of alternative methods of communication available to the rival union. Id. at 665.
In sum, a review of Authority precedent reveals that it was not until Social Sec. Admin. that the Authority directly applied the Natick rationale to conclude that an agency properly denied access to agency premises to a rival labor organization lacking equivalent status because section 7116(a)(3) prohibits an agency from granting such access.
c. Judicial Review Involving Section 7116(a)(3)
The United States Court of Appeals for the District of Columbia Circuit has quoted the Natick rationale in several cases. However, the court has not specifically considered whether the Natick approach would, in circumstances other than those where the employees are otherwise inaccessible, prohibit an agency from granting access to its routine facilities and services to a rival union lacking equivalent status.
For example, the court has cited Natick and noted that the law was settled, under both the Executive Order and the Statute, "that an agency generally may not provide access to or use of its facilities to any labor organization without equivalent status.'" American Federaton of Government Employees v. FLRA, 793 F.2d 333, 336-37 n.9 (D.C. Cir. 1986) (AFGE I). However, whether an agency could, in light of section 7116(a)(3) ever permit such access, was not at issue in that case: The court stated in this respect that it was "undisputed that, under the circumstances presented, the Agency could not lawfully permit use of or grant access to the nonpublic areas of its facilities to any union other than AFGE, the exclusive representative of its employees." Id. at 334 (emphasis added). (11)
In NTEU v. FLRA, wherein the court reviewed the Authority's decision in Social Security Administration, the Natick decision was referenced but not specifically analyzed. The D.C. Circuit quoted from the language of AFGE I: "[B]ut for the question of GSA involvement, there would be no doubt that permitting [a rival union lacking equivalent status] into the [public areas] in question (whether or not into the actual work areas) would constitute unlawful assistance." NTEU v. FLRA, 986 F.2d at 540, (quoting AFGE I, 793 F.2d at 337).
On the other hand, the D.C. Circuit has also indicated its agreement with the rationale articulated by the FLRC in Grissom: "[T]he provision [section 7116(a)(3)] is aimed primarily at preventing agency domination of unions and preserving the bargaining representative's independence . . . . [citation to Grissom omitted]. Like its analogue in private sector labor law, 8(a)(2) of the National Labor Relations Act, 29 U.S.C. 158(a)(2) (1982), it is directed at the problem of company unions.'" AFGE II, 840 F.2d at 955-56.
Thus, like the Authority, the Court of Appeals for the D.C. Circuit has cited the Natick decision; however, the Court has always presumed, without specifically addressing and deciding, that an agency would violate section 7116(a)(3) of the Statute if it allowed a rival union, lacking equivalent status, access to its customary and routine services and facilities.
3. Section 7116(a)(3) Prohibits Sponsoring, Controlling, or Assisting a Labor Organization
The wording and structure of section 7116(a)(3), the Executive Order provision from which it evolved, as well as administrative and judicial precedent discussing both provisions, lead us to conclude, in agreement with the FLRC and the United States Court of Appeals for the District of Columbia Circuit, that the purpose of section 7116(a)(3) is contained in the first clause of the section -- agencies may not sponsor, control, or assist labor organizations. This fundamental objective guides our interpretation of this section.
The second clause of section 7116(a)(3) helps to define the meaning of sponsorship, control, and assistance and to prevent overbroad and impractical interpretations of the first phrase of the section. For example, standing alone, the first clause of the section could be construed to prevent an agency from providing even a de minimis routine service or facility to a labor organization. However, the potential for such a sweeping and unwieldy interpretation is avoided by the second clause of the section, which permits agencies to furnish routine services and facilities to labor organizations, even if the provision of such services and facilities would otherwise constitute sponsorship, control, and assistance, so long as the services and facilities in question are furnished on an impartial basis to other labor organizations having equivalent status. The second clause of section 7116(a)(3) thus limits the reach of the first and specifically excepts certain activities from the potentially broad prohibitions of the first, or, as the FLRC concluded, it "is a proviso to the otherwise absolute ban." Grissom, 6 FLRC at 411 n.8. Read as a whole, section 7116(a)(3) prohibits sponsorship, control, and assistance, but permits the furnishing of customary and routine services and facilities on an impartial basis to labor organizations having equivalent status.
4. Revised Framework for Analyzing Claims Alleging Violations of Section 7116(a)(3)
Having concluded that section 7116(a)(3) prohibits sponsorship, control, and assistance, while allowing the furnishing of customary and routine services on an impartial basis, we herein establish a revised framework for analyzing cases arising under this section. In adopting this framework, we first establish the central question that must be analyzed in section 7116(a)(3) cases and then set out and discuss the sources we have considered in forming our view of sponsorship, control, and assistance under the Statute. Finally, we summarize the framework we adopt and briefly describe an agency's obligations under section 7116(a)(3).
We recognize that the revised framework for evaluating cases arising under section 7116(a)(3) which we adopt today is, in some respects, a departure from the manner in which the broad Natick language was interpreted in Social Security Administration. We also appreciate that in other cases, previously cited in this decision, the broad Natick language has been applied by the Authority and cited by the United States Court of Appeals for the District of Columbia Circuit. However, the inflexible Natick approach, as applied and interpreted in Social Security Administration, is practically unworkable in certain circumstances and fails to contemplate the potential for constitutional challenges such as have arisen in the case before us. As a result we are obliged to revisit and revise how section 7116(a)(3) cases should be analyzed. Having done so, we believe, for the reasons explained below, that unlike the broad and rigid Natick approach, this revised interpretation is squarely in accord with the terminology, purpose, and meaning of section 7116(a)(3). We also find that this approach will best effectuate the purposes of the Statute.
a. Central Question to be Analyzed
The proper central question in section 7116(a)(3) cases is whether the agency action -- in this case the denial of access to agency premises -- sponsored, controlled, or assisted a labor organization. The analytical approach employed in Social Security Administration, which asks only whether a labor organization has equivalent status, is flawed because it ignores the primary purpose of section 7116(a)(3) by failing to analyze whether the agency has sponsored, controlled, or assisted a labor organization. The Social Security Administration approach applies a per se rule that granting access to a rival lacking equivalent status always equates to sponsorship, control, or assistance. Such an approach inverts the section by allowing the exception to the broad prohibition to define an agency's obligations under the Statute. (12)
Revising and stating the central question in this way means that we will no longer construe the second clause of section 7116(a)(3) as absolutely defining the limits of what an agency is permitted to do vis-a-vis its services and facilities. As a result, an agency will not be automatically obliged by the Authority's interpretation of section 7116(a)(3) to require as a condition to furnishing routine services and facilities, including access to agency premises, that a rival labor organization have obtained equivalent status to an incumbent, (13)without regard to whether the provision of such services and facilities, in and of itself, sponsors, controls, or assists a labor organization.
b. Sources that Define and Explain Sponsorship, Control and Assistance
Our view of what constitutes sponsorship, control, and assistance is informed by several sources and considerations. First, we look to and examine an analogous provision of the National Labor Relations Act (NLRA), as well as the applicable precedent interpreting this provision. However, in analyzing private sector law, we note several important distinctions concerning the context in which private and federal sector cases have arisen. We also consider precedent developed under the Statute and the Executive Order as well as the language of the proviso. Lastly, we take into account the interrelationship between section 7116(a)(3) and section 7116(a)(1).
(1) Section 8(a)(2) of the NLRA
As noted earlier, the primary purpose of both section 7116(a)(3) of the Statute and section 8(a)(2) of the NLRA is to prevent "company unionism." AFGE II, 840 F.2d at 955-56; see also, e.g., Remarks of Senator Wagner, reprinted in 1 Legislative History of the National Labor Relations Act, 1935, at 15-16 (1949). However, in attacking the same evil, the statutes use somewhat different language. Section 7116(a)(3) proscribes sponsorship, control or assistance, while section 8(a)(2) makes it illegal:
to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. . . .
Despite this difference in phraseology, the prohibitions in section 8(a)(2) are comparable with the proscriptions in section 7116(a)(3) of the Statute. Specifically, both statutes forbid an employer's unduly influencing a labor organization: section 8(a)(2) by use of the word "domination," and section 7116(a)(3) through the word "control." Similarly, both statutes prohibit an employer from improperly supporting and fostering a labor organization: section 8(a)(2) through phrases that outlaw "interfer[ing] with the formation or administration . . . [and] contribut[ing] financial or other support" and section 7116(a)(3) by use of the terms "sponsor" and "assist."
Finding that the purposes and prohibitions of the two sections are analogous, we will consider judicial and administrative precedent interpreting section 8(a)(2) of the NLRA in construing section 7116(a)(3)'s prohibition against sponsorship, control, or assistance. In this regard, we note that the Supreme Court has determined that, in evaluating allegations of improper employer activity under section 8(a)(2) of the NLRA, the National Labor Relations Board (NLRB) is to examine the totality of circumstances (International Association of Machinists, etc. v. NLRB, 311 U.S. 72, 80 (1940)) in determining whether the employer's action has interfered with employee freedom of choice (NLRB v. Link-Belt Co., 311 U.S. 584, 588 (1941)). Bearing in mind that the purpose of both section 8(a)(2) and section 7116(a)(3) is to prevent "company unions" and to preserve the bargaining unit representative's independence, we find the Supreme Court's guidance in section 8(a)(2) cases appropriate for analyzing allegations of sponsorship, control, and assistance under section 7116(a)(3). Accordingly, we will be examining whether, in the totality of circumstances, the employer interfered with employee freedom of choice by failing to maintain a proper arms-length relationship with the labor organization involved. Like the Board, we will avoid applying a per se approach to the use of employer property and will decide each case on the totality of its facts. Coamo Knitting Mills, Inc., 150 NLRB 579, 582 (1964).
(2) Federal Sector Considerations
Although considering private sector precedent to illuminate our interpretation of sponsorship, control, and assistance, we bear in mind an important distinction between the cases decided by the NLRB and those that have come before the Authority and its predecessor in the federal sector. The private sector standard was developed and has been most often applied in the context of an organizational campaign where there is no exclusive representative. Unlike the private sector, the federal experience in this and previous cases (Natick, Grissom, HHS, Gallup Indian Medical Center, Barksdale Air Force Base, etc.) has almost always involved an attempt by a rival labor organization to unseat an incumbent that has already organized the workforce in question. There are, on the one hand, inherent and concrete benefits to incumbency, and, on the other, disadvantages to being a rival. These distinctions are not indicative of whether the agency has maintained the proper arms-length relationship with its employees' exclusive representative. For example, the incumbent, as a result of its status, already has access to the agency's premises and an established relationship with the agency. Moreover, the incumbent has an opportunity through collective bargaining to obtain other advantages (e.g., union offices, bulletin board space, use of agency mail systems, etc.) that a rival, regardless of equivalent status, will not have attained. (14) In our view, section 7116(a)(3)'s prohibition on sponsorship, control, and assistance is not designed to provide a rival labor organization, lacking equivalent status, the benefits that an incumbent has obtained as a result of both its status and its collective bargaining as the exclusive representative. Accordingly, our consideration of private sector precedent should not be read to suggest that an agency is obliged to grant access to a rival labor organization lacking equivalent status lest the agency be sanctioned for failing to maintain the proper arms-length relationship with its incumbent. (15)
On the contrary, should an agency, whose employees are already represented, allow access to a rival labor organization lacking equivalent status, we would closely examine whether the agency had maintained the appropriate arms-length relationship with the rival. However, having in this decision revised the broad Natick rule to accommodate a constitutional problem not envisioned by the ASLMR, we do not believe it prudent to broadly pronounce in this case that any agency grant of access to a rival lacking equivalent status will necessarily equate to sponsorship, control, or assistance. Instead, in establishing a revised framework, we set out specific instances of when grants of access to rivals lacking equivalent status will be permitted and, for other cases, offer guidance as to how we will evaluate sponsorship, control, or assistance. See sections IV.B.4.a., b.(1),(3), and (4). Rather than prejudge cases perhaps premised upon factual scenarios we have not here envisioned, we leave for another day the determination of whether an agency, whose employees are already represented and who grants access to a rival labor organization lacking equivalent status, has sponsored, controlled, or assisted that labor organization and thus violated section 7116(a)(3).
(3) Precedent and the Proviso
Consistent with the precedent of the FLRC, the Authority, and the Court of Appeals for the D.C. Circuit, it is evident that an agency does not sponsor, control, or assist a labor organization that gains access to services or facilities over which an agency does not exercise control. In other words, lacking control, an agency is not obliged to take affirmative steps to deny such access. See Grissom, HHS, and AFGE II. In addition, consistent with Natick and as further developed below, an agency does not sponsor, control, or assist in violation of the section 7116(a)(3) where it grants access to a rival lacking equivalent status that has no other means of communicating with the agency's employees outside of the agency's premises. 3 A/SLMR at 196. The Authority has adopted this rule as well. See Social Security Administration; Barksdale Air Force Base. (16)16/
The proviso to section 7116(a)(3) further helps to define the meaning of sponsorship, control, or assistance. For example, if an agency were to grant a labor organization, other than the exclusive representative, access to services and facilities that were not routinely granted to others, this might well be indicative of sponsorship, control, or assistance. (17)
(4) Interrelationship Between Section 7116(a)(3) and Section 7116(a)(1)
Finally, in defining sponsorship, control, or assistance, it is appropriate in our view to reconsider the interrelationship between section 7116(a)(3) and section 7116(a)(1). The Authority has noted the "tension between section 7116(a)(3) and section 7116(a)(1)." Social Security Administration, 45 FLRA at 324. However, in holding that SSA was obliged to deny NTEU access to its premises because to do otherwise would violate section 7116(a)(3), the Authority previously concluded that section 7116(a)(3), in effect, trumped section 7116(a)(1). See Social Security Administration, 45 FLRA at 323. As developed in section C., infra, pursuant to section 7116(a)(1), an agency is required, vis-a-vis non-employee solicitation on its premises, to consider the availability of other means of communication and to maintain a non-discrimination policy.
The Authority's previous construction of the interrelation between these two provisions in the Statute failed to address constitutional problems such as those that confronted the Respondent in this case. In addition, it ignored that the underpinning of the Natick exception was premised upon the employees' right to form, join, or assist a labor organization, which is effectuated through section 7116(a)(1). See note 23, infra. Accordingly, we reassess the interplay between these sections of the Statute in light of our view of the purpose of section 7116(a)(3) as developed above and section 7116(a)(1) as developed infra. We conclude that section 7116(a)(3)'s ban on assistance is not violated by action required to comply with section 7116(a)(1)'s prohibition on discrimination and right to communication. Specifically, an agency that grants access to its services or facilities to a labor organization lacking equivalent status, because to do otherwise would require it to violate section 7116(a)(1), does not, ipso facto, violate section 7116(a)(3) of the Statute. Conversely, where denial of access violates section 7116(a)(1), the agency's violation will not be excused on the ground that granting access would have violated section 7116(a)(3).
c. Framework Summary
If an agency is charged with violating section 7116(a)(3) by granting or denying access to services and facilities over which the agency exercises control, we will henceforth analyze whether the agency action has sponsored, controlled, or assisted a labor organization. In making this determination, we will analyze whether the agency has, in the totality of circumstances, interfered with employee freedom of choice by failing to maintain the appropriate arms-length relationship with the labor organization involved. We will be guided in this determination by considering the wording of section 7116(a)(3) as well as our own case law and precedent interpreting section 8(a)(2) of the NLRA.
This revised analysis does not alter the principle that where an agency's employees are already represented by an exclusive representative, an agency will nevertheless be obliged to grant access to a labor organization that obtains equivalent status. DOD, Dependents School. Nor does it ignore the special status of an exclusive representative. However, even if a rival labor organization has not obtained equivalent status, an agency will be obliged to grant access when to do otherwise would violate section 7116(a)(1) of the Statute.
5. Application of the Analytical Framework to the Denial of Access in this Case
The Authority previously determined that SSA would have violated section 7116(a)(3) had it granted NTEU's request for permission to distribute literature on Woodlawn's public areas. Social Security Administration, 45 FLRA at 320. As a result, the Authority concluded that SSA had not, in denying NTEU a permit, unlawfully assisted AFGE in violation of section 7116(a)(3). Id. at 321. We have concluded that an agency --in this case SSA -- is not obliged, pursuant to section 7116(a)(3), to deny access to a labor organization lacking equivalent status -- here NTEU -- unless the grant of such access would equate to sponsorship, control, or assistance. We now evaluate whether SSA, in denying NTEU access, unlawfully assisted AFGE as alleged in the complaint prosecuted by the General Counsel.
In the circumstances of this case, we conclude that the denial of access to NTEU did not amount to unlawful assistance to AFGE. First, we find that SSA exercised control over the premises to which access was denied. We recognize that if NTEU, a rival labor organization, had been granted a permit to distribute literature on agency premises, AFGE's status as an incumbent may have been subjected to potential challenges by NTEU. However, such a denial would inure to the benefit of an incumbent whenever there is an exclusive representative and, as we noted in the preceding section, there are certain advantages that go with incumbency. We conclude that the denial of access to a rival, in and of itself, does not equate to sponsorship, control, or assistance to the incumbent.
Moreover, on examination of the record in this case, in light of the totality of circumstances, there is no evidence that through this denial of access SSA interfered with its employees' freedom of choice or failed to maintain the proper arms-length relationship with AFGE. Although it is conceivable that the denial of access could result in an incumbent becoming a "company union," as one court noted in a related context, "[i]t is not the potential for but the reality of domination that these statutes are intended to prevent." Barthelemy v. Air Line Pilots Association, 897 F.2d 999, 1016 (9th Cir. 1990). In scrutinizing the stipulations of the parties and examining the record, we find no evidence that SSA's action unlawfully assisted AFGE. For example, there is no evidence that AFGE is either controlled by SSA or is anything other than an independent representative of the bargaining unit. Nor is there evidence that the denial was viewed by the employees as indicative of the agency favoring AFGE.
Having concluded that, in denying NTEU's permit request, SSA did not sponsor, control, or assist AFGE, we dismiss the complaint as it relates to section 7116(a)(3).
6. SSA's Claim That It Was Obliged to Deny NTEU a Permit Because Granting the Request Would Have Violated Section 7116(a)(3)
As noted earlier, the Authority previously accepted SSA's claim that had it granted the permit sought, the agency would have violated section 7116(a)(3) by improperly assisting NTEU. Social Security Administration, 45 FLRA at 320. In view of our conclusion in the preceding section, an analysis of this affirmative defense is unnecessary for resolution of the section 7116(a)(3) charge. However, we note our determination in section 4, supra, that an agency's denial of access to non-employee organizers of labor organizations, lacking equivalent status, will be analyzed in light of the agency's obligations under section 7116(a)(1).
7. The Constitutional Dilemma and the Facilities Question
The adoption of this revised framework is responsive to the D.C. Circuit's concern that the Authority avoid an interpretation of the Statute that raises constitutional implications for access cases arising under section 7116(a)(3). NTEU v. FLRA, 986 F.2d at 540. "[M]indful of the first amendment implications," our determination in this case resolves the predicament faced by SSA. Id. Under the Authority's previous interpretation of section 7116(a)(3), SSA's compliance with its obligations under the Statute prompted a successful district court constitutional challenge against the agency by NTEU. King II, 798 F. Supp. 780. Under the revised interpretation and framework, an agency will no longer be automatically obliged to deny such access. (18) Thus, the Authority's interpretation and application of section 7116(a)(3) will not require an agency to deny access and prompt constitutional access challenges, like the one asserted in this case, that are premised upon an agency's compliance with its obligations under the Statute. As such, and as directed by the Court, our decision enables agencies to avoid a First Amendment challenge in carrying out their obligations under the Statute. Id.
The analytical framework adopted and applied herein avoids an interpretation of the Statute that leads to uncertain constitutional implications. As a result, it is unnecessary to address the issue, raised by the court in NTEU v. FLRA, of whether the sidewalks were the "facilities" of SSA as this question relates to whether SSA was acting as GSA's building manager rather than as an employer. Id. (19)
C. Section 7116(a)(1) -- Employee Rights When Non-employee Organizers Seek Access to Agency Premises
The General Counsel has alleged that, in the circumstances of this case, the denial of access to NTEU violated section 7116(a)(1). In support of this assertion, the General Counsel claims that employees have a right under section 7116(a)(1) to receive information about other labor organizations from non-employee organizers and that SSA has a discriminatory policy concerning access to its premises.
The question of whether section 7116(a)(1) extends derivative section 7102 rights to non-employee organizers has not been previously decided by the Authority.(20) In interpreting section 7116(a)(1), and thereby determining an agency's obligations under the Statute vis-a-vis requests for access from non-employee organizers, we are guided by germane decisions of the Supreme Court, discussed below, interpreting analogous provisions of the NLRA.
1. Section 8(a)(1) of the NLRA
The wording and purposes of section 8(a)(1) of the NLRA and section 7116(a)(1) of the Statute are virtually identical. Both prohibit interfering with, restraining, or coercing employees in the exercise of their rights under the respective statutes. (21) In line with our earlier determination concerning section 8(a)(2) and section 7116(a)(3) (Section IV.B.4.b.(1), supra), we find that the similarities between these sections justify our consideration of judicial and administrative precedent interpreting section 8(a)(1) of the NLRA in construing section 7116(a)(1) of the Statute.
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) (Babcock), the Supreme Court articulated an employer's obligations under section 8(a)(1) of the NLRA when non-employee union organizers seek access to employees on company property. The Court determined that "an employer may validly post his property against non-employee distribution of union literature" if two conditions are present. Id. at 112. First, the union must be able "through other available channels of communication . . . to reach the employees with its message" and second, "the employer's . . . order does not discriminate against the union by allowing other distribution." Id. However, if either of these circumstances is not met, "non-employee union organizers may have a limited right of access to an employer's premises for the purpose of engaging in organization solicitation." Sears, Roebuck, and Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 204 (1978) (Sears, Roebuck).
In Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992) (Lechmere), the Court reaffirmed its earlier decision, noting that even though "the NLRA confers rights only on employees, not on unions or their non-employee organizers," Babcock had recognized that employees have the right to "learn the advantages of self-organization from others." Id., quoting Babcock, 351 U.S. at 113. The Lechmere decision further noted that the non-employee union organizers bear the burden of showing that the employer's access rules discriminate against union solicitation or that no other reasonable means of communication exist. Id. at 532, 535 (quoting Sears, Roebuck, 436 U.S. at 205).
2. Framework for Analyzing Alleged Violations of Section 7116(a)(1) Where Non-employee Organizers Seek Access
In accord with Supreme Court precedent interpreting section 8(a)(1), we conclude that under certain circumstances employees have a right, on agency property, to "learn the advantages" of labor organizations from non-employee organizers, pursuant to section 7116(a)(1) and section 7102. We recognize that Babcock and its progeny have most often been applied in the context of an organizational campaign where, unlike the case before us, the employees being solicited are not already represented by a labor organization. However, as noted by the United States Court of Appeals for the Seventh Circuit, even where the Babcock test does not precisely fit a set of facts, the principles stated in that case "must be an important starting point for analysis of any solicitation activity by non-employees." Montgomery Ward & Co., Inc. v. NLRB, 692 F.2d 1115, 1124-25 (7th Cir. 1982), cert. denied, 461 U.S. 914 (1983).
We therefore adopt the Babcock analytical framework as our starting point in section 7116(a)(1) cases where non-employee labor organizers are denied access to agency premises. In performing this analysis, we will consider whether the agency has a non-discriminatory distribution policy and whether there are other reasonable means available to the labor organization for communicating its message to employees. If the General Counsel establishes either that an agency maintains a discriminatory policy, or, irrespective of the agency's access policy, that there are no other reasonable methods of communicating with the employees concerned, we will find that the agency has, in denying access to the non-employee organizers, violated section 7116(a)(1) of the Statute.
a. Non-Discriminatory Policy Concerning Solicitation
The fact that an employer has banned non-employee union solicitation, but allowed other outsiders access to its premises, does not automatically lead to the conclusion that the employer violated the non-discrimination provision set out in Babcock. To the contrary, the NLRB and the United States Courts of Appeals, in reviewing determinations of the Board, have clarified the application of the Babcock non-discrimination rule in several respects. Because we have noted the similarity between section 8(a)(1) of the NLRA and section 7116(a)(1) of the Statute and adopted the Babcock analytical framework, we briefly review relevant decisions of the NLRB and examine how the Babcock non-discrimination rule has been analyzed and fashioned on review in the courts.
The NLRB has long recognized "that an employer does not violate Sec. 8(a)(1) by permitting a small number of isolated beneficent acts' as narrow exceptions to a no-solicitation rule." Hammary Mfg. Corp., 265 NLRB 57 n.4 (1982) (Hammary) (citing Serv-Air, Inc., 175 NLRB 801 (1969)). In this regard, "rather than finding an exception for charities to be a per se violation of the Act, the Board has evaluated the quantum of . . . incidents' involved to determine whether unlawful discrimination has occurred." Id. Additionally, the Board permits an employer to deny non-employee organizers access to its premises while permitting other solicitations that are integrally related to the employer's business functions and purposes. Rochester General Hospital, 234 NLRB 253 (1978). However, these two exceptions aside, the Board has interpreted and applied the Babcock non-discrimination rule to find a violation of section 8(a)(1) where an employer denies activity by non-employee organizers that it grants to others. See, e.g., Be-Lo Stores, 318 NLRB 1 (1995) (finding violation where employer enforced no-solicitation rule to deny picketing, but permitted various other religious, political, and charitable organizations to distribute literature and solicit on its premises).
The NLRB's interpretation and application of Babcock's non-discrimination rule has been reviewed by several United States Courts of Appeals. In some instances, the Board's rule has been cited with approval on review and and its application affirmed. See Lucile Salter Packard Children's Hospital at Standford v. NLRB, 97 F.3d 583, 587-89 (D.C. Cir. 1996) (applying the Board's exceptions to the Babcock non-discrimination rule and agreeing with the Board's finding that 8(a)(1) was violated where an employer's policy restricting solicitation had been inconsistently exercised to prevent non-employee union organizers access, while permitting similar access to various commercial solicitors). On the other hand, in related factual contexts, Board orders have not been enforced when the courts have more narrowly restricted the activities and entities against which discrimination can be measured. See Guardian Industries Corp. v. NLRB, 49 F.3d 317, 321-22 (7th Cir. 1995), (rejecting NLRB's finding of an 8(a)(1) violation premised upon an employer's refusal to permit the posting of union notices on the firm's bulletin board, while allowing swap-and-shop notices); NLRB v. Southern Maryland Hospital Center, 916 F.2d 932, 937-38 (4th Cir. 1990), (refusing to enforce the Board's finding that hospital discriminatorily enforced its no-solicitation policy by allowing numerous friends and relatives of hospital employees into the cafeteria while keeping union organizers out). (22)
The principles articulated in the above decisions suggest that "[b]y inviting the public to use an area of its property, the employer does not surrender its right to control the uses to which that area is put." Baptist Medical System v. NLRB, 876 F.2d 661, 664 (8th Cir. 1989). Indeed, the Supreme Court has, in a related, constitutional context, recognized the difference between labor organizations and other entities vis-a-vis access to an employer's facilities. Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983) (Perry). In Perry, the Court pointed out that even if a school district had created a limited public forum by allowing access to the Cub Scouts, Girl Scouts, YMCA, and other organizations that engage in activities of interest and educational relevance to students, the school district would not necessarily, as a consequence, have opened its premises to a labor organization which is concerned with terms and conditions of employment. Id. at 48.
b. Availability of Other Means of Communication
The ability of a labor organization to obtain access to employees through other methods of communication has previously been analyzed by both the ASLMR and the Authority in evaluating cases arising under section 19(a)(3) of the Order and section 7116(a)(3) of the Statute, respectively. See Natick, 3 A/SLMR at 196; Social Security Administration, 45 FLRA at 320; Barksdale Air Force Base, 45 FLRA at 665. In view of our adoption of the Babcock analytical framework for analyzing cases arising under the Statute, we will apply that precedent, and, where appropriate, private sector precedent, in analyzing this issue in cases arising under section 7116(a)(1). (23)
3. Application of the Analytical Framework to this Case
The Authority previously determined that section 7116(a)(3) "required SSA to treat NTEU differently from other organizations." Social Security Administration, 45 FLRA at 323. As a result, in denying NTEU the permit request, the Authority concluded that SSA did not violate section 7116(a)(1). Having revised our view of an agency's obligations under section 7116(a)(3), we now reconsider our earlier determination concerning whether SSA violated section 7116(a)(1).
a. SSA's Solicitation Policy
There is no doubt that SSA has differentiated among the organizations that it has allowed to solicit on its Woodlawn premises. The record reflects that although NTEU, a labor organization, was denied access to the Agency's premises, beneficent organizations such as the Disabled American Veterans, Mothers Against Drunk Driving, the Little Sisters of the Poor, and the American Legion have been granted occasional access to the Agency's premises. However, the record is silent as to whether any other organizations have sought, been granted, or been denied access to SSA's premises.
Applying the principles set out in the NLRB's Hammary decision, we are unable to conclude, based upon the stipulated record in this case, that SSA has violated the Babcock nondiscrimination rule. The stipulations reflect that between November 1989 and April 1991, SSA granted permits to four charitable and civic organizations to distribute various information and materials. However, it is not clear, from stipulations before us, whether other entities have been denied permits or, alternatively, whether every organization that sought a permit from SSA has been granted access. (24) Moreover, the parties' arguments do not address whether the number of permits granted during the time period have been isolated and limited to a small number of beneficent organizations, as set out in the Board's Hammary exception. As a result, we do not find that SSA's denial of access to NTEU, which occurred during the same time period that it granted occasional access to charitable organizations, violated the Babcock non-discrimination rule. (25)
In reaching this conclusion, we have considered that NTEU is being treated differently than AFGE -- the incumbent and exclusive representative of the employees of SSA. However, for the purposes of applying the Babcock discrimination principle in determining whether an agency has violated section 7116(a)(1) of the Statute, we do not believe that the access afforded an incumbent labor organization, which, as noted earlier has access to the employer's premises because of its status as the exclusive representative, is relevant or properly compared to the access afforded to other labor organizations.
b. Availability of Other Means of Communicating with the Employees
Given our finding, in the preceding section, that SSA's policy concerning solicitation did not violate section 7116(a)(1), we turn to the issue of whether there were other means of communicating with the employees that were available to NTEU. In this regard, we note that the Authority previously determined, in the context of evaluating the alleged section 7116(a)(3) violation, that NTEU had failed to demonstrate "that SSA's Woodlawn employees are inaccessible outside the Woodlawn premises." Social Security Administration, 45 FLRA at 320. We have been presented with no evidence that would lead us to alter this conclusion on remand, nor are we aware of any reason why we should reach a different conclusion because this issue is now being considered under section 7116(a)(1).
Accordingly, we conclude that SSA did not violate section 7116(a)(1) of the Statute by discriminating against NTEU while permitting other solicitation on its premises.
The complaint in this case is dismissed.
Member Wasserman, concurring:
Although I agree with the ultimate disposition of the allegations in this case, I differ from my colleagues with regard to the analytic basis for concluding that the Respondent did not violate the Statute by denying access to non-employee representatives of NTEU.
I first address the section 7116(a)(3) aspect of this case. For nearly 25 years, an agency's obligation to provide access to non-employees acting on behalf of a labor organization has been determined by the statement of law set forth in Department of the Army, U.S. Army Natick Laboratories, Natick, Mass., 3 A/SLMR 194 (1973) (Natick): an agency may not furnish the use of its services and facilities to a rival labor organization that lacks equivalent status. Acceptance of this principle appears to have been universal. See, e.g., National Treasury Employees Union v. FLRA, 986 F.2d 537, 540 (D.C. Cir. 1993) ("This 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.'"); American Federation of Government Employees, AFL-CIO v. FLRA, 840 F.2d 947, 950 (D.C. Cir. 1988) ("An extended line of precedents under 7116(a)(3) and its predecessor establish that an agency commits an unfair labor practice if it provides access to or use of its facilities to a union without equivalent status.'"); American Federation of Government Employees, AFL-CIO v. FLRA, 793 F.2d 333, 337 n.9 (referring to this doctrine as "settled caselaw"); U.S. Department of the Air Force, Barksdale Air Force Base, Bossier City, Louisiana and NFFE, Local 1953, 45 FLRA 659 (1992) (parties conceded the applicability of Natick). (1)Indeed, no party to this proceeding explicitly argues that we should overrule or modify Natick.
Were we writing on a clean slate, I might agree that the interpretation of section 7116(a)(3) reached by my colleagues today is an appropriate reading of the Statute. However, as shown by the cases cited above, there has in fact been a great deal written on the subject (although I agree with my colleagues that Natick has generally simply been adhered to and has not been adequately explained). I see no reason at this point to erase this slate. Rather, in my view, once the phrase "customary and routine services and facilities" is defined, the Natick doctrine offers the Federal labor-management community a degree of certainty and an ease of application. In contrast, the interpretation reached by the majority replaces a bright-line rule thereby creating uncertainty that will, I fear, encourage parties to challenge the limits of the new doctrine. Natick also recognizes, as does the only legislative history concerning this provision (see majority opinion, slip op. at 9), that the intent of section 7116(a)(3) was to ensure agency neutrality during organizing campaigns. In my view, as discussed more fully below, section 7116(a)(3) has limited, if any, applicability to an agency's conduct with regard to the exclusive representative of its employees outside the election context. For this reason, I find the statutory provision regulating the far more volatile labor relations environment of the private sector, and precedent thereunder, to be of limited value when determining how we should interpret section 7116(a)(3).
The conclusion that I reach today -- that equivalent status should continue to be the fulcrum on which the Authority decides whether an agency is obligated to provide access under section 7116(a)(3) -- is grounded in my view that the Statute gives a special status to an exclusive representative and is protective of that status. I find evidence of this status in the language of section 7101 of the Statute, particularly in its concurrent focus on both the value of collective bargaining and the mandate that the Statute be interpreted consistent with the requirement for an effective and efficient Government. In this light, I read section 7116(a)(3), and its invocation of "equivalent status," as governing an agency's actions when there is no exclusive representative or when the incumbent union has been properly challenged under the procedures set out in section 7111. In those circumstances, an agency may neither sponsor, control or assist a favorite union nor fail to furnish equivalent services and facilities to all labor organizations that seek to represent its employees. Thus, I agree with my colleagues that section 7116(a)(3) does not insulate the exclusive representative from all challenges by rival unions. However, incumbency has its rewards. For example, a union may obtain a right of access to agency property through negotiations or past practice. See, e.g., Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 1129, 1136 (1990); Department of Labor, Office of Workers' Compensation Programs, Branch of Special Claims, 11 FLRA 77 (1983). In view of the stability and repose intended by the Statute, I believe that an agency should not be concerned that denial of access or other services to a rival union without equivalent status will be interpreted as providing assistance to an incumbent exclusive representative.
In this case, I conclude that the Respondent did not violate section 7116(a)(3) by denying NTEU access to the grounds of the Woodlawn complex because I would not find that such access constitutes the furnishing of either services or facilities. In this regard, I find it significant that the area in question is a large exterior space, to which the public generally has unrestricted access. Its perimeter is unfenced and unguarded; busses enter on regularly scheduled routes; and non-employees routinely stroll or congregate on its sidewalks, which are considered "public areas" for purposes of applicable Federal regulations. Social Security Administration and National Treasury Employees Union, 45 FLRA 303, 305 (1992). Aside from providing permits for the distribution of literature, there is no record evidence that the Respondent in fact furnishes any services or facilities in the normal sense of those terms to members of the public who come onto its grounds. Moreover, given the nominal nature of the permit -- which, prior to this dispute, apparently had never been denied -- I would not find that the grant of a permit is equivalent to the furnishing of services or facilities within the meaning of section 7116(a)(3). Thus, as I would not find that access to the exterior grounds of the Woodlawn complex involves the furnishing of "customary and routine services and facilities" and I see no other basis on which to conclude that the Respondent sponsored, controlled or otherwise assisted AFGE, I conclude that the Respondent did not violate section 7116(a)(3), as alleged, even though NTEU did not have equivalent status. Similarly, it would not have violated that provision had it granted the access. (2)
With regard to the Section 7116(a)(1) allegation, I rely again on the public nature of the Woodlawn grounds where, according to the record before us, access was routinely granted to all, including others who wished to distribute materials. Consistent with the views expressed above, I would find that where an agency has opened its premises to such indiscriminate use, it cannot bar a union from using those premises for the same purposes. Cf. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983) (where a governmental entity has not opened its facilities to indiscriminate use by the general public, it may place restrictions on its use for expressive activity). Again, I do not find private sector precedent helpful in determining the scope of permitted access. Instead, due to the fact that employers covered by the Statute are all Governmental entities, I believe that, in addition to examining whether an agency's actions have interfered with, restrained, or coerced any employee in the exercise of a right guaranteed by the Statute, we must be guided by First Amendment principles in such cases. See, for example, Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799-806 (1984). Accordingly, NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) and its progeny, including Hammary Mfg. Corp., 265 NLRB 57 (1982), are instructive, but not necessarily dispositive in determining the circumstances in which an agency may lawfully regulate speech or other expressive activity.
In light of the foregoing and in the absence of other factors, I would find that the Respondent violated section 7116(a)(1) by denying access to NTEU. Thus, based on a record that suggests that the Respondent opened its exterior grounds to everyone and to all types of communication, the Respondent interfered with its employees' rights under section 7116(a)(1) by foreclosing their ability also to hear NTEU's message at that location. However, I agree with my colleagues that it would not be appropriate to find a violation in the circumstances of this case. See note 25, above. Thus, even though I would not change the previous interpretation of section 7116(a)(3), the Respondent could not necessarily have foreseen my view of what constitutes the furnishing of services and facilities or my position regarding the dictates of section 7116(a)(1). Accordingly, I believe that it would be inequitable to find that the Respondent violated the Statute.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. The separate concurring opinion of Member Wasserman is set forth at the end of this decision.
2. Member Armendariz, who previously participated in Social Security Administration, has reconsidered the analysis and conclusion reached in the Authority's earlier decision in light of the court's remand in NTEU v. FLRA and the constitutional concerns raised therein, the arguments of the parties, and the precedent cited in this decision. In light of these considerations and on further examination, he supports the analytical framework and decision in this case.
3. A rival union obtains "equivalent status" with an incumbent union when a petition for election is properly filed with the Authority and the appropriate Authority Regional Director determines that there has been a prima facie showing of interest. See U.S. Department of Defense, Dependents School, Panama Region and Education Association of Panama and Panama Canal Federation of Teachers, Local 29, 44 FLRA 419, 425-26 (1992) (DOD, Dependents School). It is undisputed that NTEU had not achieved equivalent status at the time of the permit request.
4. After the court's remand, the Authority, in turn, remanded the case to the Washington Regional Office for further proceedings. 47 FLRA 1376 (1993). On remand, the parties entered into a stipulation of facts and the General Counsel, NTEU, and AFGE filed briefs. Subsequently, the Authority published a Notice of Oral Argument and provided interested parties the opportunity to submit amicus curiae briefs. 61 Fed. Reg. 25871 (1996). All parties submitted briefs and participated in the oral argument. One labor organization, the Laborers' International Union of North America, submitted a brief as amicus curiae.
5. Section 19(a)(3) of the Order evolved from section 3.2(a)(3) of the Code of Fair Labor Practices, 3 C.F.R. 1959-63.
6. Section 23 of the Order required agencies to take appropriate steps to implement the Order, including developing policies concerning the use of agency facilities by labor organizations.
7. At the time of the issuance of the Order, the phrase "equivalent status" was not specifically defined.
8. Under section 4 of the Order, the FLRC was authorized, inter alia, to act on appeals from decisions of the ASLMR.
9. In one case, the Authority left undisturbed the unchallenged finding of an ALJ that an agency committed a ULP when it permitted a rival union, lacking equivalent status, access to a "public use area" near some vending machines outside the employee cafeteria. Gallup Indian Medical Center, Gallup, New Mexico and National Federation of Federal Employees, Local 1749 and Laborer's International Union of North America, Navajo Area Health Care Employees, Local Union 1376, 44 FLRA 217 (1992) (Gallup Indian Medical Center).
10. On the other hand, in the case now before us, where SSA, the employing agency, rather than GSA had control of the permit process, the Authority ruled that the agency properly denied access to the rival union lacking equivalent status. Social Sec. Admin., 45 FLRA at 318.
11. The issue in AFGE I was whether the agency was obliged to prevent a rival union from using GSA-controlled areas contiguous to the agency's premises. 793 F.2d at 334. In order to resolve this issue, the Court remanded to the Authority the question of whether the agency or GSA controlled the use of the public areas. Id. at 338. On remand, the Authority determined that GSA had "exclusive jurisdiction . . . to grant permits for the use of [the] public space" and that the agency did not have control over the public areas in question. HHS, 24 FLRA at 676. The Authority further found that it had not been established that the Health Care Financing Administration (HCFA) had influenced GSA's control over the public spaces in question and that in the absence of control or influence, HCFA had no affirmative duty to persuade GSA to deny NTEU access to the public space. Id. The D.C. Circuit affirmed the Authority, noting that the FPMRs "did not give HCFA authority to exclude the rival union's representatives from the adjacent public areas" and that "HCFA did not in fact exercise control over the areas." American Federation of Government Employees v. FLRA, 840 F.2d 947, 949 (D.C. Cir. 1988) (AFGE II).
12. Thus, we disagree with our concurring colleagues's conclusion that equivalent status should "be the fulcrum" on which access determinations are made because, in his view, a purpose of section 7116(a)(3) is to protect the status of an incumbent. In our view, section 7116(a)(3) determinations hinge on sponsorship, control, or assistance -- not equivalent status. Although the equivalent status, or lack thereof is clearly a factor to be considered in analyzing whether the grant or denial of access sponsors, controls, or assists, see, e.g., note 13 and section IV.B.4.b.(2), infra, we disagree that this should, in every instance in and of itself, be determinative of whether the Statute has been violated. In accord with the D.C. Circuit, we do not believe that section "7116(a)(3) is intended 'to insulate the exclusive representative from challenges by rival unions.'" AFGE II, 840 F.2d at 955.
13. On the other hand, the adoption of the revised framework described herein should not be construed as altering an agency's obligations to a rival union once the rival has obtained "equivalent status." See DOD, Dependents School, 44 FLRA 419.
14. Moreover, even upon obtaining equivalent status, a rival is not entitled to benefits that an incumbent labor organization has obtained through collective bargaining. U.S. Department of Defense, Department of the Army, U.S. Army Air Defense Center and Fort Bliss, Texas and NFFE, Local 2068 and NAGE, Local R14-89, 29 FLRA 362, 365-66 (1987).
15. Thus we do not share our concurring colleague's view that our revised framework will cause agencies to be concerned that the denial of access to a rival lacking equivalent status will lead to findings that they have violated the Statute. While recognizing that a fact-based analysis inevitably will create some degree of uncertainty not present under the Natick per se approach, we believe that the framework we adopt today will enable agencies to continue established relationships without such apprehensions.
16. For reasons expressed in section C, infra, the question of other means of communicating with employees will henceforth be examined in the context of determining allegations under section 7116(a)(1).
17. Similarly, the proviso's requirement that services and facilities be "furnished on an impartial basis" will also serve as a standard when an agency denies access to one labor organization that it has granted to another. In this regard, we would consider the NLRB's and judicial interpretations of section 8(a)(2) of the NLRA. See Davis Supermarkets, Inc., 306 NLRB 426, n.3 (1992), aff'd sub nom. Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1178 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1368 (1994); River Manor Health Facility, 224 NLRB 227, 236 (1976).
18. Moreover an agency will be required to grant access if denial would violate section 7116(a)(1). See section 4, supra.
19. We recognize that resolution of the facilities question, either in the manner suggested by the court, or by our concurring colleague, could arguably be a limited basis upon which to adjudicate this case. However, where the agency itself (rather than GSA) controls and owns the premises to which access is sought, the agency's status as a building manager would not be dispositive, and an agency would find itself in the same precarious position that faced SSA here. Similarly, reliance upon the fact that this case involves external sidewalks does not address what rule would apply in a case involving internal agency premises.
20. In this case, as noted earlier herein, rather than decide this issue the Authority assumed that any derivative right of access to agency premises possessed by non-employee organizers was overcome by the requirement of section 7116(a)(3) that such access be denied to a labor organization lacking equivalent status. Social Security Administration, 45 FLRA at 324.
21. The only dissimilarity between the two sections is that the rights referenced in section 8 are those in section 7 of the NLRA; in section 7116(a)(1), the rights protected are those set out in Chapter 71 of Title 5. However, for the purposes of this analysis, this is a distinction without a difference because the organizational rights found in section 7 -- "form, join, or assist labor organizations" -- are contained in section 7102 of the Statute as well.
22. The United States Court of Appeals for the Sixth Circuit recently reviewed and rejected an NLRB decision finding that an employer had violated section 8(a)(1) by prohibiting non- employees from distributing union handbills outside of a shopping center. Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6th Cir. 1996) (CREP). In reaching its conclusion, the Board had relied on the fact that the employer had previously allowed the Salvation Army, the Girl Scouts, the Boy Scouts, the Knights of Columbus, and others to solicit on the premises. Rejecting the NLRB's interpretation of Supreme Court precedent, the Court held "that the term 'discrimination' as used in Babcock means favoring one union over another, or allowing employer-related information while barring similar union-related information." CREP, 95 F.3d at 465.
23. This is consistent with the ASLMR's determination in Natick. As noted earlier herein, the ASLMR's determination that non-employee organizers were entitled to access if there was no other alternative means of communication was premised upon the rights assured employees in section 1(a) of the Order. 3 A/SLMR at 196. That section, like section 7102 of the Statute, recognized, inter alia, the right of employees "to form, join, or assist a labor organization, or to refrain from such activity. . . ." Section 1(a) of the Order and section 7102 of the Statute were and are enforceable through identical provisions in section 19(a)(1) of the Order and section 7116(a)(1) of the Statute declaring it an unfair labor practice "to interfere with, restrain, or coerce an employee in the exercise" of rights assured by the Order and the Statute.
24. In our view, the stipulations do not support the conclusions of our