[ v27 p643 ]
27:0643(73)CA
The decision of the Authority follows:
27 FLRA No. 73
GENERAL SERVICES ADMINISTRATION
Respondent
and
EDWARD HANLON, JIM MERCURY
AND RUTH SANDERS
Charging Parties/Individuals
Case No. 3-CA-60344
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists. Briefs for the Authority's consideration
were filed by the Respondent and by the General Counsel.
The complaint alleges that the Respondent, the General Services
Administration (GSA), violated section 7116(a)(1) of the Federal Service
Labor-Management Relations Statute (the Statute) by: (1) maintaining
regulations pertaining to the application procedure for persons or
organizations desiring to use public areas under GSA's control, which
regulations on their face unduly restrict the right of employees under
section 7102 of the Statute to distribute literature on behalf of a
labor organization; and (2) applying these regulations to deny Charging
Party Hanlon and other employees this statutory right.
II. Background
In considering this case, we take official notice of the following
relevant matters:
GSA has exclusive jurisdiction, custody, and control of all public
space in Government-owned and leased buildings. 40 U.S.C. Sections 285
and 490(e). GSA's regulations generally governing the use of public
space are part of the Federal Property Management Regulations (FPMRs),
and are codified at 41 C.F.R. Section 101-20.3. 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). GSA's regulations governing the "occasional use of
public areas in public buildings" are codified at 41 C.F.R. Subpart
101-20.7.
Section 101-20.309 of the FPMR provides that:
Any person or organization proposing to distribute materials in
a public area under this section shall first obtain a permit from
the buildings manager under Subpart 101-20.7 and shall conduct
distribution in accordance with the provisions of Subpart
101-20.7. Failure to comply with those provisions is a violation
of these regulations.
Section 101-20.701(b) defines "public areas" as "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 specifically leased by any lessee of the public building." Section
101-20.702 sets forth the application procedure to be followed by any
person or organization desiring to use a public area. To obtain a
permit, the applicant must submit to the buildings manager "a copy,
sample, or description of any material or item proposed for distribution
or display." 41 C.F.R. Section 101-20.702(a). Subject to appeal, a
permit may be disapproved or cancelled if, among other things, the
proposed use is a "commercial activity." 41 C.F.R. Section
101-20.703(a)(1). Solicitation of union membership or dues authorized
by occupant agencies under the Statute is not considered a commercial
activity. 41 C.F.R. Section 101-20.308(c). Public areas of
GSA-controlled property may be used for other activities permitted in
accordance with Subpart 101-20.7 of the regulations. Id.
III. The Stipulation
The parties stipulated, among other things, that since on or about
March 28, 1986, and continuing to date, GSA has maintained the FPMRs,
codified at 41 C.F.R. Sections 101-20.3 and 101-20.7, pertaining to the
application procedure for persons or organizations desiring to use
public areas under GSA's control for the distribution of literature.
Further, since that time, GSA has required Hanlon and other employees
seeking permission to engage in the distribution of literature on behalf
of a labor organization to comply with these regulations.
IV. Positions of the Parties
The General Counsel contends that the Respondent has violated the
Statute by (1) maintaining regulations which unduly restrict the rights
of employees to distribute literature on behalf of a labor organization,
and (2) requiring Hanlon and other employees who desire to distribute
such literature to comply with those regulations. The General Counsel
argues that employees have an unfettered right to distribute literature
in non-work areas during non-work time, and that the FPMRs, both on
their face and as applied in this case, severely and unreasonably
restrict that right.
GSA contends that it is required by statute to regulate the use of
the public areas of Federal buildings and grounds, and that the
regulations here in question were promulgated to accomplish that duty.
GSA states that the regulations were designed to treat alike all those
who may apply for permits, including Federal employees.
GSA notes that the regulations generally prohibit commercial or
political solicitation, but allow (1) union membership solicitation if
it is authorized by the occupant agency under the Statute, and (2)
solicitation by other groups and individuals if they comply with the
regulations' guidelines for the issuance of permits. GSA states that it
recognizes that employees have basic rights under the Statute to
distribute literature in non-work areas during non-work time. According
to GSA, its regulations are not tantamount to a "no solicitation"
prohibition or rule, but rather set forth a process which permits and
facilitates solicitation. Noting that the regulations in dispute are
for the specific purpose of carrying out the intent of Congress in
passing the Public Buildings Cooperative Use Act, GSA argues that the
regulations are not unlawful on their face. Further, GSA argues that
since there has been no allegation or proof that the FPMRs were applied
disparately or used pretextually to deny statutory rights, requiring
Hanlon and other employees to adhere to the regulations does not
interfere with their rights under the Statute.
V. Analysis and Conclusion
It is well settled that Federal employees have the right under
section 7102 of the Statute to distribute union literature in the
non-work areas of their work locations while they are on non-work time,
and that agency management's interference with that right generally
violates section 7116(a)(1) of the Statute. See Department of Health
and Human Services, Social Security Administration, Southwestern Program
Service Center, 21 FLRA No. 93 (1986); General Services Administration,
9 FLRA 213 (1982); Internal Revenue Service, North Atlantic Service
Center, Andover, Massachusetts, 7 FLRA 596 (1982). It is also well
settled that the right of Federal employees to engage in solicitation on
behalf of a labor organization during non-work time is similarly
protected by the Statute. See Department of Commerce, Bureau of the
Census, 26 FLRA No. 40 (1987) (Census violated the right of Hanlon and
other Census employees to solicit membership on behalf of a union during
non-work time in work areas where there is no disruption of work);
Social Security Administration, 13 FLRA 409 (1983); Oklahoma City Air
Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA 159
(1981).
In this case, we find that GSA has not violated the statutory right
of Hanlon or other Federal employees to distribute literature. GSA has
a statutory duty imposed by the Public Buildings Cooperative Use Act to
regulate the use of public areas of public buildings, and the
regulations here in question were promulgated to implement that Act.
The Act encourages the use of public areas of public buildings. 40
U.S.C. Section 601(a). The stated purpose of the regulations is "to
create rules and procedures to be followed in permitting the occasional
use of public buildings(.)" 41 C.F.R. Section 101-20.700.
The General Counsel argues that GSA committed an unfair labor
practice simply by maintaining these regulations and requiring
applicants who are Federal employees to comply with them. We do not
agree and will not find that these regulations on their face prevent or
unduly restrict the use of public areas by Federal employees so as to
violate their right to distribute literature under section 7102 of the
Statute. Rather, as we have done in similar cases, we will examine
whether any particular application of the regulations constitutes an
unfair labor practice under the Statute. See, for example, Department
of Commerce, Bureau of the Census, 26 FLRA No. 88 (1987), and 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 considering the record before us, we conclude that the General
Counsel has failed to establish by a preponderance of the evidence that
GSA has committed an unfair labor practice. The General Counsel does
not contend, with respect to any particular instance in which GSA
applied its regulations, that GSA committed an unfair labor practice.
Absent such particular instances, we find that the General Counsel's
bare assertions that GSA's regulations are "overly restrictive" and
improperly "onerous" present no basis upon which to make such a finding.
Moreover, it is not alleged or shown that Hanlon was treated
differently from others who have applied for such permits under the
FPMRs, or that GSA's treatment of his applications was a pretext to deny
his right or the right of other Federal employees under section 7102 to
distribute literature. Nor has it been shown that any specific
requirement of the regulations as applied in this case interfered with
such rights. In these circumstances, there has been no showing that GSA
violated the right of the Charging Parties to distribute literature
under section 7102 of the Statute and that GSA violated section
7116(a)(1) of the Statute. Accordingly, the complaint shall be
dismissed.
ORDER
The complaint in Case No. 3-CA-60344 is dismissed.
Issued, Washington, D.C., June 24, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY