Social Security Administration and National Treasury Employees Union and American Federation of Government Employees (Authority decision, September 21, 1993)

FLRA remand decision. The Authority denies reconsideration of its order returning this unfair labor practice case for further fact finding. The underlying dispute remains unresolved. This order does not start a final judicial review period under 5 U.S.C. § 7123(a).

Plain-English summary

NTEU challenged the Social Security Administration's refusal to let it distribute leaflets in public areas of the Woodlawn complex, where AFGE also had an interest in the dispute. The Authority had sent the case back to a Regional Director because the agreed record did not establish whether the outside public areas were SSA's premises or facilities under the federal labor statute. NTEU asked the Authority to reconsider, arguing that the existing record was enough to decide the legal question. The Authority found that more facts were needed about public access and SSA's control of those areas. It denied reconsideration, leaving the fact finding remand in place.

Decision snapshot

• Authority: Reconsideration under 5 C.F.R. § 2429.17; agency assistance under 5 U.S.C. § 7116(a)(3).
• Outcome: Reconsideration denied; the earlier remand for more facts remains in effect.
• Key point: Public access to an agency complex does not by itself settle whether an area is the agency's premises or facilities under section 7116(a)(3).

Full text (FLRA public release)

[ v48 p539 ]
48:0539(51)CA

The decision of the Authority follows:

48 FLRA No. 51

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

(Respondent/Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party/NTEU)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Intervenor/AFGE)

3-CA-10859

(45 FLRA 303 (1992))

(47 FLRA 1376 (1993))

_____

ORDER DENYING MOTION FOR RECONSIDERATION

September 21, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on the Charging Party's motion for reconsideration of our decision in 47 FLRA 1376 (1993). No response was filed to the Charging Party's motion.

For the following reasons, we conclude that the Charging Party has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Charging Party's motion for reconsideration.

II. The Decision in 47 FLRA 1376

In 47 FLRA 1376, we found that pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. FLRA, 986 F.2d 537 (D.C. Cir. 1993) (NTEU v. FLRA), the Authority was required to determine whether the public areas of Respondent SSA's Woodlawn complex are SSA's premises or facilities for the purposes of section 7116(a)(3) of the Statute. We further found that we were unable to make that determination on the basis of the stipulated record in this case. Accordingly, we remanded this case to the Regional Director for further processing so that a sufficient record may be developed upon which the Authority could make a determination in accordance with the court's remand.(1)

III. The Charging Party's Motion for Reconsideration

The Charging Party requests that we reconsider our decision to remand this case to the Regional Director for further processing and that we set a briefing schedule to allow the parties to address the issue on remand on the basis of the existing record.

The Charging Party contends that "the existing record provides ample basis for addressing the legal issue before the Authority" because "it shows that the areas at issue are 'public areas' under GSA [General Services Administration] regulations and that SSA is required by a delegation agreement with GSA to follow those regulations in deciding whether to grant NTEU a permit to distribute leaflets." Motion for Reconsideration at 2. The Charging Party asserts that it is "unaware of any further facts . . . that would assist the Authority in deciding the issue" on remand. Id.

The Charging Party states that its "argument in this case is that public areas subject to applicable GSA regulations, do not, as a matter of law, constitute SSA's 'premises' or 'facilities,' because those areas are open to any member of the public for purposes of leafletting and other expressive activities." Id. at 3. The Charging Party further states that it "will argue that SSA's 'premises' or 'facilities' include only those areas in which it would have the authority to prevent members of the general public from leafletting . . . ." Id. The Charging Party maintains that as all of the facts necessary to resolve the issues in this case are already contained in the Joint Stipulation entered into by the parties and the accompanying exhibits, the Authority should reconsider its decision to remand this case. In the alternative, the Charging Party states that "the Authority should specify in what respects the present record is deficient to give the parties guidance on remand." Id.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. For the following reasons, we conclude that the Charging Party has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 47 FLRA 1376.

The Authority found in 47 FLRA 1376 that the stipulated record was insufficient to address the issue of whether the outside public areas of Respondent SSA's Woodlawn complex at issue in this case are SSA's premises or facilities for the purposes of section 7116(a)(3) of the Statute. The areas of the Woodlawn complex at issue in this case and in American Federation of Government Employees v. FLRA, 793 F.2d 333 (D.C. Cir. 1986) (AFGE I) are public areas under applicable GSA regulations. See Stipulation, paragraph 22; AFGE I, 793 F.2d at 335. They are also non-work areas. See Charging Party's Response Brief at 2; AFGE I, 793 F.2d at 335.

The Charging Party argues that public areas subject to applicable GSA regulations do not, as a matter of law, constitute SSA's premises or facilities for the purposes of section 7116(a)(3) of the Statute. However, this argument was rejected by the court in NTEU v. FLRA. In this regard, the court found in NTEU v. FLRA that the Charging Party's "claim that . . .
[section] 7116(a)(3) should not be applied to non-work areas" was "effectively foreclosed by [the court's] decision" in AFGE I. NTEU v. FLRA, 986 F.2d at 540. The court noted that in AFGE I it found that "'counsel for FLRA properly conceded at oral argument that, but for the question of GSA involvement, there would be no doubt that permitting NTEU into the building in question (whether or not into the actual work areas) would constitute unlawful assistance'" under section 7116(a)(3) of the Statute. Id. (quoting AFGE I, 793 F.2d at 337).(2) By finding in AFGE I that, in certain circumstances, section 7116(a)(3) would preclude an agency from permitting a rival union lacking equivalent status into certain public areas of the Woodlawn complex, the court necessarily was concluding that those public areas could constitute the agency's premises or facilities for the purposes of section 7116(a)(3).

Because the court concluded that the public areas at issue in AFGE I could constitute the agency's premises or facilities for the purposes of section 7116(a)(3), more information on the public areas at issue in this case is needed for the Authority to determine whether the public areas at issue in this case constitute SSA's premises or facilities for the purposes of section 7116(a)(3) of the Statute. Specifically, more information is needed on whether, or to what extent, there are distinctions among the various public areas of the Woodlawn complex. Such information may include, among other things: (1) the extent to which the public's access to the public areas in this case differs from the public's access to the public areas of the Woodlawn complex involved in AFGE I; (2) whether public access to the areas in this case exceeds access provided by GSA regulations, that is, whether the public uses or gains access to the outside public areas in the same way as it does to, for example, Lafayette Park (see Charging Party's Response Brief at 7 n.4); (3) whether SSA exercises the same control over the outside public areas at issue in this case as it does over interior public areas of the Woodlawn complex; and (4) the extent to which the public in fact uses the outside public areas at Woodlawn in ways different from the ways it uses the interior public areas. The parties may expand the factual inquiries to include any other information that would assist the Authority in determining whether the outside public areas of the Woodlawn complex constitute SSA's premises or facilities for the purposes of section 7116(a)(3) of the Statute.

As the information necessary to resolve this case involves the resolution of factual issues that the Authority cannot make on the basis of the existing stipulated record, we reject the Charging Party's assertion that the Authority may resolve the issue on remand on the basis of the existing stipulated record. Accordingly, we conclude that the Charging Party has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 47 FLRA 1376.

V. Order

The Charging Party's motion for reconsideration of the Authority's Decision and Order in 47 FLRA 1376 is denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. In view of our decision to remand
   the case to the Regional Director, we denied the Charging Party's motion for leave to file a brief with the Authority addressing the issues on remand.

2. As the public areas in this case and
   in AFGE I are non-work areas, it is clear that the phrase "non-work areas" used by the court in NTEU v. FLRA refers to the public areas of the Woodlawn complex at issue in the instant case and the phrase "whether or not into the actual work areas" used by the court in AFGE I encompasses the public areas of the Woodlawn complex at issue in that case.