18:0427(59)CA - HHS, Health Care Financing Administration and AFGE and NTEU -- 1985 FLRAdec CA

 18 FLRA No. 59
 
 DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, HEALTH CARE 
 FINANCING ADMINISTRATION 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO 
 Charging Party
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Intervenor
 
                                            Case No. 3-CA-20319
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practices alleged in the complaint and recommending
 that the complaint be dismissed.  Thereafter, the Charging Party and the
 General Counsel filed exceptions to the Judge's Decision, and the
 Respondent and the Intervenor filed oppositions thereto.  /1/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions, and recommendation that the complaint be
 dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20319 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., June 13, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    William Smith Hill
    William McGuire
    For Respondent
 
    James A. Lawrence, Esq.
    Sharon Pinnock
    For Intervenor
 
    John Thornton
    For Charging Party
 
    Susan Shinkman, Esq.
    John W. Kyle, Esq.
    For General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter
 referred to as the Statute) and the Rules and Regulations of the Federal
 Labor Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410 et seq.
 
    Pursuant to a charge filed on February 4, 1982 by American Federation
 of Government Employees, AFL-CIO (hereinafter called the Union or AFGE),
 against Department of Health and Human Services, Health Care Financing
 Administration, Baltimore, Maryland (hereinafter called Respondent or
 HCFA), the General Counsel of the FLRA by the Director of Region 3,
 issued a Complaint and Notice of Hearing on December 10, 1982.  The
 Complaint alleges that HCFA violated Section 7116(a)(3) and (1) of the
 Statute by permitting and failing "to take action to prevent"
 non-employee representation of National Treasury Employees Union (NTEU)
 from soliciting membership from among HCFA's employees at Respondent's
 Baltimore Headquarters.  HCFA filed an Answer, a first Amended Answer,
 and a Second Amended Answer, denying that it had violated the Statute.
 
    A hearing was held before the undersigned in Baltimore, Maryland.
 HCFA, AFGE, NTEU and General Counsel of the FLRA were represented and
 afforded full opportunity to be heard, to examine and cross-examine
 witnesses, to introduce evidence and to argue orally.  Post hearing
 briefs were filed and have been fully considered.
 
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and my evaluation of the evidence, I make
 the following:
 
                             Findings of Fact
 
    Respondent is an activity of the Department of Health and Human
 Services (DHHS), created in 1978 by the merger of the Social
 Rehabilitation Service the Bureau of Health Insurance.  HCFA's central
 office consists of its premises at 6305 Security Boulevard, Baltimore,
 Maryland and a group of employees located in Washington, D.C.  Employees
 of Respondent's Central Office have since August 1980 been exclusively
 represented by AFGE in a unit consisting of professional and
 nonprofessional employees of Respondent's Baltimore, Maryland location
 and nonprofessional employees located in Washington, D.C.
 Representational matters rising in the Baltimore, Maryland location of
 HCFA are handled by AFGE Local 1923 as designee of AFGE.
 Representational matters arising in Respondent's Washington, D.C.
 location have by similar designation been given to AFGE Local 41.
 
    HCFA's Baltimore, Maryland location is a multi-building complex.
 HCFA's employees occupy, among other buildings at the complex, the East
 High Rise and the East Low Rise.  The majority of space in the East High
 Rise and East Low Rise Buildings is occupied by HCFA's employees,
 although the Social Security Administration, DHHS, occupies some portion
 of space on the ground floor and first floor of the East Low Rise.
 
    The East High Rise Building is a rectangular structure with
 entranceways and lobby areas along its northern, eastern and western
 sides.  The East Low Rise Building is a rectangular structure with
 entranceways and lobby areas along the eastern and western sides of its
 ground floor and the southern side of its first floor.  Between the East
 Low Rise Building and the East High Rise Building is a cafeteria, /2/
 with its main entranceway off of the ground floor hallways of the East
 High Rise.
 
    William Holman is HCFA's Director of Labor Relations.  In December
 1980, at the time Mr. Holman was being interviewed for his position, he
 was told that the NTEU was "sniffing around" or exhibiting interest in
 the AFGE bargaining unit.  In June 1981, HCFA received a request from
 NTEU asking for certain information including the size and location of
 the AFGE unit.  On August 13, 1981, HCFA furnished NTEU with the
 information it requested.  In later November 1981, Holman was
 telephonically contacted by NTEU representative Scott Schaefer who said
 he wished to meet with HCFA's labor relations office.  Holman and a
 staff member met with Schaefer and another NTEU representative,
 whereupon the NTEU representatives said they planned to come to HCFA's
 premises to distribute literature and solicit signatures.  Holman, who
 had never been involved in an organizing campaign before, informed the
 NTEU representatives that his investigation and that of his staff had
 shown that HCFA was not free to provide NTEU with any facilities or
 anything else.  Holman told Schaefer of his understanding that the
 cafeteria, the western entranceway to the ground floor of the East High
 Rise and the southern entranceway to the first floor of the East Low
 Rise were public areas.  Schaefer did not ask Respondent's permission to
 come into the public areas of the East High Rise or East Low Rise at any
 time.
 
    In early or mid-December 1981, non-employee representatives of NTEU
 solicited signatures from NCFA's employees in the first floor lobby area
 of the East Low Rise, and the ground floor of the East Low Rise.  HCFA
 employees were asked to sign a petition for the purpose of supporting an
 election between AFGE and NTEU.  On the first floor lobby area of the
 East Low Rise, the NTEU representatives also distributed leaflets.
 Non-employee representatives of NTEU solicited signatures from HCFA's
 employees on December 21, 22 and 23, 1981.  Respondent's employees were
 asked to sign a petition for the purpose of having a secret ballot
 election in which NTEU would be a choice.  During the period between
 late November 1981 and December 25, 1981, Holman saw an NTEU
 representative passing out pamphlets and taking signatures in the first
 floor lobby area of the East Low Rise Building.  Holman asked the NTEU
 representative if she had General Services Administration (GSA)
 permission to be on the property.  The NTEU representative replied that
 she had such permission.  No other questions were asked of the NTEU
 representative by Holman.
 
    During this same period of time Holman was approached by
 representatives of AFGE Local 1923, who complained that Holman should
 not allow NTEU access to the premises.  Holman replied that as NTEU was
 on GSA property over which Respondent had no control.  Holman was
 approached during the same period by a representative of AFGE who
 referred Holman to decisions of the Assistant Secretary the FLRA,
 including 2 FLRA 359.  Holman replied that the advice from his agency
 was that he could do nothing to keep NTEU from the property.  This
 advice had come from HCFA's General Services Supervisor, Richard Rohde,
 who acted as liaison with GSA.  Rohde had been approached by the labor
 relations staff and asked his opinion as to whether lobby areas of
 Respondent's premises were public access spaces.  Rohde had said they
 were public access spaces.  Holman replied solely on Rohde's advice
 before December 25, 1981.  Shortly after the Christmas 1981 holiday,
 HCFA's labor relations staff and Holman looked into whether HCFA could
 keep NTEU off the premises and contacted representatives of DHHS at the
 National and Philadelphia Regional level, as well as representatives of
 other Federal agencies.  Holman also contacted the GSA Building managers
 at Respondent's Headquarters, including Mr. Glover, the GSA
 representative handling the East Low Rise and East High Rise Buildings.
 Glover "waivered a little bit" on the question of NTEU's access to those
 buildings.  Glover had told Flynn of AFGE Local 1923 that NCFA
 controlled the areas of the East Low Rise in which NTEU was soliciting.
 Holman was telephonically informed by a Mr. Roth, an Area Manager of
 GSA, that Roth would not stop NTEU from entering Respondent's Baltimore,
 Maryland location.
 
    In early January 1982, Holman was telephonically contacted by a Ms.
 Pinnock, a representative of NTEU, who stated NTEU's intention to
 re-enter two unidentified buildings.  Holman asked Pinnock if she would
 stay off the property until HCFA further examined the issue.  Pinnock
 stated that she did not have to stay off the property and that she would
 respond further after speaking with Schaefer.  Pinnock spoke to
 Schaefer, stating that HCFA would not allow NTEU in public access areas
 for further petitioning.  Schaefer met the second week of January 1982,
 with two of Respondent's Labor Relations Specialists, Mr. McGuire and
 Mrs. Holland.  Schaefer was told by HCFA's representatives that AFGE had
 objected to NTEU's petitioning in public access areas and HCFA would no
 longer permit NTEU to petition in those areas.  Schaefer told
 Respondent's representatives that HCFA lacked authority to grant or deny
 access to NTEU.  Schaefer provided HCFA's representatives with a copy of
 out-dated GSA regulations on procedures for soliciting signatures in
 public access areas.  HCFA's representatives said they were unaware of
 such regulations.  Schaefer told HCFA's representatives that NTEU would
 allow HCFA 2 weeks in which to reconsider its opposition to NTEU's
 presence on HCFA's property.  Upon return to his office, Schaefer
 telephoned HCFA's representatives and referred them to the updated GSA
 regulations posted in Respondent's lobby areas.  /3/ Sometime after
 January 23, 1982, Holman was telephonically contacted by Pinnock and
 told that NTEU representatives would be re-entering Respondent's
 premises the following day.  Holman replied that Respondent had
 concluded it could not keep NTEU from the premises.  Holman contacted
 Schaefer and said that Respondent's investigation revealed no authority
 to grant or deny NTEU's presence in the public areas.
 
    NTEU representatives sought employee signatures on petitions at
 Respondent's premises on January 27 and 29, 1982 and February 11 and 16,
 1982.  Non-employee representatives of NTEU solicited employee
 signatures on petitions on January 29, 1982 between 11:30 a.m. and 1:00
 p.m. in the cafeteria, ground floor, East High Rise.  NTEU
 representatives engaged in this solicitation were in the cafeteria lobby
 area, asking HCFA's employees to sign a petition for the purpose of
 allowing an election between AFGE and NTEU.  Both Holman and HCFA's
 Chief Contract Negotiator witnessed this NTEU solicitation.  A
 non-employee representative of NTEU used a government telephone in the
 hallway of the ground floor, East High Rise Building during this period.
  This hallway is off of the cafeteria and management caucus room, near
 the elevators.  Joseph Flynn alerted Holman that the NTEU representative
 was using the phone.  Holman walked from the management caucus room, a
 few steps down the hallway, and approached the NTEU representative and
 told the NTEU representative to use nearby public telephones in the
 future.
 
    The cafeteria, lobby areas and hallways connecting lobby areas
 together are space for which Respondent pays no standard level users
 charge or SLUC.  These areas are public, in that the general public can
 freely enter and exit.  HCFA obtains use of such space telephonically or
 by memo asking GSA's permission.  Rohde testified that HCFA does not
 control people in GSA controlled public areas.  GSA Building regulations
 were posted in Respondent's Buildings.  HCFA has a reception desk in the
 lobby area of the ground floor, East High Rise.  The receptionist is an
 employee of HCFA.  At all entranceways to the East High Rise and East
 Low Rise Buildings, the doors carry the statement "HCFA visitors please
 report to the reception desk."
 
                        Discussion and Conclusions
 
    Section 7116(a)(3) of the Statute provides:
 
          "7116 Unfair Labor Practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency . . .
 
          (3) 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;  . . . "
 
    The basic intention and approach of section 7116(a)(3) of the Statute
 is the same as that set forth in Section 19(a)(3) of Executive Order
 11491, as amended, /4/ the predecessor instrument governing
 labor-relations in the federal sector.
 
    It is unlawful and violative of the Statute for an Agency to grant
 access to its premises to a labor organization, without equivalent
 status, to conduct organizing or solicitation campaigns.  cf. Defense
 Supply Agency, Defense Contract Administration Services Region, SF,
 Burlingame, California, A/SLMR No. 247 (1973), Department of the Army,
 U.S. Army Natick Laboratories, Natick, Massachusetts, A/SLMR No. 263
 (1973);  Department of the Navy, Navy Commissary Store Complex, Oakland,
 A/SLMR No. 654 (1976);  Department of the Army;  Commissary, Fort Meade,
 A/SLMR No. 793 (1977);  United States Department of Justice, United
 States Immigration and Naturalization Service, 9 FLRA 253 (1982);  and
 Department of Transportation, Federal Aviation Administration,
 Washington, D.C., 2 FLRA 359 (1979).
 
    In the instant case the solicitations by NTEU were carried on in the
 public areas (entries, lobbies and cafeteria) over which Respondent has
 no jurisdiction and which are under the control and supervision of the
 General Services Administration (GSA).  Respondent advised AFGE that it
 had no control over the areas utilized by NTEU and that GSA controlled
 those areas.  On the occasion that Respondent HCFA was advised that an
 NTEU representative was using one of Respondent's telephones, located in
 a public area, Respondent instructed the NTEU representative to use a
 public phone.
 
    In these circumstances I conclude that Respondents did not give any
 unlawful assistance to NTEU.  Respondent did not permit or authorize
 NTEU to utilize any of Respondent's facilities.  Those facilities that
 NTEU used were controlled by GSA.
 
    General Counsel of the FLRA contends that Respondent has some sort of
 affirmative obligation to go to another, totally separate, Federal
 Agency, GSA, and, to some degree, urge or insist that GSA forbid NTEU
 from utilizing GSA controlled space, which is contiguous to Respondent's
 space.  I find no such obligation imposed on Respondent by the express
 language of Section 7116(a)(3) of the Statute, by the Statute's
 legislative history, by FLRA interpretations of the Statute or by any
 common sense reading of the Statute.  The Section 7116(a)(3) of the
 statute is a limitation on Agency conduct;  any imposition of an
 affirmative obligation to control the conduct of any other agency would
 have to be express.  The limits of any such obligation would be
 difficult to draw.  Would an agency have obligation to insist that the
 Interior Department stop union solicitation in a National Park across
 the street from a federal office building?  Different agencies' space
 often abut, in all these instances would one agency violate the Statute
 if it did not sufficiently insist that another agency stop union
 solicitation.  Such an obligation would be onerous and, in light of the
 independence of agencies, unworkable.
 
    General Counsel of the FLRA also contends that NTEU's use of GSA
 space violated GSA's own rules and regulations.  Somehow this was
 alleged to be a violation of law by Respondent.  On the contrary, while
 that was a matter among GSA, NTEU and AFGE, it did not constitute a
 violation of the Statute by Respondent.
 
    In light of the foregoing I conclude that the record herein does not
 establish that HCFA violated Section 7116(a)(3) and (1) of the Statute.
 It is therefore recommended that the Authority issue the following:
 
                                   ORDER
 
    The Complaint in Case No. 3-CA-20319 be, and it hereby is, dismissed.
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  August 30, 1983
    Washington, DC
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent's opposition to the exceptions of the Charging
 Party and the General Counsel was untimely filed and, hence, was not
 considered by the Authority in reaching its decision herein.
 
 
    /2/ The cafeteria is operated by ARA, pursuant to a contract with
 GSA.
 
 
    /3/ Applicability.  These rules and regulations apply to all property
 under the charge and control of the U.S. General Services Administration
 (GSA) and to all persons entering in or on such property.  Each occupant
 agency shall be responsible for the observance of these rules and
 regulations.
 
    Soliciting, vending, and debt collection (41 CFR 101-20.308).
 Soliciting aims, commercial or political soliciting, and vending of all
 kinds, displaying or distributing commercial advertising or collecting
 private debts on GSA-controlled property is prohibited.  This rule does
 not apply to (a) national or local drives for funds for welfare, health,
 or other purposes as authorized by the "Manual on Fund Raising Within
 the Federal Service," issued by the U.S. Office of Personnel Management
 under Executive Order 10927 of March 18, 1961, and sponsored or approved
 by the occupant agencies;  (b) concessions or personal notices posted by
 employees on authorized bulletin boards;  (c) solicitation of labor
 organization membership or dues authorized by occupant agencies under
 the Civil Service Reform Act of 1978 (Public Law 95-454);  and (d) a
 lessee, or its agents and employees, with respect to space leased for
 commercial, cultural, educational, or recreational use under the Public
 Buildings Cooperative Act of 1976 (Title 40, U.S. Code 409(a)(16)).
 Public areas of GSA-controlled property may be used for other activities
 permitted in accordance with Subpart 101-20.7.
 
    Distribution of handbills (41 CFR 101-20.309).  Posting or affixing
 materials, such as pamphlets, handbills or flyers, on bulletin boards or
 elsewhere on GSA-controlled property is prohibited, except as authorized
 in Sec. 101-20.308 or when these displays are conducted as part of
 authorized Government activities.  Distribution of materials, such as
 pamphlets, handbills or flyers is prohibited, except in the public areas
 of the property as defined in Sec. 101-20.701(b), unless conducted as
 part of authorized Government activities.  Any person or organization
 proposing to distribute materials in a public area under this section
 shall first obtain a permit from the buildings manager under Subpart
 101-20.7 and shall conduct distribution in accordance with the
 provisions of Subpart 101-20.7.  Failure to comply with those provisions
 is a violation of these regulations.
 
 
    /4/ Section 19(a)(3) of Executive Order 11491, as amended, provided:
 
          Sec. 19 Unfair labor Practice.
 
          (a) Agency management shall not . . .
 
          (3) sponsor, control or otherwise assist a labor organization,
       except that an agency may furnish customary and routine services
       and facilities under Section 23 of this Order when consistent with
       the best interest of the Agency, its employees and the
       organization, and when the service and facilities are furnished,
       if requested, on a impartial basis to organizations having
       equivalent status.