Department of Health and Human Services, Health Care Financing Administration and American Federation of Government Employees and National Treasury Employees Union (Authority decision, December 19, 1986)

Final FLRA decision. On court remand, the Authority again dismisses a complaint alleging that HCFA improperly allowed a rival union to solicit employee signatures in public building space. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NTEU solicited signatures for a representation petition in public areas of a Baltimore building housing the Health Care Financing Administration, whose employees AFGE represented. AFGE argued that HCFA unlawfully assisted NTEU by allowing the solicitation or failing to stop it. A court returned the case for review of GSA's rules and HCFA's control over the space. The Authority found that GSA alone controlled the public areas and had authorized NTEU's activity; the record did not show HCFA control or influence. It again dismissed the complaint.

Decision snapshot

• Authority: Alleged assistance to a rival union under 5 U.S.C. § 7116(a)(1) and (3); GSA public space rules.
• Outcome: Complaint dismissed on remand.
• Key point: HCFA had no demonstrated control over the public space or affirmative duty to persuade GSA to stop the solicitation.

Full text (FLRA public release)

[ 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