Social Security Administration and National Treasury Employees Union and American Federation of Government Employees

[ v55 p964 ]

55 FLRA No. 158

SOCIAL SECURITY ADMINISTRATION
(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION
(Charging Party)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
(Intervenor)

3-CA-10859
(45 FLRA 303 (1992))
(47 FLRA 1376 (1993))
(48 FLRA 539 (1993))
(52 FLRA 1159 (1997))

_____

DECISION AND ORDER ON REMAND

September 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman, and Dale Cabaniss, Members.

I.     Statement of the Case

      This unfair labor practice case is before the Authority on a second remand from the United States Court of Appeals for the D.C. Circuit. National Treasury Employees Union v. FLRA, 139 F.3d 214 (D.C. Cir. 1998) (NTEU v. FLRA II). At issue here is the Authority's previous conclusion that the Social Security Administration (SSA) did not discriminate against the National Treasury Employees Union (NTEU) and thus violate the Federal Service Labor-Management Relations Statute (Statute) when it denied the NTEU permits to distribute leaflets on SSA's premises. Social Security Administration, 52 FLRA 1159, 1187-90 (1997) (SSA II) (Member Wasserman concurring in part and dissenting in part). Additionally, the Authority concluded that even if SSA had improperly discriminated against NTEU, the Authority would not find a violation in light of SSA's detrimental reliance on prior law. Id. at 1187, n.23.

      In its decision, the court directed the Authority to further consider its determination that the SSA did not discriminate against NTEU when it denied NTEU the permits. NTEU V. FLRA II, 139 F.3d at 221. Moreover, the court stipulated that if, on remand, the Authority concludes that SSA did in fact violate the Statute in this regard, the Authority may not deny NTEU a remedy. Id. at 219-220.

      On consideration of the remand of the court, and for the purpose of resolving this final aspect of the case, we conclude that SSA did violate section 7116(a)(1) of the Statute in denying NTEU permits to distribute literature on the SSA's premises. Applying the law of the case doctrine, we grant NTEU a remedy and issue a cease and desist order to SSA.

II.     Background

A.     Facts

      The facts, described more fully in the Authority's original decision (Social Security Administration, 45 FLRA 303, 304-06 (1992) (SSA I)), are briefly summarized here. In 1991 SSA denied an NTEU organizer, who was not an employee of SSA, permits to distribute literature on the sidewalks of the SSA's headquarters complex at Woodlawn, Maryland. In the 18 months previous to denying NTEU access to its premises, SSA had granted access to several beneficent organizations. SSA denied the requests because the American Federation of Government Employees (AFGE) was (and still is) the exclusive representative of a nationwide unit of SSA's bargaining unit employees and NTEU did not have equivalent status.

B.     Administrative and Judicial Litigation of the Access Issue

      After having been denied access to the Woodlawn premises, NTEU filed the unfair labor practice (ULP) charge that forms the basis of the instant case. [n1]  Specifically, NTEU alleged that in denying the permit, SSA [ v55 p965 ] both unlawfully assisted AFGE, in violation of section 7116(a)(3) [n2]  of the Statute and discriminated against NTEU, in violation of section 7116(a)(1) [n3]  of the Statute. The General Counsel issued a complaint.

1.     The Authority's Decision in SSA I

      In SSA I, the Authority concluded that SSA did not violate either section 7116(a)(1) or (3) when it denied NTEU access to the Woodlawn complex and therefore dismissed the complaint. In reaching these conclusions, the Authority reasoned that given NTEU's lack of "equivalent status," [n4]  SSA would have violated section 7116(a)(3) by unlawfully assisting NTEU had it granted the union access to its facilities. 45 FLRA at 315. Because SSA would have violated 7116(a)(3) had it granted NTEU access, the Authority held that SSA was obligated to treat NTEU's non-employee organizers differently than it treated the non-labor organizations that had been granted permits. Id. at 323. Accordingly, the Authority concluded there had been no illegal discrimination under section 7116(a)(1).

2.     The D.C. Circuit's Decision in NTEU v. FLRA I

      In NTEU v. FLRA, 986 F.2d 537 (D.C. Cir. 1993) (NTEU v. FLRA I), the court disagreed with the Authority's determinations in SSA I. In the court's view, by construing 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. Expressing concern over the First Amendment implications of the Authority's interpretation of the Statute, the court remanded for the Authority to "consider the constitutional implications of its choice between permissible interpretations of the Statute." Id.

3.     The Authority's Decision on Remand in SSA II

      On remand, the Authority reaffirmed its previous conclusion that SSA had not violated the Statute. SSA II, 52 FLRA 1159 (1997). However, prior to reaching this determination, the Authority significantly revised the doctrine for considering alleged violations of section 7116(a)(1) and (3) in the context of non-employee organizers seeking access to agency premises.

      Turning first to section 7116(a)(3), the Authority abandoned the previous per se approach, which considered only whether the rival had obtained equivalent status, and replaced it with an approach that examines whether the agency action sponsored, controlled, or assisted a labor organization. 52 FLRA at 1174. Adopting and applying private sector precedent, the Authority found no evidence that SSA's denial of access interfered with employee freedom of choice or that SSA's action was otherwise indicative of failing to maintain an arms-length relationship with AFGE. Id. at 1180-81. Accordingly, the Authority concluded that SSA's denial of access had not unlawfully sponsored, controlled, or assisted AFGE in violation of section 7116(a)(3). Id. at 1181. [n5] 

      As for section 7116(a)(1), the Authority initially rejected its previous interpretation of the interrelationship between sections (a)(1) and (a)(3). Under that view, section (a)(3), in effect, trumped (a)(1) because an agency could not be found to have violated (a)(1) if granting access would have been inconsistent with (a)(3). Noting that the Authority's previous rule ignored constitutional considerations such as those present in this case, the Authority reassessed the interplay between the two sections and determined "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. . . ." Id. at 1179.

      The Authority looked to the private sector (NLRB v. Babcock and Wilcox Co., 351 U.S. 105 (1956) (Babcock and Wilcox)) as a starting point in adopting a section 7116(a)(1) framework that examines whether an agency that denies access to a labor organization has a non-discriminatory policy concerning distribution of materials on its premises. 52 FLRA at 1184-85. Under Babcock and Wilcox, an employer may not discriminate against nonemployee distribution of union literature by [ v55 p966 ] allowing other distribution on its premises. 351 U.S. at 112. Notwithstanding this general rule, the Authority pointed out that in the private sector it has been recognized that even when an employer maintains a no-solicitation policy, the employer may ban non-employee union solicitation while at the same time "permitting a small number of isolated beneficent" organizations on its premises. SSA II, 52 FLRA at 1185 (citing Hammary Manufacturing Corporation, 265 NLRB 57, 57 n.4 (1982) (Hammary)). Applying this framework to the case at hand, the Authority noted that SSA had granted access to several beneficent organizations (Disabled American Veterans, Mothers Against Drunk Driving, the Little Sisters of the Poor, and the American Legion). However, the record did not indicate whether other entities had sought and been denied permits during this period. From these facts and the lack of argument on whether SSA's actions fell within the Hammary exception, the Authority concluded that there was insufficient evidence on which to find discrimination. 52 FLRA at 1188. [n6] 

      Finally, the Authority noted that even if it had concluded that SSA violated 7116(a)(1) in denying NTEU a permit, it would not retroactively apply a new rule against SSA. Given SSA's express reliance on Authority law as its basis for denying NTEU a permit, the Authority determined that it would be inappropriate to find SSA in violation of the Statute. Id. at 1189 n.25. [n7] 

4.     The D.C. Circuit's Decision in NTEU v. FLRA II

      On judicial review for a second time, the United States Court of Appeals for the District of Columbia Circuit affirmed the Authority's revised framework for evaluating alleged violations of section 7116(a)(3) and affirmed the Authority's determination that there had been no (a)(3) violation in this case. 139 F.3d at 220. As a result, the court concluded that it "need not determine whether, as the FLRA seems to have believed, the AFGE was entitled to the advantage of exclusive access to the sidewalks as a benefit of incumbency." Id.  [n8] 

      However, on examining the section 7116(a)(1) allegation, the court concluded that the Authority erred in finding no violation of the general rule of Babcock and Wilcox[n9]  Specifically, the court determined that the predicate for the isolated beneficent acts exception was missing in this case because "SSA does not have a general no-solicitation [rule]. . . ." Id. at 218. The court pointed out that SSA administers a permit process pursuant to the Federal Property Management Regulations (FPMR) and these regulations require that every application for a permit be granted unless the proposed use falls into one of five specific categories. Id. Because SSA does not have a general no-solicitation policy, the court concluded that this exception does not apply. Additionally, the court noted that even if SSA had a no-solicitation policy, the court "would have to fault the Authority for applying the isolated beneficent acts exception without examining the 'quantum . . . of incidents' in which the SSA granted permits to beneficent organizations" prior to concluding that the prior beneficent acts were isolated. Id. at 218-19. As a result, the court remanded this aspect of the case to the Authority. Id. at 219.

      Finally, the court rejected the Authority's concern with retroactive application of the new rule. Pointing out that SSA faced no liability for backpay or other material relief, the court noted that a finding of a violation would not unfairly impose on SSA. Accordingly, the court concluded that if, on remand, the Authority adheres to the standard in Babcock and Wilcox and thus finds that SSA engaged in a ULP, "then the Authority may not deny the NTEU a remedy on the ground that it must avoid retroactive lawmaking." Id. at 220. [n10]  [ v55 p967 ]

III.     Analysis and Conclusions

      For the purpose of resolving the complaint in this case, we view Babcock and Wilcox as an appropriate starting point for evaluating whether SSA violated section 7116(a)(1). Applying the court's determination that Hammary is not applicable here because SSA did not have a no-solicitation policy, [n11]  we conclude that SSA impermissibly discriminated against NTEU in violation of section 7116(a)(1) of the Statute when SSA denied NTEU access to distribute information on its outside, public premises after having granted similar access to others.

      As noted earlier herein, the Authority held that it would be inequitable to apply retroactively a revised rule to SSA. This is particularly true given SSA's acknowledged and detrimental reliance on heretofore established Authority law as its basis for denying NTEU a permit. SSA I, 45 FLRA at 311. Notwithstanding the Authority's reluctance to retroactively apply the revised rule to SSA in this case, the court has clearly ruled that the Authority may not refuse to sanction SSA on this basis.

      Given the court's ruling, we adopt, as law of the case, [n12]  the court's determination that the Authority is obliged to find that SSA violated the Statute in this case.

IV.     Order

      Pursuant to section 2423.41 of the Authority's regulations and pursuant to section 7118 of the Federal Service Labor-Management Relations Statute, the Respondent shall:

      1.     Cease and desist from:

           (a)     Discriminating against the National Treasury Employees Union by denying the union access to its outdoor, public premises to distribute literature for organizational purposes, after having granted similar access to others.

           (b)     In any like or related manner interfering with, restraining or coercing employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     Post at headquarters facility in Woodlawn, Maryland, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. On receipt of such forms, they shall be signed by the Chief Executive Officer, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by other material.

           (b)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Region, Federal Labor Relations Authority, Tech World Plaza, 800 K Street, NW, Suite 910, Washington, D.C. 20001, in writing within 30 days from the date of this Order as to what steps have been taken to comply. [ v55 p968 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration (SSA) violated the Federal Service Labor-Management Relations Statute (Statute) and has ordered us to post and abide by this Notice.

Following then existing precedent of the Federal Labor Relations Authority (see Social Security Administration, 45 FLRA 303 (1992)), we denied the National Treasury Employees Union (NTEU) permits to distribute literature on the outdoor, public premises of our headquarters at Woodlawn, Maryland, even though we had previously granted similar permits to other non-labor organizations. The Authority has revised its interpretation of an agency's obligations under section 7116(a)(3) and (1) of the Statute (see Social Security Administration, 52 FLRA 1159 (1997) and Social Security Administration, 55 FLRA No. 158 (September 30, 1999)). As a result of this revised interpretation, our permit policy has been determined to be discriminatory and in violation of section 7116(a)(1) of the Statute.

We hereby notify bargaining unit employees that:

We will not maintain a discriminatory policy concerning the allowing of access to the agency's outdoor, public premises at our headquarters complex at Woodlawn, Maryland, by granting permit requests of certain organizations and denying similar permit requests of labor organizations such as the National Treasury Employees Union.

We will not, in any like or related manner, interfere with, restrain, or coerce any SSA employees in the exercise of their rights assured by the Statute.

      ________________________
SSA Administrator
Woodlawn, Maryland

Date:_______________     By:     ______________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Washington Regional Office, Federal Labor Relations Authority, whose address is Tech World Plaza, 800 K Street, NW, Suite 910, Washington, D.C. 20001 and whose telephone number is: (202) 482-6700.






Footnote # 1 for 55 FLRA No. 158

   NTEU also filed suit against SSA in the United States District Court for the District of Columbia alleging that SSA's refusal to permit the distributing of literature violated NTEU's First Amendment right to free speech. The District Court dismissed the complaint, finding that NTEU was obliged to first exhaust administrative remedies before the Authority. However, on appeal of that dismissal, the D.C. Circuit remanded the case and ordered that it be maintained on the district court's docket pending the Authority's issuance of a decision in the ULP proceeding. National Treasury Employees Union v. King, 961 F.2d 240, 245 (D.C. Cir. 1992).


Footnote # 2 for 55 FLRA No. 158

   Section 7116(a)(3) makes it "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[.]"


Footnote # 3 for 55 FLRA No. 158

   Section 7116(a)(1) makes it "an unfair labor practice for an agency - to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter[.]"


Footnote # 4 for 55 FLRA No. 158

   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, Overseas Education Association, National Education Association and Panama Canal Federation of Teachers, Local 29, American Federation of Teachers, 44 FLRA 419, 425-26 (1992). It is undisputed that NTEU had not achieved equivalent status at the time of the request.


Footnote # 5 for 55 FLRA No. 158

   Member Wasserman did not join in this reasoning and instead found no violation of section 7116(a)(3) because SSA did not provide or deny "services or facilities" in connection with access to the public, exterior premises. 52 FLRA at 1193.


Footnote # 6 for 55 FLRA No. 158

   Member Wasserman, however, indicated that given the differences between governmental and private sector concerns, he considered private sector precedent instructive but not necessarily dispositive. 52 FLRA at 1194. In this case, considering the public nature of the Woodlawn grounds and the fact that access was routinely granted to all who wished to distribute materials, he would have found that SSA violated section 7116(a)(1). Id.


Footnote # 7 for 55 FLRA No. 158

   Member Wasserman agreed with this determination. Id. at 1194.


Footnote # 8 for 55 FLRA No. 158

   The court misconstrued the Authority's view. In explaining how it would analyze allegations of sponsorship, control, or assistance, the Authority pointed out that there are "inherent and concrete benefits to incumbency" including, inter alia, the fact that "the incumbent, as a result of its status, already has access to an agency's premises. . . ." 52 FLRA at 1177. The Authority did not, however, suggest that this access was exclusive .


Footnote # 9 for 55 FLRA No. 158

   As noted previously (supra note 6), Member Wasserman found private sector precedent, such as Babcock and Wilcox, instructive but not dispositive, and instead concluded that SSA's open access policy precluded it from discriminating against NTEU. 52 FLRA at 1194.


Footnote # 10 for 55 FLRA No. 158

   The Authority's petition for rehearing with suggestion for rehearing en banc on this issue was denied.


Footnote # 11 for 55 FLRA No. 158

   With Hammary inapplicable (and no other recognized exception available either, see SSA II, 52 FLRA at 1185-86), we have no reason to evaluate the "quantum of incidents" in which SSA granted permits to beneficent organization.


Footnote # 12 for 55 FLRA No. 158

   See, e.g., Merit Systems Protection Board Professional Association & U.S. Merit Systems Protection Board, 38 FLRA 354, 355 (199