American Federation of Government Employees, AFL-CIO v. Federal Labor Relations Authority, AFL-CI

• Decision Date: 04 March 1988
• Docket Number: AFL-CI,No. 87-1083,P,87-1083
• Citation: 840 F.2d 947
• Parties: 127 L.R.R.M. (BNA) 3001, 268 U.S.App.D.C. 240 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,etitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. National Treasury Employees Union, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 947

840 F.2d 947

127 L.R.R.M. (BNA) 3001, 268 U.S.App.D.C. 240

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent National Treasury Employees Union, Intervenor.

No. 87-1083.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 17, 1987.

Decided March 4, 1988.

Petition for Review of an Order of the Federal Labor Relations authority.

Martin R. Cohen, with whom Mark D. Roth was on the brief for petitioner. Joe Goldberg and Charles A. Hobbie, Washington, D.C., also entered appearances for petitioner.

Arthur A. Horowitz, Associate Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., and William E. Persina, Deputy Sol., Federal Labor Relations Authority were on the brief for respondent. Robert J. Englehart, Washington, D.C., Attorney, Federal Labor Relations Authority also entered an appearance for respondent.

Elaine D. Kaplan, with whom Lois G. Williams, Washington, D.C., was on the brief for intervenor, Nat. Treasury Employees Union.

Before ROBINSON and WILLIAMS, Circuit Judges, and GORDON ^*, Senior District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

Dissenting opinion filed by Senior District Judge GORDON.

WILLIAMS, Circuit Judge:

A provision of the Federal Sector Labor-Management Relations Statute ("FSLMRS" or the "Statute"), 5 U.S.C. Secs. 7101-7135 (1982), provides that a government agency commits an unfair labor practice if it "sponsor[s], control[s], or otherwise assist[s] any labor organization," unless the assistance is "customary and routine" and also furnished to "other labor organizations having equivalent status." 5 U.S.C. Sec. 7116(a)(3). ¹ All agree that this provision has essentially the meaning of its predecessor (Sec. 19(a)(3) of Executive Order No. 11,491), ² and that an agency commits an unfair labor practice if it provides access to or use of its facilities to a union lacking status "equivalent" to that of an incumbent union. Here we deal with an agency's obligations in public areas adjacent to its workplace. The American Federation of Government Employees ("AFGE") contends that the Health Care Financing Administration ("HCFA") should have excluded representatives of a rival union from such areas and that its failure to do so was an unfair labor practice. The Federal Labor Relations Authority ("FLRA" or "Authority") concluded otherwise.

We find the FLRA's position correct. The relevant General Services Administration ("GSA") regulations did not give HCFA authority to exclude the rival union's representatives from the adjacent public areas in the building; the Authority's finding that HCFA did not in fact exercise control over the areas was supported by substantial evidence. We further agree with the Authority that Sec. 7116(a)(3) does not impose an affirmative duty on an agency to attempt to persuade its government landlord, the GSA, to exclude a rival union from public areas of the building.

I. BACKGROUND

This case arose out of the efforts of the National Treasury Employees Union ("NTEU") to obtain signatures on a petition calling for a representation election among HCFA employees at government office buildings in Baltimore. HCFA's offices there are located in a complex that includes two connected buildings called the East High Rise and East Low Rise. Although the agency occupies the majority of the space in the two buildings, the Social Security Administration also leases office space on two floors of the East Low Rise. Both buildings are owned and operated by the GSA. HCFA leases its space from GSA and pays a Standard Level Users Charge (known by the unappealing acronym "SLUC"). The agency pays no SLUC for the buildings' common or public areas--their lobbies and hallways and the cafeteria located in the East Low Rise. In these areas the public is granted unrestricted ingress and egress. An occupant agency may also use these areas for certain limited purposes with GSA permission.

AFGE has been the exclusive representative of certain classes of HCFA employees in Baltimore and Washington since 1980. In November 1981, however, NTEU representatives informed William Holman, HCFA's Director of Labor Relations, that NTEU intended to solicit signatures from HCFA employees at the Baltimore complex with the goal of forcing a representation election between AFGE and NTEU. Holman told the NTEU representatives that HCFA could not allow NTEU access to HCFA-leased space, but indicated (in response to NTEU's inquiry) that certain other areas in the building were considered public areas. NTEU did not request, and Holman did not grant, HCFA's permission to solicit signatures in the public areas.

NTEU began its efforts at the complex in late November 1981 outside the entrances of the buildings occupied by HCFA. Soon representatives of NTEU took their mission indoors, distributing literature and soliciting signatures in the first floor lobby and the ground floor hallways of the East Low Rise. Sometime during December, Holman accosted an NTEU representative in a public area of the building and asked whether GSA had granted the union permission to solicit there. The representative responded that permission had been granted; testimony in the record indicates that GSA indeed gave permission, though not (so far as appears) in the form of a written permit. NTEU's campaign in the public areas continued until the Christmas holiday.

Not surprisingly, the AFGE local resisted. Throughout December its representatives asked Holman to deny NTEU access to the premises. But Holman replied that he could do nothing; he had been told by Richard Rohde, HCFA's liaison with GSA, that HCFA had no control over the public areas. Although the GSA employee in charge of the East Low Rise and East High Rise buildings "waivered [sic] a little bit" as to HCFA's power to bar NTEU representatives, his superior, the GSA area manager, backed Rohde's statement.

In early January 1982 NTEU indicated that it intended to renew its efforts at the complex. Holman requested a two-week moratorium on solicitation in order to determine once and for all whether HCFA had authority to keep NTEU out of the public areas of the buildings. NTEU held off for a time, but then again told Holman that it intended to resume its activities in the East High Rise and East Low Rise Holman replied that his investigation had revealed that HCFA had no authority to exclude NTEU. On four separate occasions in late January and February 1982, NTEU representatives solicited employee signatures.

On February 4, 1982 AFGE filed unfair labor practice charges with the Authority, alleging that the HCFA had committed an unfair labor practice under 5 U.S.C. Sec. 7116(a)(3) by permitting or failing to prevent these solicitations. The Authority's General Counsel issued a complaint against the HCFA. Following a hearing, the Administrative Law Judge concluded that HCFA had no control over the public areas and recommended that the Authority dismiss the charges against the agency. Department of Health and Human Services, Health Care Financing Administration, 18 FLRA 429, 436 (1983). The Authority adopted the ALJ's findings of fact and conclusions and dismissed the complaint. Department of Health and Human Services, Health Care Financing Administration, 18 FLRA 427 (1983).

AFGE appealed the Authority's decision to this court. We remanded to the Authority, holding that the FLRA needed to consider whether the GSA's Federal Property Management Regulations ("FPMRs"), 41 C.F.R. Sec. 101-1.00 et seq. (1986), ³ conferred authority on HCFA to forbid NTEU's solicitation, and to determine "the extent to which, under past practice, the occupant agency has actively participated in decisions pertaining to use of the so-called public areas." AFGE v. FLRA, 793 F.2d 333, 336 (D.C.Cir.1986) ("AFGE I ").

On remand, the FLRA reaffirmed its earlier decision. Department of Health and Human Services, Health Care Financing Administration, 24 FLRA 672 (1986) ("Decision on Remand "). Relying on an amicus brief filed by the GSA, the Authority determined that the applicable GSA regulations did not give any authority to HCFA to allow or forbid NTEU access to the public areas. Id. at 675. It found that NTEU's permission to solicit signatures in the public areas came from GSA. Id. at 676. Second, the FLRA found nothing in the record to indicate that HCFA had ever exercised de facto control over the lobbies, hallways, or cafeteria in the past. Id. Finally, the Authority concluded that Sec. 7116(a)(3) did not impose an affirmative duty on the HCFA to attempt to persuade the GSA to prevent the solicitations by NTEU. Id. AFGE appeals again.

An extended line of precedents under Sec. 7116(a)(3) and its predecessor establish that an agency commits an unfair labor practice if it provides access to or use of its facilities to a union without "equivalent status." The Authority, or its predecessor, the Assistant Secretary for Labor-Management Relations ("A/SLMR"), has found an unfair labor practice when an agency provides space on its premises for a union without exclusive status to conduct an organizational campaign, Department of the Army, U.S. Army Natick Laboratories, Natick, Massachusetts, 2 A/SLMR 193 (1973), when it allows a union to solicit membership during duty hours in a unit exclusively represented by another union, Commissary, Fort Meade, Department of the Army, 7 A/SLMR 130 (1977), when it permits a rival union to use management's half of a locked bulletin board, United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982), rev'd on other grounds, United States Department of Justice v. FLRA, 727 F.2d 481 (5th Cir.1984), when it provides display tables for a union to solicit membership, Defense Supply Agency, Defense Contract Administration Services Region, SF, Burlingame, California, 2 A/SLMR 106 (1973); or when it...