[ v26 p719 ]
26:0719(88)CA
The decision of the Authority follows:
26 FLRA No. 88
Case Nos. 3-CA-50528
3-CA-50537
DEPARTMENT OF COMMERCE
BUREAU OF THE CENSUS
Respondent
and
EDWARD HANLON
Charging Party/Individual
Case Nos. 3-CA-50529
3-CA-60017
GENERAL SERVICES ADMINISTRATION
Respondent
and
EDWARD HANLON
Charging Party/Individual
DECISION AND ORDER
I. Statement of the Cases
This consolidated proceeding is before the Authority on exceptions
filed by Respondents Bureau of the Census (Census) and General Services
Administration (GSA) to the attached Decision of the Administrative Law
Judge. The issues in the four cases involve the alleged unlawful
interference with the right of Charging Party Hanlon and/or other Census
employees to solicit membership and distribute union literature, meet
with other employees and/or non-employee union representatives, and
otherwise use non-work and/or public areas at the Suitland Federal
Center (Center) where Census headquarters' employees work. The General
Counsel filed oppositions to the Respondents' exceptions.
II. Background
The Center consists of five Federal office buildings with parking
lots, open park lands, baseball fields and garden plots. Most of
Census' employees work in two of the five Federal office buildings at
the Center, designated FOB3 and FOB4, the two buildings involved in
these cases. There is a public parking lot in front of FOB3, and both
buildings have employee parking lots in the rear. Both have main
lobbies and several wings. In FOB4 there is a canteen, and in FOB3
there is a cafeteria and another large lobby called the Sunny Spot
lobby. The public may gain access to the main lobbies and the canteen,
cafeteria and Sunny Spot lobby by obtaining visitors' passes from the
reception desks in the main lobbies. All pedestrian and vehicular
entrances to FOB3 and FOB4 are controlled by guards contracted for by
Census, although none of the lobbies, the canteen, or the cafeteria are
leased by Census.
Census' employees at the Center are represented by the American
Federation of Government Employees (AFGE) Local 2782. At all times
material to these cases, Mr. Hanlon was an employee of Census and a
member of the bargaining unit. He is the former President of Local
2782, and a known supporter of the National Treasury Employees Union
(NTEU). On March 28 and April 8, 1985, meetings were held in training
rooms at the Center by Hanlon and other employees who were NTEU
supporters. /1/ In attendance also were non-employee NTEU
representatives. Both meetings were terminated by Census' Security
personnel when disturbances involving NTEU and AFGE supporters occurred.
A further incident occurred on July 3 between Census employees who
supported NTEU and those who supported AFGE. AFGE supporters tore NTEU
literature off an AFGE bulletin board. Additional background pertaining
to each of the consolidated cases is set forth below.
III. Case No. 3-CA-50537
A. The Judge's Findings and Conclusions
On or about April 10, Hanlon and several other bargaining unit
employees received a memorandum from Census' Labor Relations Officer
Woodard. The memorandum, among other things, directed the employees to
"stop meeting with representatives of any Union, other than AFGE, in any
Census Bureau facilities or anywhere on the Suitland reservation." In
answer to Hanlon's inquiry as to the meaning of this statement, Woodard
replied that the phrase "Suitland reservation" included the park land,
roadways, parking lots and perimeter sidewalks. Census' issuance of
this memorandum is alleged to have violated the rights of Hanlon and
other Census employees assured by section 7102 of the Federal Service
Labor-Management Relations Statute (the Statute).
The Judge found that section 7102 protects the right of employees to
solicit membership and distribute literature on behalf of a labor
organization during non-work time in non-work areas, including the right
to meet and talk with non-employee union representatives in areas where
members of the public are allowed free access. He found that Census'
April 10 memorandum was an unjustified restriction on these employee
rights, and that Respondent Census therefore violated section 7116(a)(1)
by issuing the memorandum. Because it was neither alleged nor argued,
the Judge found it unnecessary to decide whether the April 10 memorandum
also violated the Statute insofar as it could be construed as referring
to union representatives other than non-employee union representatives.
Judge's Decision at note 15. Among other things, the Judge ordered
Census to cease and desist from maintaining a rule that forbids its
employees from meeting with representatives of NTEU, or any other labor
organization, on those outdoor areas of the Suitland Federal Center
routinely used by the public.
B. Positions of the Parties
With regard to Case No. 3-CA-50537, Census disagrees with paragraph
1(a) of the Judge's order as inconsistent with his statement at note 15
of his decision. Census argues that the Judge's finding of a violation
was limited to non-employee union representatives, but that the order
may be construed to apply to employee, as well as non-employee, union
representatives. The General Counsel argues that the Judge's order is
consistent with his conclusions in this regard.
C. Analysis and Conclusions
As the Judge noted, under section 7102 employees have the right to
form, join or assist any labor organization. This section protects the
right of employees to solicit membership and distribute literature on
behalf of a labor organization during non-work time in non-work areas.
It also protects their right to meet and talk with non-employee union
representatives in non-work areas like those involved in this case,
where members of the public are allowed free access. We therefore find,
in agreement with the Judge, that Census' April 10 memorandum was an
unjustified restriction on these employee rights in violation of section
7116(a)(1) of the Statute. Noting particularly that Census did not
except to the Judge's finding and conclusions with regard to the merits
of the complaint in this case, we adopt them. We shall limit our order
in this regard to non-employee union representatives, consistent with
the Judge's findings.
IV. Case Nos. 3-CA-50528 and 3-CA-50529 /2/
A. The Judge's Findings and Conclusions
By memo dated May 30 to Census' Labor Relations Officer Woodard,
Hanlon informed management that he and other bargaining unit employees
would be exercising their section 7102 rights by distributing literature
during non-work time in non-work areas, specifically in the lobbies, the
canteen and the cafeteria of FOB3 and FOB4. Woodard initially responded
by stating that "neither you nor other bargaining unit members are
authorized to distribute literature which solicits or which gives the
appearance of soliciting for a labor organization other than AFGE Local
2782, the exclusive representative." Subsequently, Woodard, by
memorandum dated July 12, advised Hanlon that Census authorized the
distribution of union literature in the Sunny Spot lobby and outside the
fenced areas of FOB3 and FOB4, but only by one employee at a time.
Woodard stated that she would forward a request to the GSA Buildings
Manager for approval and would advise Hanlon as to the response. The
request was approved by the GSA Buildings Manager on July 16, and Hanlon
was so advised by Woodard by memo dated July 18. Subsequently, Census,
by memoranda dated December 6, notified Hanlon and other employees that
three employees rather than one would be allowed to use the Sunny Spot
lobby.
It is alleged in Case Nos. 3-CA-50528 and 3-CA-50529 that, by these
actions, Census and GSA, respectively, violated section 7116(a)(1) of
the Statute by maintaining a restrictive rule that unlawfully interfered
with the employees' exercise of their section 7102 rights under the
Statute. It is alleged further, in Case No. 3-CA-50529, that GSA'S
subsequent actions, more fully set forth in the discussion below in Case
No. 3-CA-60017, show that GSA was reaffirming its approval of such a
restrictive rule.
The Judge found first that the lobbies, the canteen and the cafeteria
of FOB3 and FOB4 are areas that are used by Census employees in their
non-work time and are non-work areas for purposes of all the cases
before him. He found that Census' July 18 memorandum, approved and
sanctioned by GSA, interfered with the section 7102 rights of Hanlon and
other employees to distribute literature, in violation of section
7116(a)(1) of the Statute, by denying the right to use the lobbies, the
canteen and the cafeteria. He found that the limitation of the right to
such activity in the Sunny Spot lobby to one employee at a time was an
unreasonable interference with the employees' section 7102 rights. As
to this latter finding, the Judge found that the three incidents
involving supporters of NTEU and AFGE were not sufficient justification
for the limitations imposed. He further found that Census' memoranda of
December 6, allowing three employees rather than one to use the Sunny
Spot lobby, were not sufficient to cure the violations found.
As to GSA, the Judge rejected GSA'S argument that it owed no duty to
Hanlon and other employees because they are not employees of GSA.
Recognizing that GSA cannot be held generally responsible for the
unlawfully restrictive acts of its tenant agencies, the Judge found that
GSA is responsible here because the record shows that GSA has jointly
controlled the space involved with its tenant Census. The Judge noted
particularly that GSA has always yielded to the wishes of Census and
here affirmed Census' actions.
B. Positions of the Parties
Respondent Census disagrees with the Judge's finding that the lobbies
of FOB3 and FOB4 are non-work areas. It argues that the lobbies are
used by the employees in the course of their work time to gain access to
other work areas, and are in fact work areas. Further, it argues that
the Judge was wrong to rely on Census' allowance of use of the lobbies
as access to the public for such purposes as sales displays, because the
record clearly shows that, since 1984, that practice has been
discontinued and specific security measure have been employed to prevent
such use. Census memorandum, arguing that its limitations were properly
based on the three disruptive incidents, as evidenced by National
Treasury Employees Union v. Golden, No. 85-3881 (D.D.C. March 14 and May
28, 1986), appeals filed, Nos. 86-5310 et al. (D.C. Cir. May 21, 1986).
Census also disagrees with the order refers to all non-work areas of
the Suitland Federal Center, instead of just the specific areas in FOB3
and FOB4 involved in these cases.
Respondent GSA disagrees with the Judge's finding that GSA can in any
circumstances be found in violation of the rights of employees of
Federal agencies other than GSA. GSA argues that in any event it did
not have any obligation here because it cannot control Census' employees
and has no obligation to them, as employees, to allow use of
GSA-controlled space.
The General Counsel, in opposition to Census' and GSA'S exceptions,
generally supports the Judge's conclusions and recommended order. As to
the reliance on the three incidents involving supporters of NTEU and
AFGE to support its limitations on employees' rights, the General
Counsel points out that these incidents were not considered in deciding
to limit employee rights. Additionally, the General Counsel argues that
NTEU v. Golden is clearly distinguishable from the facts of these cases.
C. Analysis and Conclusions
We agree with the Judge's findings, for the reasons stated by him,
that the lobbies of FOB3 and FOB4, as well as the Sunny Spot lobby, the
canteen and cafeteria, are non-work areas. We therefore agree with the
Judge's conclusion that Census, by its July 18 memorandum, interfered
with its employees' rights under section 7102 to distribute union
literature in non-work areas during non-work time.
We also agree with the Judge that the three incidents involving
supporters of NTEU and AFGE were not sufficient justification for the
limitations imposed. Census did not cite these incidents to Hanlon or
to GSA as reasons for imposing the limitations. Moreover, there is no
showing that the incidents were provoked by Hanlon or other NTEU
supporters. Indeed, as found by the Judge, to allow the restrictions
imposed by Census would be to permit AFGE supporters to prevent other
Census employees from exercising the rights guaranteed them by the
Statute. Finally, while the record indicates that since 1984, Census
has not granted access to the public for purposes such as allowing sales
displays, Census did not cite this practice as a reason for imposing the
limitations and there is no showing that the reasons for that change
would justify restricting the rights of employees at issue here.
The District Court's decision in NTEU v. Golden does not dictate a
different conclusion. In that case, the court had before it a motion by
NTEU and Hanlon seeking declaratory and injunctive relief for violations
by Census and GSA of their rights under the Constitution. The court
found that the interior areas of FOB3 and FOB4 are public areas, but are
"non-public forums" and that defendants Census and GSA therefore had a
right to reasonably limit access to those areas. The court decided
that, while there was no evidence of disruption, the restrictions placed
on Hanlon and NTEU were not wholly unreasonable. The court did not have
before it the question of employee rights under the Statute. Indeed,
the court noted (slip op. of March 14, 1986, at 10) that "Hanlon, unlike
plaintiff NTEU, may have claims against the defendant Census Bureau
under the (Statute)" and that "Hanlon's rights . . . under the CSRA, are
not necessarily co-extensive with his rights as a citizen under the GSA
regulations and the Constitution." Also, in its order accompanying its
decision, the court directed the parties to petition the FLRA for relief
of further labor disputes, stating that "the Court is satisfied the
parties can receive full and adequate relief from the FLRA. That
administrative agency was created by Congress to resolve labor related
disputes of this nature."
We also agree with the Administrative Law Judge, based on his
reasoning, that GSA violated the section 7102 rights of Census'
employees. In this regard, we note particularly the established joint
control over the space involved, and GSA'S affirmation of of Census'
actions. GSA relies on the Authority's decision in Department of Health
and Human Services, Health Care Finance Administration, 18 FLRA 427
(1985) (HCFA) to show that it owes no duty to Census employees. /3/
GSA'S reliance of HCFA is misplaced. In HCFA we found that the agency,
the Health Care Finance Administration, did not owe AFGE an affirmative
duty to persuade GSA to stop the solicitation of employees by
non-employee NTEU representatives because the agency had no control over
certain public areas and did not have the right to influence GSA'S
control over those areas. We did not pass on what the extent of the
agency's statutory obligations would have been had it had any control,
or on the question of GSA'S responsibilities, since there were no
violations alleged against GSA in that case. Further, HCFA dealt only
with the rights of non-employees to use public areas; it did not
involve the rights of employees to use non-work areas, which is the
issue before us.
Finally, we find no merit in Census' exception to the scope of the
Judge's Order in paragraph 1(b). Census argues that the order should be
limited to those areas specifically found by the Judge to be non-work
areas. We disagree. The violation we find, consistent with the
violation alleged in the complaint, is a violation of the right of
employees to distribute literature and solicit union membership in all
non-work areas while the employees are on non-work time. /4/
V. Case No. 3-CA-60017
A. The Judge's Findings and Conclusions
By letters to GSA of August 2 and 19, Hanlon requested that he, "as
an individual member of the public" and "under FPMR 101-20.7," be
granted a permit for the use at specified times of the lobbies in FOB3
and FOB4, the cafeteria and the Sunny Spot lobby. /5/ Hanlon requested
the permit so that he and other persons could distribute union
literature, and show a union film or video cassette and set up tables
and chairs to disseminate literature in the Sunny Spot lobby. /6/ GSA,
by letter of August 22, denied the request, stating to Hanlon:
Your request is denied for the following reasons:
1. The "end result" of your request to distribute literature
would be to increase membership in the NTEU.
2. The Federal Property Management Regulations (FPMRs)
(101-20.308) require authorization by the occupant agencies for
solicitation of labor organization membership.
3. Your submission for a permit did not include the required
agency authorization.
Hanlon appealed the disapproval of the application to distribute
literature. By letter of September 5, GSA denied the appeal "(b)ased on
a careful review of (the) request, and after consideration of the
position of the occupant agency(.)" Census had forwarded a memorandum to
GSA recommending that Hanlon's requests be denied. The Judge found that
Census' recommendation was a major factor in GSA'S decision to deny
Hanlon's appeal.
It is alleged in Case No. 3-CA-60017 that, by its letters of August
22 and September 5, GSA violated section 7116(a)(1) of the Statute by
refusing to permit Hanlon to show a film and set up tables and chairs
for the purpose of disseminating union information in a non-work area
(the Sunny Spot lobby).
The Judge found that employees have the basic right to distribute
literature and solicit membership on behalf of a union in non-work areas
during non-work time, and that the showing of a union film by employees
during non-work time is a form of solicitation protected by the Statute.
The Judge also found that GSA treated Hanlon as a Census employee and
in fact asked Census for its position as to whether GSA should approve
his request. In rejecting GSA'S argument that it properly denied
Hanlon's request because of the three incidents involving NTEU and AFGE
supporters, the Judge found, as he did in Case Nos. 3-CA-50528 and
3-CA-50529, that these incidents were not sufficient justification for
the limitations imposed. He therefore found that GSA violated section
7116(a)(1) of the Statute by denying Hanlon the use of the Sunny Spot
lobby to show a union film. /7/
B. Positions of the Parties
GSA disagrees with the Judge's finding that it owed a duty to Hanlon
under the Statute to permit him to distribute literature in
GSA-controlled areas and that it improperly limited Hanlon's request.
GSA contends, as it did before the Judge, that it rejected Hanlon's
request for use of the lobbies and cafeteria because: (1) those areas
are not "public areas" under the FPMRs; (2) such use would disrupt the
official business of Census and interfere with its right under the
FPMRs; and (3) Census did not grant Hanlon permission under the FPMRs
to solicit union membership and dues.
The General Counsel supports the Judge's findings and conclusions in
this regard, stressing as it did with Census that GSA did not cite
disruption of Census' business as a reason given to Hanlon at the time
his request was denied.
C. Analysis and Conclusions
We agree with the Judge, based on his rationale, that GSA interfered
with the exercise of Hanlon's rights under section 7102 of the Statute
and thereby committed an unfair labor practice in the circumstances of
this case. As found by the Judge, GSA treated Hanlon as a Census
employee and improperly denied him the right to engage in conduct
protected by the Statute on property jointly administered by Census and
GSA.
As noted above, GSA asserted before the Judge and in its exceptions
that it denied Hanlon's request because, among other things, to have
granted it would have caused undue disruption to the official business
of both Census and GSA. However, in agreement with the reasons stated
by the Judge, we find that this argument does not justify the
limitations imposed. Moreover, as noted above, concern for undue
disruption to agency business was not one of the reasons cited to Hanlon
by GSA.
Finally, we agree with the Judge that the showing of a union film in
these circumstances is a form of solicitation protected by the Statute.
See Social Security Administration, 13 FLRA 409 (1983). Compare
Department of Commerce, Bureau of Census, 24 FLRA No. 92 (1986),
petition for review filed sub nom. Hanlon v. FLRA, No. 87-1093 (D.C.
Cir. Feb. 17, 1987), in which we found that it was not an unfair labor
practice for Census to deny Hanlon's request to use agency property to
set up his own tripods to disseminate union information. Adopting the
rationale of the Judge, we found that that case involved only the use of
agency facilities, a matter of agency discretion, and did not involve
the right of employees to distribute literature on behalf of a labor
organization.
We conclude, in agreement with the Judge, that GSA'S refusal to grant
Hanlon permission to show a union film or video cassette in the Sunny
Spot lobby violated section 7116(a)(1) of the Statute. Noting
particularly the absence of exceptions, we also agree with the Judge's
finding that the complaint must be dismissed insofar as it alleges a
violation by GSA'S denial of the request to set up tables and chairs and
distribute literature, as that part of the request involved several
non-employee union representatives.
ORDER
I. Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Statute, Department of Commerce, Bureau of the
Census, shall:
1. Cease and desist from:
(a) Maintaining a rule that forbids its employees from meeting with
non-employee representatives of the National Treasury Employees Union,
or any other labor organization, on those outdoor areas of the Suitland
Federal Center routinely used by the public.
(b) Maintaining a rule that forbids or unreasonably restricts Edward
Hanlon or other employees from distributing literature on behalf of the
National Treasury Employees Union, or any other labor organization, and
soliciting membership on behalf of the National Treasury Employees
Union, or any other labor organization, during non-work times in
non-work areas of the Suitland Federal Center, including the lobbies of
Federal Office Building 3 and Federal Office Building 4, the cafeteria
in Federal Office Building 3, the canteen in Federal Office Building 4,
the Sunny Spot lobby in Federal Office Building 3 and inside the fenced
areas of Federal Office Building 3 and Federal Office Building 4.
(c) Failing and refusing to seek the necessary approval for such
conduct from the General Services Administration.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Permit its employees to meet with representatives of the National
Treasury Employees Union, or any other labor organization, on those
outdoor areas of the Suitland Federal Center routinely used by the
public.
(b) Permit Edward Hanlon and other employees to distribute literature
on behalf of the National Treasury Employees Union, or any other labor
organization, and to solicit membership on behalf of the National
Treasury Employees Union or any other labor organization during non-work
times in non-work areas, including the lobbies of Federal Office
Building 3 and Federal Office Building 4, the cafeteria in Federal
Office Building 3, the canteen in Federal Office Building 4, the Sunny
Spot lobby in Federal Office Building 3 and inside the fenced areas of
Federal Office Building 3 and Federal Office Building 4; and seek the
necessary approval for such conduct from the General Services
Administration.
(c) Post at its Suitland Federal Center facilities copies of attached
Notice A on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
Director, Bureau of the Census, and 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 any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
II. Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the General Services
Administration shall:
1. Cease and desist from:
(a) Forbidding and unreasonably restricting Edward Hanlon or other
Census Bureau employees from distributing literature on behalf of the
National Treasury Employees Union or any other labor organization during
non-work times in non-work areas of the Suitland Federal Center,
including lobbies of Federal Office Building 3 and Federal Office
Building 4, the cafeteria in Federal Office Building 3, the canteen in
Federal Office Building 4, the Sunny Spot lobby in Federal Office
Building 3 and inside the fenced areas of Federal Office Building 3 and
Federal Office Building 4.
(b) Forbidding and unreasonably restricting Edward Hanlon or any
other Census Bureau employees from exercising their rights under the
Statute by distributing literature and soliciting membership on behalf
of the National Treasury Employees Union, or any other labor
organization, including the showing of films and video cassettes, during
non-work times in non-work areas of the Suitland Federal Center,
including the Sunny Spot lobby of Federal Office Building 3.
(c) In any like or related manner interfering with, restraining, or
coercing Census Bureau employees in the exercise of their rights assured
by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Permit Edward Hanlon and other Census Bureau employees to
distribute literature on behalf of the National Treasury Employees
Union, or any other labor organization and to solicit membership on
behalf of the National Treasury Employees Union, or any other labor
organization, during non-work times in non-work areas of the Suitland
Federal Center, including the lobbies of Federal Office Building 3 and
Federal Office Building 4, the cafeteria in Federal Office Building 3,
the canteen in Federal Office Building 4, the Sunny Spot lobby in
Federal Office Building 3 and inside the fenced areas of Federal Office
Building 3 and Federal Office Building 4.
(b) Permit Edward Hanlon and any other Census Bureau employees to
distribute literature and solicit membership on behalf of the National
Treasury Employees Union, or any other labor organization, including the
showing of films and video cassettes during non-work times in non-work
areas of the Suitland Federal Center, including the Sunny Spot lobby of
Federal Office Building 3.
(c) Post at the Suitland Federal Center facilities copies of attached
Notice B on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
Director, Buildings Management Division, Washington, D.C., and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees of the Bureau of the Census are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing within 30 days from the date of this
Order, as to what steps have been taken to comply.
The complaint in Case No. 3-CA-60017, insofar as it alleges a
violation of the Statute by denying the Charging Party's request to set
up tables and chairs and disseminate union inforamtion in the Sunny Spot
lobby, is dismissed.
Issued, Washington, D.C., April 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier 222, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE A
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT maintain a rule that forbids our employees from meeting
with representatives of the National Treasury Employees Union, or any
other labor organization, on those outdoor areas of the Suitland Federal
Center routinely used by the public.
WE WILL NOT maintain a rule that forbids or unreasonably restricts
Edward Hanlon or other employees from distributing literature on behalf
of the National Treasury Employees Union, or any other labor
organization, and soliciting membership on behalf of the National
Treasury Employees Union, or any other labor organization, during
non-work times in non-work areas of the Suitland Federal Center,
including the lobbies of Federal Office Building 3 and Federal Office
Building 4, the cafeteria in Federal Office Building 3, the canteen in
Federal Office Building 4, the Sunny Spot lobby in Federal Office
Building 3, and inside the fenced areas of Federal Office Building 3 and
Federal Office Building 4.
WE WILL NOT fail or refuse to seek the necessary approval for such
conduct from the General Services Administration.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL permit our employees to meet with representatives of the
National Treasury Employees Union, or any other labor organization, on
those outdoor areas of the Suitland Federal Center routinely used by the
public.
WE WILL permit Edward Hanlon and other employees to distribute
literature on behalf of the National Treasury Employees Union, or any
other labor organization, during non-work times in non-work areas,
including the lobbies of Federal Office Building 3 and Federal Office
Building 4, the cafeteria in Federal Office Building 3, the canteen in
Federal Office Building 4, the Sunny Spot lobby in Federal Office
Building 3, and inside the fenced areas of Federal Office Building 3 and
Federal Office Building 4; and will seek the necessary approval of such
conduct from the General Services Administration.
(Agency) . . .
Dated: . . .
By: (Signature) . . .
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 its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, N.W., 7th Floor (or P.O. Box 33758), Washington,
D.C. 20033-0758 and whose telephone number is: (202) 653-8500.
NOTICE B
NOTICE TO ALL EMPLOYEES OF THE BUREAU OF THE CENSUS
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
EFFECTUATE
THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE HEREBY NOTIFY YOU THAT:
WE WILL NOT forbid or unreasonably restrict Edward Hanlon or other
Census Bureau employees from distributing literature on behalf of the
National Treasury Employees Union, or any other labor organization,
during non-work times in non-work areas of the Suitland Federal Center,
including the lobbies of Federal Office Building 3 and Federal Office
Building 4, the cafeteria in Federal Office Building 3, the canteen in
Federal Office Building 4, the Sunny Spot lobby in Federal Office
Building 3, and inside the fenced areas of Federal Office Building 3 and
Federal Office Building 4.
WE WILL NOT forbid or unreasonably restrict Edward Hanlon or any
other Census Bureau employees from exercising their rights under the
Statute by distributing literature and soliciting membership on behalf
of the National Treasury Employees Union, or any other labor
organization, including the showing of films and video cassettes, during
non-work times in non-work areas of the Suitland Federal Center,
including the Sunny Spot lobby of Federal Office Building 3.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce Census Bureau employees in the exercise of their rights
assured by the Statute.
WE WILL permit Edward Hanlon and other Census Bureau employees to
distribute literature on behalf of the National Treasury Employees
Union, or any other labor organization, and to solicit membership on
behalf of the National Treasury Employees Union, or any other labor
organization, during non-work times in non-work areas of the Suitland
Federal Center, including the lobbies of Federal Office Building 3 and
Federal Office Building 4, the cafeteria in Federal Office Building 3,
the canteen in Federal Office Building 4, the Sunny Spot lobby in
Federal Office Building 3, and inside the fenced areas of Federal Office
Building 3 and Federal Office Building 4.
WE WILL permit Edward Hanlon and any other employees of the Bureau of
the Census to distribute literature and solicit membership on behalf of
the National Treasury Employees Union, or any other labor organization,
including the showing of films and video cassettes during non-work times
in non-work areas of the Suitland Federal Center, including the Sunny
Spot lobby of Federal Office Building 3.
(Agency) . . .
Dated: . . .
By: (Signature) . . .
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 its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, N.W., 7th Floor (or P.O. Box 33758), Washington,
D.C. 20033-0758 and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 3-CA-50528
3-CA-50537
Case Nos. 3-CA-50529
3-CA-60017
DEPARTMENT OF COMMERCE
BUREAU OF THE CENSUS
Respondent
and
GENERAL SERVICES ADMINISTRATION
Respondent
and
EDWARD HANLON
Charging Party
C.J. Schmidt, Esquire
Paul A. Bath, Esquire
For the Respondent Department of Commerce Bureau of the Census
Mary Ann Pacacha, Esquire
For the Respondent General Services Administration
Edward Hanlon
For the Charging Party
David Scholl, Esquire
Peter A. Sutton, Esquire
For the 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, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq., 92 Stat. 1191 (hereafter referred to as the
Statute) and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
A charge in Case No. 3-CA-50528 was filed on September 20, 1985 by
Edward Hanlon, and individual, against Department of Commerce, Bureau of
Census, hereafter referred to as Census. A charge in Case No.
3-CA-50529 was filed on September 20, 1985 by Hanlon against General
Services Administration, hereinafter called GSA. On December 19, 1985
the General Counsel of the FLRA, by the Director of Region III, issued
an Order Consolidating cases and Complaint and Notice of Hearing in Case
Nos. 3-CA-50528 and 3-CA-50529 alleging that Census and GSA violated
Section 7116(a)(1) of the Statute by issuing and maintaining a limited
distribution rule concerning union literature.
A charge in Case No. 3-CA-50537 was filed on September 26, 1985 by
Hanlon against Census. On December 19, 1985 the General Counsel of the
FLRA, by the Director of Region III, issued a Complaint and Notice of
Hearing alleging that Census violated Section 7116(a)(1) of the Statute
by preventing employees from meeting with representatives of any union,
other than Local 2782, American Federation of Government Employees,
hereinafter called AFGE Local 2782 of AFGE, in any Census facility or
anywhere on the Suitland Federal Center.
A charge in Case No. 3-CA-60017 was filed on October 3, 1985 by
Hanlon against GSA. On December 19, 1985 the General Counsel of the
FLRA, by the Director of Region III issued a Complaint and Notice of
Hearing alleging that GSA violated Section 7116(a)(1) of the Statute by
refusing to permit Hanlon to show a film and set up tables and chairs
for the purpose of disseminating union information in a non-work area.
Respondents Census and GSA filed timely Answers denying that they had
violated the Statute.
A prehearing conference was held in Washington, D.C. and all parties
were represented and the undersigned consolidated Case Nos. 3-CA-50528,
3-CA-50529, 3-CA-50537, 3-CA-60017 for the purpose of hearing and
decision. /8/
A hearing in this matter was conducted before the undersigned in
Washington, D.C. Census, GSA, Hanlon 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.
Briefs were filed and have been fully considered.
Based upon the entire record in this matter, /9/ my observation of
the witnesses and their demeanor, and my evaluation of the record I make
the following:
Findings of Fact
Census is the main statistical gathering and analysis agency for the
government. At its headquarters located in Suitland, Maryland, Census
employees approximately 3500 persons, including about 2700 to 3000 who
are represented by AFGE Local 2782.
The Suitland Federal Center (Center), where Census is located,
consists of five Federal office buildings with parking lots, open park
lands, baseball fields, and garden plots. The Center is bordered by
three public highways and is serviced by the Metro public bus system.
Members of the public have access to the grounds and roadways of the
Center, there being no guards at entrance or exit points on the grounds.
Most of the Census headquarters' employees are located in two
buildings in the Center, designated Federal Office Building 3 (FOB3) and
Federal Office Building 4 (FOB4). About 95% of the space in FOB3 is
occupied by Census employees and Census occupies about 50% of the space
in FOB4. /10/ With respect to both FOB3 and FOB4 GSA has not leased to
Census the lobbies of FOB3 and FOB4, the cafeteria located in FOB3, and
the canteen in FOB4 and the Sunny Spot lobby in FOB3.
FOB3 consists of a main wing off which runs seven wings. To travel
between the seven wings of FOB3 one must use the corridors of the main
wing, including the lobby, or on the second and third floors, use
catwalks. In the basement of FOB3 is the G-300 corridor. The cafeteria
is located at the end of the G-300 corridor and at the opposite end is
an area called the Sunny Spot lobby. Also on this corridor is a branch
office of Suburban Trust (a private bank), a Department of Commerce
credit union office, an office of AFGE Local 2782 and gift
shop-convenience store called the "Sunny Spot."
Directly in front of FOB3 is a large, open parking lot for use of
Census employees and visitors. Behind FOB3 is a parking lot for
high-graded Census employees; this lot is enclosed by a 7 foot
chain-link fence located about 20 feet from the building. This fence
has three entry ways for pedestrians and vehicles.
There is a main lobby entrance located in the main wing at the front
of FOB3 and two or three entrances /11/ in the rear of FOB3. A guard
/12/ is located in the main lobby of FOB3 located at a small table at
the entrance door. /13/ Across from the guard's desk is an information
and reception desk staffed by one or two Census employees.
FOB4 is located adjacent to FOB3 and has three entrance points. The
rear of FOB4 is enclosed by a chain-link fence which has two openings
for pedestrians and vehicles. FOB4 is smaller than FOB3 and consists of
only four wings. FOB3 and FOB4 are connected by a tunnel that runs
between the two buildings at the basement level. This tunnel leads into
the Sunny Spot lobby.
All the pedestrian and vehicular entrances to FOB3 and FOB4 are
controlled by guards contracted for by Census. Census employee pass
through any of the entrances into FOB3 and FOB4 by showing their Census
green identification badges. Visitors desiring to enter FOB3 or FOB4
must enter through the main lobbies. When entering FOB3 visitors are
directed by the guard to the reception desk where the visitor is issued,
by the Census employees, a yellow building pass if on official business
or a salmon-colored pass if wishing to use the cafeteria or bank in the
Sunny Spot lobby.
The Sunny Spot lobby contains about 900 square feet, has a number of
corridors and stairwells entering it and contains several vending
machines and bulletin boards. It is a busy area through which employees
in FOB3 and FOB4 pass on their way to the cafeteria, convenience store,
bank, etc.
The canteen in FOB4 is a square room of about 515 square feet and
contains several vending machines and tables and chairs for employees
use while on break and during lunch.
At all times material herein Hanlon has been an employee of Census, a
member of the bargaining unit and, from March 1984 to March 1985,
President of AFGE Local 2782.
On March 28, 1985 Hanlon and several other employees who supported
National Treasury Employees Union, hereinafter called NTEU, scheduled a
training room at Census to hold a meeting with non-employee NTEU
organizers. There was some type of disturbance between AFGE and NTEU
supporters. Security personnel arrived and the meeting was terminated.
On April 8, 1985 a meeting was held by the NTEU supporters in a
training room. A non-employee NTEU representative was speaking to a
group of Census employees. A group of Census employees who were AFGE
supporters came to the training room while the meeting was in progress.
Richard Robinson, Census' Chief of Security entered the training room
and terminated the meeting and told the NTEU representatives, who were
not Census employees, to leave the building. There was then an
altercation between Robinson and certain of the NTEU supporters,
including Hanlon and Census employee Ruth Sanders. /14/
On July 3, 1985 an incident occurred between Census employees who
supported AFGE and those supporting NTEU. AFGE supporters tore NTEU
literature off an AFGE bulletin board and Hanlon, in his report of the
incident, stated that he thought Burns would hit him.
On or about April 10, 1985 Hanlon and nine other bargaining unit
employees received a memorandum from Census' Labor Relations Officer
Woodward. The memorandum noted that certain use of the internal agency
mail had linked Hanlon and the other nine employees to NTEU solicitation
activities and states:
"The Agency must take positive steps to insure full compliance with
the law. We consider any employee actions which endanger the Census
Bureau's legal position a serious matter. Therefore, as protection for
the Agency at this time, we expect you to stop meeting with
representatives of any Union, other than AFGE, in any Census Bureau
facilities or anywhere on the Suitland reservation."
Hanlon asked Woodard, during a telephone conversation, what was the
meaning of the phrase "anywhere on the Suitland reservation," pointing
out that there are many areas at the center to which the public has free
access. Woodward stated that the phrase "Suitland reservation" used in
the April 10 memorandum included the park land, roadways, parking lots
and if the perimeter sidewalks were included if they were included as
well.
Hanlon sent Woodward a Memorandum dated May 30, 1985 in which he and
the unit employees wished to exercise their Section 7102 rights by
distributing literature during non-duty time in the canteen, "the CSvD
canteen," and the Sunny Spot and the lobbies of FOB3 and FOB4 and the
cafeteria. The memorandum assured Woodward that the distribution would
take place during non-duty time and in non-work areas.
Woodward responded to Hanlon in a memorandum dated May 31, 1985. In
her memorandum Woodward stated that she assumed the literature that
Hanlon and the others wanted to distribute was on behalf of NTEU. She
further stated Census would take positive steps "to ensure that
solicitation for a labor organization without equivalent status does not
take place in Census Bureau facilities or on the Suitland reservation.
Accordingly, neither you nor other bargaining unit members are
authorized to distribute literature which solicits or which gives the
appearance of soliciting for a labor organization other than AFGE Local
2782, the exclusive representative."
By memorandum dated June 5, 1985 Hanlon informed Woodward that the
request to distribute literature was made by the employees as
"individual unit employees . . . to be able to communicate with other
unit employees via literature while in non-work areas during non-work
time . . . ." Hanlon stated clearly that access to the premises by
non-employees was not sought. Woodward responded to Hanlon by a
memorandum dated June 5 in which she stated that Census' position, with
respect to the distribution of literature remained as previously stated,
pending advice from the legal staff.
Hanlon sent Woodward a memorandum dated June 6 restating his request
for unit employees to distribute literature to unit employees during
non-work time in non-work areas.
By a memorandum dated July 12, 1985, Woodward advised Hanlon that
Census authorized the distribution of union literature in the Sunny Spot
lobby and outside the fenced areas of FOB3 and FOB4 by only one employee
at a time. Further the distribution must be limited to the working
hours of Census, 7 am to 6 pm and the employees distributing the
material must be in non-duty status and confine the distribution to
three specific areas. Woodward concluded that the request for approval
would be forwarded to the Building Manager and Census would notify
Hanlon as soon as the building manager's reply was received.
By a memorandum dated July 15, 1985 Woodward advised Building Manager
Walter Woodhead that Hanlon, a Census employee, requested that he and
other employees be authorized to distribute literature in "non-work
areas of the Census Bureau . . ." The document stated further:
"Our legal inquiries do suggest that employees may distribute
literature in support of a union other than the exclusive
representative. Since any Census Bureau bargaining unit employees
can claim this right, it is necessary that we maintain order in
the workplace and reduce the likelihood of disruption in Census
Bureau activity. For this reason, the areas that we believe most
clearly lend themselves to general distribution by employees
include the lobby area adjacent to the Sunny Spot in Building 3 as
well as outside the restricted (fenced) zones of Building 3 and 4
. . . ."
On July 16, 1985 Woodhead approved Woodward's memorandum without
alteration and Woodward transmitted the approval to Hanlon by memorandum
dated July 18, 1985, which reiterated that the union literature could be
distributed in the Sunny Spot Lobby and outside the fenced areas of FOB3
and FOB4 by only one person at a time.
On August 2, 1985 /15/ Hanlon sent a letter to Woodhead in which
Hanlon requested "As a member of the public" use of the Sunny Spot lobby
on certain dates to disseminate union information. Hanlon expressed a
desire to set up a movie project and screen or, possibly, a video
cassette player on certain dates and on others to set up two or three
tables and "a half dozen small additional pieces." The letter stated
further "several non-employees will need admittance to the building on
these dates . . . and would not leave the Salmon colored pass zone . . .
." "As a member of the public" Hanlon also requested permission to set
up a single tripod in the lobby of FOB3 and FOB4, the Sunny Spot lobby
and outside the cafeteria entrance to "advertise information about a
vote on reaffiliation with NTEU . . ." Hanlon requested to use the
cafeteria on a specific day from 2:00 pm to 3:00 pm to hold a meeting
open to all employees who wish to attend and "The meeting shall comprise
a speaker(s) from NTEU . . ." Hanlon then named two persons "of the NTEU
as his contact person.
Not having received a responce, Hanlon went to see Woodhead and
advised Woodhead that Hanlon wanted to show a union film and distribute
union literature. Woodhead refused to grant permission.
On August 19, 1985 Hanlon sent a letter to Woodhead reiterating his
request for permission for himself and others to distribute literature
in the main lobbies of FOB3 and FOB4, 1200 wing lobby FOB, the Sunny
Spot lobby and the cafeteria and to show a film in the Sunny Spot lobby.
Hanlon stated he was making the request as an "individual member of the
public" and not on behalf of NTEU or AFGE.
By letter dated August 22, 1985 Woodhead denied Hanlon's requests to
distribute literature concerning NTEU on the grounds that the end result
of the request would be to increase membership in NTEU, that the Federal
Property Management pregulation (101-20.308) requires authorization by
the occupant agencies for solicitation of union membership and Hanlon
had not included an authorization from Census.
By letter dated August 27, 1986 to GSA, Hanlon appealed Woodhead's
disapproval of the application to distribute literature. By letter of
September 5, Alex P. Lucas, GSA Director of Buildings, denied Hanlon's
appeal "Based on a careful review of (his) request, and after
consideration of the position of the occupant agency . . ." Census had
forwarded a memorandum to Lucas recommending that Hanlon's requests be
denied. The record establishes that Census' recommendation was a major
factor in GSA'S decision to deny Hanlon's appeal.
On December 6, 1985 Census issued a number of Memorandum to Hanlon
and other employee AFGE supporters. In the memoranda Census permitted
Hanlon to have two additional employees distribute union literature in
the Sunny Spot lobby and to have tables available. Generally Census
stated it did not intend to interfere with employees exercising their
Section 7102 rights.
During the past two years private computer firms have used the Sunny
Spot lobby for displaying computers, printers, etc., and distributing
literature, including price lists. /16/ These displays are typically
run by three to five individuals. GSA had a standing authorization from
Census to let computer firms use the Sunny Spot lobby. /17/ GSA would
have permitted Hanlon to distribute union literature in the Sunny Spot
lobby if so requested by Census, and if Census agreed to provide
adequate security. /18/
GSA has jurisdiction custody and control of all public buildings
outside the District of Columbia, including the buildings involved in
this case.
The Suitland Center is under the charge and control of GSA. Access to
the Center's complex and grounds outside the building is unrestricted.
GSA has promulgated rules governing persons' entry onto property
under its control. The relevant sections are 40 CFR 101-20.3 and
101-20.7 governing both assigned and unassigned space.
41 C.F.R. 101-20.308 generally prohibits "soliciting alms, commercial
or political soliciting, and vending of all kinds, displaying or
distributing commercial advertising, or collecting private debts on
GSA-controlled property." The exceptions to this general prohibition on
Federal property relevant to this case are:
* * *
(c) solicitation of labor organization membership or dues
authorized by occupant agencies under the Civil Service Reform Act
of 1978 (Pub. L. 95-454); and (d) lessee, or its agents and
employees, with respect to space leased for commercial, cultural,
educational, or recreational use under the Public Buildings
Cooperative Use Act of 1976 (40 U.S.C. 490(a)(16)).
Further, Section 101-20.309 governs the distribution of handbills on
Federal Property:
Distribution of materials, such as pamphlets, handbills, or
flyers, is prohibited, except in the public areas of the property
as defined in Section 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.
In 1976, Congress passed the Public Buildings Cooperative Use Act of
1976 which encourages the use of certain public areas for cultural,
educational, and recreational activities. /19/ Specifically, the
Cooperative Use Act provides that the Administrator of GSA shall:
. . . make available, on occasion, . . . and on such other
terms and conditions as the Administrator deems to be in the
public interest, auditoriums, meeting rooms, courtyards, rooftops
and lobbies of public buildings to persons, firms, or
organizations engaged in cultural, educational, or recreational
activities . . . that will not disrupt the operation of the
building. 40 U.S.C. 490(a)(17)
The Section of GSA'S Property Management Regulations dealing with the
Occasional Use of Public Areas in Public Buildings is Section 101-20.7.
The purpose of the regulations was "to create rules and procedures to be
followed in permitting the occasional use of public buildings and
grounds for cultural, educational, and recreational activities."
The definition of "public area" contained in the regulations
provides:
'Public area' shall mean any area of a public building or its
grounds ordinarily open to members of the public, such as lobbies,
courtyards, auditoriums, meeting rooms, and any other area not
specificially leased by any lessee of the public buildings. 41
CFR 101-20.701(b).
The determination of whether a particular lobby or grounds
constitutes a "public area" for purposes of the Cooperative Use Act is
made on a case-by-case basis by GSA management officials based on such
factors as the need for security, etc.
There are ten grounds set forth in the regulations for disapproval of
an application for a permit for use of a public area. The grounds
relied upon by GSA for disapproval in this case of Hanlon's proposed use
are:
* * *
(4) Disrupt(s) the official business of the agency or agencies
occupying the public buildings;
(5) Interfere(s) with a tenant's quiet enjoyment of their
leasehold. 41 CFR 101-20.703(a).
At Census, requests to use the public areas from non-employees are
submitted to the GSA Buildings Manager at the Suitland Center.
Generally, whenever an employee desires to use space controlled by GSA,
it has been the practice for Census employees to submit the request to
an appropriate management official at Census who then submits the
request to the Buildings Manager for approval. This practice was
instituted to ensure that Census maintains the proper control over
employees and to reduce the likelihood of any disruption in the
workplace.
Finally, there is no dispute that the areas to which Hanlon requested
access are areas for which Census pays no standard level users charge
("SLUC").
Discussion and Conclusions of Law
Section 7116(a)(1) of the Statute provides that it is 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; . . . ." Section 7102 of the Statute provides "Each employee
shall have the right to form, join or assist any labor organization . .
. ."
The FLRA has held that employees have a right, protected by Section
7102 of the Statute to solicit membership and distribute literature on
behalf of labor organizations during non-work time in non-work areas.
e.g. General Services Administration, 9 FLRA 213, (1982), Internal
Revenue Service, North Atlantic Service Center, Andover, Massachusetts,
7 FLRA 596 (1982). The FLRA has further held that an employee has the
right to solicit membership /20/ while in non-duty status in work areas
where the employees being solicited are also in non-duty status, absent
disruption of the activity's operations. See Social Security
Administration, 13 FLRA 409 (1983) and Oklahoma City Air Logistics
Center, Tinker Air Force Base, Oklahoma, 6 FLRA 159 (1981). This right
of employees to distribute literature and solicit membership on behalf
of a labor organization, as recognized by the FLRA, is one of the most
fundamental rights of employees protected by Section 7102 of the
Statute; a right whose protection is most important. Such a right for
employees to communicate among themselves is necessary if the employees
are to have any meaningful right to organize for collective bargaining.
In its April 10th memorandum Census advised Hanlon and certain other
employees that they were to stop meeting with representatives of any
union, other than AFGE, "in any Census Bureau facilities or anywhere on
the Suitland reservation." This memorandum, on its face, seems to
prohibit meeting with all union representatives, /21/ including both
representative who are employees of Census and those who are not Census
employees. All parties seem to assume the reference to union
representatives applied only to non-employee union representatives and
the General Counsel of the FLRA does not allege the April 10 memorandum
reference to union representatives applied to both Census employees as
well as non-Census employees. General Counsel of the FLRA contends only
that the April 10 memorandum interferes with employee Section 7102
rights because Section 7102 of the Statute which protects employee
rights to engage in union solicitation during non-work time encompasses
the right to meet and talk with non-employee union organizers in areas
where members of the public are allowed free access. /22/
The April 10 memorandum specifically instructed Census employees to
stop meeting with representatives of any union anywhere on the Suitland
reservation. The record established that the walkways, and the outside
grounds of the Center were open and utilized by the public at large for
both walkways and recreation. Therefore, absent the April 10
memorandum, the Center grounds are available for use by both Census
employees and non-employee union representatives. The non-employee
Union representative were being excluded from these grounds, which were
otherwise open to the public, solely because they were union
representatives. In such circumstances Census' April 10 memorandum
violated Section 7116(a)(1) of the Statute because it was an unjustified
restriction of the employees' rights to meet with non-employee union
representatives in areas open and available to the general public. c.f.
Spencer Industries, 271 NLRB No. 191 (1981) and Montgomery Ward and Co.,
256 NLRB 800 (1981), enforced 692 F2d 1115 (9th Cir. 1982), Cert.
denied, 103 S.Ct. 1982 (1983).
The record establishes that, with respect to the interior areas
Hanlon wished to utilize for distribution of union material, GSA and
Census, in practice, administer them jointly. Thus, with respect to the
FOB3 lobby Census contracts for the guard and the information desk is
staffed by Census employees that distribute the plastic identification
passes to visitors, including those visitors going to the cafeteria,
Sunny Spot lobby, etc. Further the record establishes that GSA, in
effect, will approve any use of these areas if it is recommended by the
tenant activity, in this case Census.
The record establishes by memorandum dated May 30, 1985 the Hanlon
advised Census, that Hanlon and other Census employees wished to
distribute union literature to all the Census employees during non-work
time in the lobbies of FOB3 and FOB4, FOB3 Cafeterta, FOB3 Sunny Spot
lobby and FOB4 canteen. After an exchange of communcations, by
memorandum of July 18, 1985 Census advised Hanlon that Census employees
in non-work status could distribute literature only in the Sunny Spot
lobby of FOB3 and outside the fenced areas of FOB3 and FOB4. Further,
Census stated that only one person (employee) at a time was authorized
to distribute literature in the Sunny Spot lobby. The GSA Building
Manager approved this July 18 Census Memorandum. Accordingly, Census
and GSA acted jointly in prohibiting Census employees from distributing
union literature at any time in the lobbies of FOB3 and FOB4, the FOB3
Cafeteria and the FOB4 canteen and in restricting the distribution of
union literature in the Sunny Spot lobby to one employee at a time and
to the area outside the fenced areas of FOB3 and FOB4.
The record establishes, and there is no dispute, that the Sunny Spot
lobby is a non-work area. Similarly the FOB3 Cafeteria and FOB4 canteen
are non-work areas where Census employees, and others, go during
non-work times to take coffee and lunch breaks.
The employees enter and leave work through the lobbies of FOB3 and
FOB4. Persons visiting Census on business and those visiting the bank
or the Convenience store in the Sunny Spot lobby enter and receive their
visitor passes in the FOB3 lobby. The record also establishes that
employees travelling to different parts of the building on business,
might, and sometimes do, incidentally, pass through these lobbies.
Also, apparently prior to 1985, during 1984 and before, the lobby in
FOB3 was the cite of some sales and promotional activities, including
some employee-sponsored activities, relating for example, to the
employee recreation and welfare group. Noting all of the foregoing and
recognizing that entrance lobbies are where employees enter and leave
work, are places where employees, before and after work, stop to talk
about many matters including union concerns, I conclude the FOB3 and
FOB4 lobbies are non-work areas that are appropriate for employees to
engage in union solicitation and distribution. See Time Publishing Co.
v. NLRB, 576 F2d 1107 (5th Cir. 1978).
I conclude, in light of the foregoing, that Census' July 18
memorandum, as approved and sanctioned by GSA, interfered with Hanlon's
and other employees' rights to solicit membership and distribute
literature on behalf of a labor organization, insofar as it forbade such
activities during non-work time in the lobbies of FOB3 and FOB4, FOB3
Cafeteria and FOB4 Canteen. Further in so far as the July 18 memorandum
limited the solicitation and distribution in the Sunny Spot lobby to one
employee at a time, I conclude it constitutes an unreasonable
interference and limitation on the employees' rights. In this regard
the limitation to one employee is unreasonable in light of the size of
the Sunny Spot lobby, the amount of traffic that passes through it, the
manner of employees that use it and the other activities that take place
in the Sunny Spot lobby. The three incidents involving supporters of
NTEU and AFGE were insufficient to justify this limitation. The
incidents were minor, two of the three involved non-employee union
representat ves on Census property, and were easily controlled. In
these circumstances, in the absence of any empirical or experiential
evidence, a limit of one employee at a time to distribute Union
literature is an unreasonable interference with employees rights granted
by Section 7102 of the Statute. /23/
Census' memoranda of December 6, 1985 are not sufficient to nullify
Census' interference with the employees' rights. The memoranda only
attempted to resolve the limitation in the Sunny Spot lobby and not in
the other areas and were issued almost 6 months after Census and GSA
promulgated the rules that unlawfully restricted the employees' rights.
GSA contends, in related arguments, that Hanlon has no standing to
allege a violation of Section 7116(a)(1) of the Statute by GSA based on
GSA'S interference with Hanlon's Section 7102 rights because GSA owed
him no obligation under Section 7102 of the Statute because Hanlon was
not an employee of GSA.
Section 7103(a)(2) of the Statute defines employee as "an individual
-- (A) employed in an agency . . ." and Section 7103(a) (3) defines
agency as ". . . an Executive agency . . ." Section 7116(a)(1) of the
Statute provides that it is "an unfair labor practice for an agency --
(1) to interfere with, restrain or coerce any employee in the exercise
by the employee of any right under this chapter; . . ." Under a literal
reading of the foregoing sections of the Statute GSA is an "agency".
Hanlon is an "employee" and GSA could violate Section 7116(a)(1) of the
Statute with respect to Hanlon because there is no stated requirement
that the agency committing interference can only violate the Statute if
it interferes with the rights of its own employees'. Such a literal
approach is too simplistic and does not deal with the aims and purposes
of the Statute.
The purposes of the Statute, as set forth in Section 7101, is to
protect the rights of employees to organize and bargain collectively,
recognizing that such organization and collective bargaining in the
civil service is in the public interest. In order to realize these
purposes Section 7102 of the Statute grants to federal employees the
right to form, join or assist any labor organization and Section
7116(a)(1) of the Statute forbids agency interference with the employees
exercise of these rights. All the employees covered by the Statute
have, at the highest level, a common employer, the Federal government;
thus an agency for whom the employee does not work, is not a complete
stranger. On the other hand it would seem an over broad application of
the Statute to hold an agency responsible for interference with the
rights of its non-employees, who are however Federal employees, because
an agency official might have done or said something that might
incidentally interfere with such a non-agency employees' Section 7102
rights, where such non-agency employees have no other contact with the
agency. /24/ However, as in the subject case, where as agency has a
direct relationship with such federal employees who do not work for it,
I conclude the Statute was meant to protect the rights of the Federal
employees from interference by such a non-employing agency. Thus, GSA
because it controls, either solely or, as in the subject case, jointly
the space in which the employees work is in a position to effectively
eliminate or limit the rights the Statute is meant to protect. GSA is
not a stranger to such employees but rather has certain "employer like"
control them. There is sufficient nexus between GSA and those Federal
employees who work in space controlled by GSA to hold GSA responsible
under the Statute, if it interferes with the employees' rights
guaranteed by the Statute, even where the employees are not employed by
GSA. /25/
In the subject situation, therefore, I conclude GSA was responsible,
together with Census, for maintaining a rule that constituted on
unreasonable and unlawful limitation of the organizational activities of
the Census employees. Thus the limitations set forth in Census' July 18
memorandum, that were approved by GSA, constituted a violation of
Section 7116(a)(1) of the Statute by both GSA and Census.
By letter dated August 2, 1985 Hanlon asked the GSA building for
permission, "as a member of the public . . .," to set up a projector, or
use a video cassette player, on certain days in the Sunny Spot lobby;
to set up two or three tables on certain other days in the Sunny Spot
lobby, including the admission of "several non-employees;" and to set up
a single tripod in the lobby of FOB3, the lobby of FOB4, the Sunny Spot
lobby and outside the Cafeteria entrance to provide information
concerning a union reaffiliation vote and meeting. He also requested to
use the Cafeteria for an hour to hold a meeting of Census employees,
including NTEU speakers. By letter dated August 19 Hanlon repeated his
requests of August 2 only put them in terms of FPMP Sections. By letter
dated August 22, 1985 GSA denied Hanlon's requests because he did not
include authorization from Census for solicitation of labor organization
membership. Hanlon renewed his requests by letter of August 27, 1985
directed to the Director of GSA Northern District. By letter of
September 5, 1985 GSA reiterated its denial of Hanlon's requests "after
consideration of the position of the occupant agency . . . ." The record
establishes that GSA has some control over the areas Hanlon wished to
use.
The unfair labor practice complaint against GSA, Case No. 3-CA-60017,
alleges as a violation of the Statute only GSA'S refusal to grant
Hanlon's request to "show a film and set up tables and chairs for the
purpose of disseminating union information in the Sunny Spot lobby of
FOB #3 . . . ." Thus this decision will be limited these allegations.
As discussed above, the Sunny Spot lobby is a non-work area and
therefore employees' have the right, as protected by the Statute, during
non-work time, to distribute literature and solicit membership on behalf
of a union. Thus GSA'S refusal to permit Hanlon and his associates to
engage in such conduct violated Section 7116(a)(1) of the Statute. It
should be noted that in denying permission to solicit membership and
distribute literature for a union, GSA was apparently withdrawing the
limited permission that had already been granted. Further such a denial
by GSA was not required by any law.
The FLRA has held the showing of a union film by employees during
non-work time is a form of solicitation and is protected by the Statute.
Social Security Administration, 13 FLRA 409 (1983). Thus GSA'S refusal
to permit Hanlon to show a film or video cassette violated Section
7116(a)(1) of the Statute.
It would seem that the setting up of two or three tables in the Sunny
Spot lobby for the distribution of union literature would also be so
protected. /26/ However, part of this request involved "several
non-employees . . . ." This was then a request to set up an area in the
Sunny Spot lobby where non-employees could distribute union literature.
I conclude that, absent a showing of no other means of communication,
the Statute does not grant the right of access to government property
during an organizing campaign to non-employee union representatives for
the purposes of solicitation and distribution. Thus GSA'S refusal to
grant permission to Hanlon to have such a program did not violate the
Statute. In so concluding I note that record references to computer
sales displays in the Sunny Spot lobby were all work related; it was
not an area where the general public was invited to display and sell
items. /27/
GSA contends that it did not grant Hanlon's request "based on three
reasons: (1) those areas do not constitute "public areas" for purposes
of 41 CFR 101-20.7; (2) such use would disrupt the official business of
the agency (Census Bureau) and interfere with the tenant's quiet
enjoyment of its leasehold (assignment) 41 CFR 101-20.703(4) and (5);
and (3) the Census Bureau did not grant permission under 41 CFR
101-20.308(c) to solicit labor organization membership and dues."
GSA contends that because Hanlon made it clear in his letters that he
was requesting permission from GSA as "a member of the public" pursuant
to GSA'S Federal Property Management Regulations and GSA responded
properly under those regulations and legitimately refused Hanlon access
to this GSA controlled space.
Although Hanlon made his request "as a member of the public . . ."
GSA knew, at all times, that Hanlon was a Census employee, and required
that he seek and submit authorization from Census to engage in the
requested activity. Accordingly, GSA cannot protect its conduct by
claiming it treated Hanlon as a member of the public, rather than as
employee whose rights are protected by the Statute. In fact GSA'S
letters made it quite clear that if Census had approved Hanlon's
request, GSA would do the same.
GSA admits, in its brief, that it considered Hanlon's status as an
employee in applying GSA regulations and thus requested Census' opinion
with respect to Hanlon's requests.
At first blush it is a very appealing position that because Hanlon
chose to seek permission to utilize the specified areas as "a member of
the public" /28/ and pursuant to the Federal Property Management
Regulations, /29/ not the Statute, he was not seeking to enforce a right
under the Statute, as an employee, and therefore the matter does not
involve Hanlon's rights under the Statute. /30/ The facts of the
subject case however require a contrary result. Thus in the subject
case, after having requested from Census permission to distribute and
solicit on behalf of a union in the Sunny Spot lobby, and the lobbies of
FOB3 and FOB4, /31/ and having his Statutory rights denied by Census, as
approved by GSA, Hanlon sought by his August letters to go directly to
GSA to seek his protected rights. GSA not only knew of Hanlon's NTEU
activity and status as a Census employee, it treated him as a Census
employee and in fact asked Census for its position as to whether GSA
should approve Hanlon's request. In substance, GSA treated Hanlon as a
Census employee trying to exercise rights protected under the Statute.
Further GSA did not, in its letters, deny Hanlon's requests because
the areas involved were not "public areas," /32/ but rather because
Hanlon had not submitted authorization from Census. However, However,
Hanlon had previously requested permission from Census to engage in
similarly protected conduct in the same areas and Census, with GSA
approval, had substantially denied him such permission. To require
Hanlon to again seek such permission from Census would have been to
require him to engage in a futile and meaningless act. I conclude that
GSA could not, in the circumstances here present, deny Hanlon's request
to engage in protected activity because he failed to engage in such a
futile and meaningless act.
Finally, GSA stated it was justified in denying Hanlon's request to
engage in the requested activity in the Sunny Spot lobby because to
permit it would have resulted in a disruption in Census' business. GSA
contends that because of the three prior incidents involving NTEU and
AFGE supporters it properly anticipated disruptions would occur if it
granted Hanlon's requests. This was particularly true, contends GSA,
with respect to the Sunny Spot lobby, because AFGE'S office is located
off the Sunny Spot lobby. This contention is rejected because, as
concluded above, the prior incidents were minor and did not justify the
denial of such fundamental rights to Census employees. In this regard I
note in the Sunny Spot lobby Census permitted one employee at a time to
engage in such conduct. In the circumstances here present, to permit
the denial of such organization rights to the Census employees based on
the relatively minor NTEU-AFGE incidents, would be to permit AFGE
supporters to prevent Census employees from seeking to organize for
another union. Such a result would frustrate the basic rights of
employees, guaranteed by Section 7102 of the Statute, to aid and support
labor organizations of their choice.
Thus, I find that Hanlon, in asking to show the film or video
cassette in his August letters to GSA, was attempting to engage in
conduct protected by the Statute and that GSA treated Hanlon as a Census
employee and unlawfuly denied Hanlon the right to engage in such conduct
in property jointly administered by Census and GSA. Accordingly, GSA's
refusal to grant Hanlon permission to engage in such protected activity
violated Section 7116(a)(1) of the Statute.
Having concluded that Census and GSA violated Section 7116(a)(1) of
the Statute I recommend that the Authority issue the following:
ORDER
I. Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
the Department of Commerce, Bureau of Census, shall:
1. Cease and desist from:
(a) Maintaining a rule that forbids our employees from meeting
with representatives of National Treasury Employees Union, or any
other labor organization, on those outdoor areas of the Suitland
Federal Center routinely used by the public.
(b) Maintaining a rule that forbids or unreasonably restricts
Edward Hanlon or other employees from distributing literature on
behalf of National Treasury Employees Union, or any other labor
organization, and soliciting membership on behalf of National
Treasury Employees Union, or any other labor organization, during
non-work times in non-work areas of the Suitland Federal Center,
including the lobbies of Federal Office Building 3 and Federal
Office Building 4, the Cafeteria in Federal Office Building 3, the
Canteen in Federal Office Building 4, the Sunny Spot lobby in
Federal Office Building 3 and inside the fenced areas of Federal
Office Building 3 and Federal Office Building 4; and failing and
refusing to seek any necessary GSA approval for such conduct.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
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) Permit our employees to meet with representatives of
National Treasury Employees Union, or any other labor
organization, on those out door areas of the Suitland Federal
Center routinely used by the public and will seek the necessary
GSA approval to permit such meetings.
(b) Permit Edward Hanlon and other employees to distribute
literature on behalf of National Treasury Employees Union, or any
other labor organization, and to solicit membership on behalf of
National Treasury Employees Union or any other labor organization
during non-work times in non-work areas, including the lobbies of
Federal Office Building 3 and Federal Office Building 4, the
Cafeteria in Federal Office Building 3, the Canteen in Federal
Office Building 4, the Sunny Spot lobby in Federal Office Building
3 and inside the fenced areas of Federal Office Building 3 and
Federal Office Building 4; and will seek the necessary GSA
approval for such conduct.
(c) Post at its Suitland Federal Center facilities copies of
attached Notice "A" on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be
signed by a responsible official and 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 any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations notify the Regional Director, Region III, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
II. Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Services Labor-Management Relations Statute, the Authority hereby orders
the General Services Administration shall:
1. Cease and desist from:
(a) Forbidding and unreasonably restricting Edward Hanlon or
other employees of Census from distributing literature on behalf
of National Treasury Employees Union or any other labor
organization during non-work time in non-work areas of the
Suitland Federal Center, including the lobbies of Federal Office
Building 3 and Federal Office Building 4, the Cafeteria in Federal
Office Building 3, the Canteen in Federal Office Building 4, the
Sunny Spot lobby in Federal Office Building 3 and inside the
fenced area of Federal Office Building 3 and Federal Office
Building 4.
(b) Forbidding and unreasonably restricting Edward Hanlon or
any other employees of the Bureau of Census from distributing
literature and soliciting membership on behalf of National
Treasury Employees Union, or any other labor organizations,
including the showing of films and video cassettes, during
non-work time in non-work areas of the Suitland Federal Center,
including the Sunny Spot Lobby of Federal Office Building 3.
(c) In any like or related manner interfering with, restraining
or coercing Census Bureau employees in the exercise of their
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) Permit Edward Hanlon and other Census Bureau employees to
distribute literature on behalf of National Treasury Employees
Union, or any other labor organization, and to solicit membership
on behalf of National Treasury Employees Union, or any other labor
organization, during non-work times in non-work areas of the
Suitland Federal Center, including the lobbies of Federal Office
Building 3 and Federal Office Building 4, the Cafeteria Federal
Office Building 3, the Canteen in Federal Office Building 4, the
Sunny Spot lobby in Federal Office Building 3 and inside the
fenced areas of Federal Office Building 3 and Federal Office
Building 4.
(b) Permit Edward Hanlon and any other employees of the Bureau
of the Census to distribute literature and solicit membership on
behalf of National Treasury Employees Union, or any other labor
organization, including the showing of films and video cassettes
during non-work times in non-work areas of the Suitland Federal
Center, including the Sunny Spot Lobby of Federal Office Building
3.
(c) Post at the Suitland Federal Center facilities copies of
attached Notice "B" on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be
signed by a responsible official and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices to employees of Bureau of the Census are customarily
posted. Reasonable steps shall be taken to ensure that such
Notices are not altered, defaced or covered by any other material.
(d) Pursuant to Section 2423.30 of the Authorities Rules and
Regulations notify the Regional Director, Region III, in writing
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: August 1, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Unless otherwise specified, all dates refer to 1985.
(2) A consolidated complaint issued in these two cases prior to the
consolidation of all four cases for purposes of hearing.
(3) Following a petition for review of the Authority's decision in 18
FLRA 427, the Court of Appeals for the District of Columbia Circuit
remanded the case to the Authority for further treatment. In our
Decision and Order on Remand, we made further findings and reaffirmed
the Authority's original Order. Department of Health and Human Services,
Health Care Finance Administration, 24 FLRA No. 68 (1986), petition for
review filed sub nom. American Federation of Government Employees v.
FLRA, No. 87-1083 (D.C. Cir. Feb. 13, 1987).
(4) We recently found that Census violated the rights of Hanlon and
other employees to solicit membership on behalf of NTEU during non-work
time in work areas where there is no disruption of work. Department of
Commerce, Bureau of the Census, 26 FLRA No. 40 (1987).
(5) Federal Property Management Regulation 101.20-7, entitled
"Occasional Use of Public Areas in Public Buildings," is set forth at 41
CFR 101-20.7.
(6) Hanlon's earlier request to set up a single tripod in all lobbies
and outside the cafeteria was not included in the August 19 letter. The
use of tripods was the subject of our decision in Department of
Commerce, Bureau of Census, 24 FLRA No. 92, petition for review filed
sub nom. Hanlon v. FLRA, No. 87-1093 (D.C. Cir. Feb. 17, 1987).
(7) As noted above, part of the complaint also alleged a violation by
GSA when it denied Hanlon's request to set up tables and chairs and
disseminate union information in the Sunny Spot lobby. The Judge
dismissed that aspect of the complaint because that request involved
several non-employee union representatives.
(8) Case No. 3-CA-60048 was not consolidated with these cases.
(9) General Counsel of FLRA filed a Motion to Correct the Transcript
which was unopposed and is hereby granted.
(10) About 2500 to 3000 Census employees work in FOB3 and another 700
to 1000 Census employees work in FOB4.
(11) These entrances are normally kept locked.
(12) The guard is a contract employee employed by Census.
(13) There are a number of doors into the main lobby, but only one is
open.
(14) On July 7, 1986, Hanlon filed a Motion to Strike Robinson's
testimony at the hearing concerning some alleged comments by Hanlon and
Sanders or, in the alternative, that the hearing be reopened so Hanlon
can submit evidence to rebut this testimony. Hanlon based his Motion on
the fact that he did not become aware of the disputed testimony until
well after the close of the hearing because, as a witness he had been
sequestered during all this testimony. GSA filed a timely opposition to
motion.
Hanlon had the opportunity to be represented by counsel, but was not.
The General Counsel of the FLRA was present during the hearing. In
these circumstances I conclude Hanlon had the opportunity to rebut the
disputed testimony. He was allegedly at the meeting that was the
subject of the disputed testimony. I am constrained not to grant the
motion to strike or to reopen the record to put in additional evidence
to rebut unfavorable evidence. To grant the motion would do harm to the
orderly hearing and disposition of cases. Further the disputed
testimony, whether certain derogatory statements were made by Hanlon and
others to Robinson, is not relevant and no finding about it need be
made.
Accordingly, Hanlon's Motion is hereby DENIED.
(15) Hanlon, on August 2, 1985 sent a memorandum to Census requesting
permission to distribute literature in work areas during non-work times.
This request and Census' response is the subject of Case No. 3-CA-60043
and will be dealt with in that case.
(16) 40 U.S.C. 285.
(17) These computer displays related to the work of the Census
employees.
(18) Some employee organizations (e.g. recreation association) have
occasionally had sales in the Sunny Spot lobby. Prior to 1985, during
1984 and before, such organizations also used the FOB3 lobby.
(19) Prior to the passage of the Cooperative Use Act, GSA permitted
members of the public to use certain areas of public buildings i.e.,
auditoriums and meeting rooms. However, lobbies, courtyards, and
grounds were generally not available for use by the public.
(20) Althought there maybe some distinctions between solicitation of
union membership and distribution of union literature, the two matters
are usually considered jointly because they usually occur jointly. They
are part of that basic right of employees to communicate among
themselves and to support a labor organization. Further the differences
are insignificant and the same considerations apply to both. There may
be some situations in which distribution might present a litter problem
whereas solicitation might not. In those distribution cases where
litter is a problem such a litter problem would have to be taken into
consideration. However, the same would apply if solicitation involved
union membership cards and raised a litter problem. Normally, however,
solicitation and distribution rights are identical and the terms are
substantially interchangeable. In the subject case, no litter problem
has been raised.
(21) Excepting, of course, AFGE representatives.
(22) Because it was neither alleged or nor argued I need not decide
whether the April 10 memorandum violated the Statute because by its
broad reference to union representatives, not just non-employee union
representatives.
(23) In so concluding I am not holding that in other circumstances
such a limitation would be unreasonable nor am I holding that, if
incidents and disruptions occur when more than one employee engages in
distribution of union literature, that an agency can not impose a
limitation on the number of employees who can distribute union
literature.
(24) Such a situation might involve a public statement by an agency
official which some non-agency employees see on television, where these
non-agency employees have no other contact or relationship with the
agency than observing the agency-official on television.
(25) GSA'S reliance on Department of Health and Human Services,
Health Care Financing Administration, 18 FLRA No. 59 (1985) remanded sub
nom AFGE v. FLRA, F . . . 2d . . . , No. 85-1478, (USCA-DC Cir. on June
17, 1986) is misplaced and that case is inopposite. In that case HCFA
was found not to be responsible for permitting union solicitation in
property HCFA did not control. There was no complaint against GSA.
(26) Hanlon's requests to show the film and to set up two or three
tables, etc. did not involve Hanlon's requesting GSA to provide a
projector, video cassette player or the tables, but rather permission to
set up such equipment. Thus, I do not rule on the propriety of
providing such equipment, where it is not normally set up, etc.
(27) The sales by employee organizations were not shown to have been
conducted by non-employees.
(28) In his August 19 letter Hanlon made it clear that "as a member
of the public" did not mean as opposed to employee of Census, rather he
stated, "I want to make my position absolutely clear. I am making the
request as an individual member of the public. I am not making this
request on behalf of or as an agent of any labor organization, AFGE, or
NTEU."
(29) More particularly in his August 19 letter Hanlon referred to
FPMP 101-20.7, dealing with use of Public Areas in Public Buildings.
(30) See United States Forces Korea/Eighth United States Army, 15
FLRA 373 (1984).
(31) Areas jointly administered by GSA and Census.
(32) Under the Statute the issue is whether the areas involved are
"non-work areas" not whether they are "public areas." Thus whether or
not these were "public areas" is not relevant. For the purposes of
Hanlon's request to engage in union activity, the relevant consideration
is whether the request involved non-work areas. Accordingly, the fact
that GSA had not during 1985 given permits, for public use of the
cafeteria or the main lobbies is irrelevant.
NOTICE A
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
of TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT maintain a rule that forbids our employees from meeting
with representatives of National Treasury Employees Union, or any other
labor organization, on those outdoor areas of the Suitland Federal
Center routinely used by the public.
WE WILL NOT maintain a rule that forbids or unreasonably restricts
Edward Hanlon or other employees from distributing literature on behalf
of National Treasury Employees Union, or any other labor organization,
and soliciting membership on behalf of National Treasury Employees Union
or, any other labor organization, during non-work times in non-work
areas of the Suitland Federal Center, including the lobbies of Federal
Office Building 3 and Federal Office Building 4, the Cafeteria in
Federal Office Building 3, the Canteen in Federal Office Building 4, the
Sunny Spot lobby in Federal Office Building 3 and inside the fenced
areas of Federal Office Building 3 and Federal Office Building 4; and
fail and refuse to seek any necessary GSA approval for such conduct.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL permit our employees to meet with representatives of National
Treasury Employees Union, or any other labor organization, on those out
door areas of the Suitland Federal Center routinely used by the public
and will seek the necessary GSA approval to permit such meetings.
WE WILL permit Edward Hanlon and other employees to distribute
literature on behalf of National Treasury Employees Union or, any other
labor organization, and to solicit membership on behalf of National
Treasury Employees Union, or any other labor organization, during
non-work times in non-work areas, including the lobbies of Federal
Office Building 3 and Federal Office Building 4, the Cafeteria in
Federal Office Building 3, the Canteen in Federal Office Building 4, the
Sunny Spot lobby in Federal Office Building 3 and inside the fenced
areas of Federal Office Building 3 and Federal Office Building 4 and
will seek the necessary GSA approval of such conduct.
(Agency or Activity) . . .
Dated: . . .
By: (Signature) . . .
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 Federal Labor Relations Authority, Region 3,
whose address is: 1111 - 18th Street, NW, Room 700, P.O. Box 33758,
Washington, DC 20033-0758 and whose telephone number is: (202)
653-8452.
NOTICE B
NOTICE TO ALL EMPLOYEES OF BUREAU OF THE CENSUS
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY EMPLOYEES OF BUREAU OF THE CENSUS THAT:
WE WILL NOT forbid or unreasonably restrict Edward Hanlon or other
employees of Census from distributing literature on behalf of National
Treasury eMployees Union or, any other labor organization, during
non-work time in non-work areas of the Suitland Federal Center,
including the lobbies of Federal Office Building 3 and Federal Office
Building 4, the Cafeteria in Federal Office Building 3, the Canteen in
Federal Office Building 4, the Sunny Spot lobby in Federal Office
Building 3 and inside the fenced areas of Federal Office Building 3 and
Federal Office Building 4.
WE WILL NOT forbid or unreasonably restrict Edward Hanlon or any
other employees of the Bureau of Census from distributing literature and
soliciting membership on behalf of National Treasury Employees Union, or
other labor organization, including the showing of films and video
cassettes, during non-work time in non-work areas of the Suitland
Federal Center, including the Sunny Spot lobby of Federal Office
Building 3.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce Census Bureau employees in the exercise of their rights assured
by the Federal Service Labor-Management Relations Statute.
WE WILL permit Edward Hanlon and other Census Bureau employees to
distribute literature on behalf of National Treasury Employees Union, or
any other labor organization, and to solicit membership on behalf of
National Treasury Employees Union, or any other labor organization,
during non-work times in non-work areas of the Suitland Federal Center,
including the lobbies of Federal Office Building 3 and Federal Office
Building 4, the Cafeteria in Federal Office Building 3, the Canteen in
Federal Office Building 4, the Sunny Spot lobby in Federal Office
Building 3 and inside the fenced areas of Federal Office Building 3 and
Federal Office Building 4.
WE WILL permit Edward Hanlon and other employees of the Bureau of the
Census to distribute literature and solicit membership on behalf of
National Treasury Employees Union, or any other labor organization,
including the showing of films and video cassettes during non-work times
in non-work areas of the Suitland Federal Center, including the Sunny
Spot Lobby of Federal Office Building 3.
(Agency or Activity) . . .
Dated: . . .
By: (Signature) . . .
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 Federal Labor Relations Authority, Region 3,
whose address is: 1111 - 18th Street, NW, Room 700, P.O. Box 33758,
Washington, DC 20033-0758 and whose telephone number is: (202)
653-8452.