[ v24 p672 ]
24:0672(68)CA
The decision of the Authority follows:
24 FLRA No. 68
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, HEALTH CARE
FINANCING ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
and
NATIONAL TREASURY EMPLOYEES UNION
Intervenor
Case No. 3-CA-20319
(18 FLRA No. 59)
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit,
directing the Authority to consider the effect of regulations of the
General Services Administration (GSA) on the resolution of the unfair
labor practice allegation in this case. American Federation of
Government Employees v. FLRA, 793 F.2d 333 (D.C. Cir. 1986).
II. History of the Case
A. The Authority's Decision
The complaint in this case alleges that the Respondent Department of
Health and Human Services, Health Care Financing Administration (HCFA)
violated section 7116(a)(1) and (3) of the Federal Service
Labor-Management Relations Statute (the Statute) by permitting and
failing to take action to prevent representatives of the Intervenor, the
National Treasury Employees Union (NTEU), from soliciting HCFA
employees' signatures in support of a representation petition. The
Charging Party, the American Federation of Government Employees, AFL-CIO
(AFGE) is the exclusive representative of HCFA employees.
On June 13, 1985, the Authority issued its Decision and Order in
Department of Health and Human Services, Health Care Financing
Administration, 18 FLRA No. 59 (1985). The Authority, in agreement with
its Administrative Law Judge, found that HCFA had not unlawfully
assisted NTEU, because the solicitations took place in public areas at
Respondent's Baltimore headquarters not controlled by HCFA. The
Authority further found that HCFA had no affirmative duty to insist or
urge that GSA, which controls such public spaces, forbid or prevent NTEU
from such solicitation. AFGE then sought judicial review of the
Authority's Decision.
B. The Court's Opinion
On June 17, 1986, the court issued its opinion in American Federation
of Government Employees v. FLRA, 793 F.2d 333 (D.C. Cir. 1986). The
court found that in order to make a decision on the merits of the
complaint, the Authority must first determine (1) the extent to which
HCFA has control, or can influence control, over access to the public
areas involved here; and (2) the extent to which, by past practice,
HCFA has participated with GSA in decisions pertaining to access to
these public areas. Further, the court directed that if the Authority
determines that HCFA has any control over those public areas, it must
then determine the nature of HCFA's responsibility in the event it is
also determined that GSA improperly permitted NTEU access to the areas.
The court remanded the case to the Authority for further treatment,
emphasizing that it expressed no view on HCFA's obligations.
III. Positions of the Parties
After the Court remanded the case, we granted GSA's request to file
an amicus curiae brief. Supplemental briefs were filed by AFGE and
NTEU.
GSA contends that under its regulations, GSA alone has control of
public space located within GSA property. GSA explained the limited
circumstances in which a tenant agency has a right to request the use of
such space; that is, an agency may grant permission to a labor
organization to solicit membership or dues under the Civil Service
Reform Act of 1978. The type of activity involved in this case did not,
in GSA's opinion, fall into this category.
NTEU argues that GSA alone controls public space. NTEU acknowledges
that it is unlawful for an agency to provide a rival union with access
to space that is within the control of the agency. It argues, however,
that the public space here was controlled only by GSA, and that GSA has
not only a right to allow unions access to public space, but, upon
proper request, has an obligation under section 101-20.702 of its
regulations to permit access for activities such as NTEU engaged in
here.
AFGE argues that GSA regulations allow agencies to request GSA to
prevent certain activities in public space. It notes that section
101-20.703(a)(4) and (5) allows GSA buildings managers to disapprove an
application for a permit on the grounds that the requested use "disrupts
the official business of the agency or agencies occupying the public
buildings" or "interferes with a tenant's quiet enjoyment of their
leasehold. It argues further that where, as here, NTEU's activity
clearly would have been unlawful if HCFA allowed it, HCFA had an
affirmative obligation to urge GSA to forbid or prevent it. AFGE also
argues that a "new hearing" is needed to determine some of the questions
raised by the court.
IV. Analysis
A. GSA Regulations
The Administrator of GSA has jurisdiction, custody and control of all
Federal buildings outside of the District of Columbia, including the
buildings at issue here. 40 U.S.C. Section 285. Further, GSA has
authority to assign and reassign space of all executive agencies in
Government-owned and leased buildings in and outside of the District of
Columbia. 40 U.S.C. Section 490(e).
Pursuant to that authority, GSA has issued regulations governing the
use of public buildings and grounds, codified at 41 CFR 101-20.3 (1986).
These regulations are commonly posted in public areas and were posted
in the public spaces where HFCA is a tenant at the time of the events in
this case. Section 101-20.308 contains a general prohibition against
solicitation, vending and debt collection. Among the specific
expections to this prohibition is subsection (c), which provides for the
"solicitation of labor organization membership or dues authorized by
occupant agencies under the Civil Service Reform Act of 1978." While
such solicitation appears to be within the control of agencies, not GSA,
that is not the type of solicitation involved in this case. It is
undisputed that NTEU was soliciting only signatures in support of its
efforts to file a petition for election. It was not soliciting
membership or membership dues.
The Public Buildings Cooperative Use Act of 1976 encourages the use
of certain public areas for cultural, educational, and recreational
activities. 40 U.S.C. Section 490(a)(17). Pursuant to authority
granted it by that Act, GSA issued regulations regulating the
"occasional use of public areas in public buildings," codified at 41 CFR
101-20.7. Under section 101-20.702, labor organizations may apply to
GSA for permission to use public areas. The regulations do not specify
what activities are permissible. They do specify that the permission
may be granted only by GSA, not by tenant agencies.
B. Findings
We reaffirm the Authority's previous conclusion that the complaint
must be dismissed. We find that:
(1) GSA has exclusive jurisdiction, custody and control of all public
space in Government-owned and leased buildings. 40 U.S.C. Section 285
and 40 U.S.C. Section 490(e);
(2) GSA's regulations generally governing the use of public space,
codified at 41 CFR 101-20.3, provide for one exception to that
jurisdiction, at section 101-20.308(c): occupant agencies may allow an
exclusive representative of its own employees to solicit membership and
membership dues in public spaces;
(3) the solicitations conducted by NTEU at issue here were not of the
type that could have been allowed or denied by HCFA;
(4) GSA has exclusive jurisdiction under the Public Buildings
Cooperative Use Act of 1976 to grant permits for the use of public
space, and its regulations, codified at 41 CFR 101-20.7, do not allow
for any exceptions to that jurisdiction;
(5) GSA granted permission to NTEU to conduct the solicitations in
question; and
(6) there is nothing in the record to show that HCFA has ever
exercised control over, or influenced GSA's control over, the public
spaces in these buildings.
We find that GSA alone had control over the public spaces in
question, and that HCFA did not have any control over these spaces.
While tenant agencies may bring to GSA's attention activities they find
disruptive to their official business, it is GSA's prerogative to act in
such a case. HCFA did not make any such requests to GSA in this case.
We conclude that HCFA had no affirmative duty to persuade GSA to
prevent or stop the solicitations by NTEU. While a showing of past
control over the spaces, or influence on GSA, by HCFA would be relevant,
the General Counsel has not met the burden of showing that HCFA has
controlled, or influenced GSA's control over, the public spaces in
question. Moreover, such a contention was not part of the General
Counsel's complaint. In these circumstances, we reject AFGE's request
that the case be remanded for further hearing. We therefore find it
unnecessary to determine the nature of HCFA's responsibility if it did
have any control, or right to influence GSA's control, over the public
spaces.
V. Conclusion
Accordingly, having considered the positions of the parties and GSA
and the facts and circumstances of this case in light of our analysis of
GSA's regulations, we reaffirm the Authority's original Order that the
complaint in this case be dismissed.
ORDER
The complaint in Case No. 3-CA-20319 is dismissed.
Issued, Washington, D.C., December 19, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY