National Treasury Employees Union v. Federal Labor Relations Authority

• Decision Date: 11 June 1998
• Docket Number: AFL-CI,I,92-5272 and 92-5307,Nos. 97-1204,s. 97-1204
• Parties: 157 L.R.R.M. (BNA) 2860, 329 U.S.App.D.C. 177 NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees,ntervenor. NATIONAL TREASURY EMPLOYEES UNION, et al., Appellees, v. John CALLAHAN, Acting Administrator, Social Security Administration, et al., Appellants, American Federation of Government Employees, Local 888, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 214

139 F.3d 214

157 L.R.R.M. (BNA) 2860, 329 U.S.App.D.C. 177

NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, AFL-CIO, Intervenor.

NATIONAL TREASURY EMPLOYEES UNION, et al., Appellees, v. John CALLAHAN, Acting Administrator, Social Security

Administration, et al., Appellants,

American Federation of Government Employees, Local 888, Appellant.

Nos. 97-1204, 92-5272 and 92-5307.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 18, 1997.

Decided March 27, 1998.

Rehearing Denied June 11, 1998.

In case No. 97-1204, Elaine D. Kaplan, Washington, DC, argued the cause for petitioner National Treasury Employees Union, with whom Gregory O'Duden, Washington, DC, was on the briefs.

David M. Smith, Solicitor, Federal Labor Relations Authority, Washington, DC, argued the cause for respondent FLRA, with whom James F. Blandford and Shari Polur, Attorneys, Washington, DC, were on the brief. William R. Tobey, Deputy Solicitor, Washington, DC, entered an appearance.

Mark D. Roth and Judith Galat, Washington, DC, were on the brief for intervenor American Federation of Government Employees, AFL-CIO.

In case Nos. 92-5272 and 92-5307, Judith Galat, Washington, DC, argued the cause for appellant American Federation of Government Employees, Local 888, with whom Mark D. Roth, Washington, DC, was on the briefs.

R. Craig Lawrence, Assistant U.S. Attorney, Washington, DC, argued the cause for the Federal appellants, with whom Mary Lou Leary, U.S. Attorney, Washington, DC, at the time the briefs were filed, was on the briefs. John D. Bates, Assistant U.S. Attorney, Washington, DC, entered an appearance.

Elaine D. Kaplan, Washington, DC, argued the cause for appellees National Treasury Employees Union, et al., with whom Gregory O'Duden, Washington, DC, was on the brief. Clinton D. Wolcott, Washington, DC, entered an appearance.

Before: WALD, SILBERMAN, and GINSBURG, Circuit Judges.

GINSBURG, Circuit Judge:

The Social Security Administration several times denied the National Treasury Employees Union a permit to distribute leaflets in front of the SSA buildings on the government campus in Woodlawn, Maryland. The NTEU filed unfair labor practice charges with the Federal Labor Relations Authority, and sued the Administrator of the SSA in district court alleging a violation of the First Amendment to the Constitution of the United States.

In No. 97-1204 the NTEU petitions for review of the decision of the Federal Labor Relations Authority that the permit denials neither discriminated against the NTEU nor unlawfully assisted the incumbent union, the American Federation of Government Employees. We uphold the FLRA's decision that the SSA did not unlawfully assist the AFGE. The FLRA's decision that the SSA did not discriminate against the NTEU, however, was premised upon an erroneous reading of the case law, and we therefore remand that aspect of the case to the FLRA for reconsideration.

In Nos. 92-5272 and 92-5307 the SSA and the AFGE appeal the decision of the district court holding that the SSA's denials of a permit to the NTEU to distribute literature at Woodlawn abridged the NTEU's freedom of speech, in violation of the first amendment. We remand this claim for the district court to determine whether there is still a case or controversy between the parties in light of our decision in No. 97-1204.

I. Background

The controversy among the NTEU, the SSA, and the AFGE began in 1991 when the NTEU, which was organizing a nationwide campaign to replace the AFGE as the exclusive bargaining representative of SSA employees, applied several times for a permit to distribute leaflets outside the SSA buildings on the Woodlawn campus. The SSA denied each request on the ground that the Federal Service Labor-Management Relations Act, 5 U.S.C. § 7116(a)(3), so required. See, e.g., Letter to Clinton Wolcott, Assistant Counsel, NTEU, from Marilyn G. O'Connell, Acting Associate Commissioner for Facilities Management, SSA (Sept. 24, 1991) (stating that "the agency in 'control' of the premises must deny access to the nonincumbent union absent an inability to reach the agency's employees through reasonable, alternative means of communication"). Section § 7116(a)(3) makes it an unfair labor practice for an agency to

sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status.

The Act also makes it an unfair labor practice to "interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this [statute]." Id. § 7116(a)(1).

The NTEU sued the Administrator of the SSA and other officials in district court, claiming that the SSA's denials of its applications for a permit violated the Union's right to free speech under the first amendment. The district court held that the SSA had indeed violated the first amendment by denying to the NTEU the right to speak in a "public forum," see NTEU v. King, 798 F.Supp. 780 (D.D.C.1992), and the SSA appealed to this court.

The NTEU also filed a charge with the FLRA claiming that the SSA's denial of its applications for a permit was an unfair labor practice. The FLRA held that the SSA had acted correctly under the circumstances for two reasons. First, the SSA's refusal to issue a permit did not violate § 7116(a)(1) of the FSLMRA because that subsection protects only the rights of employees; it does not give a nonincumbent union any right of access to the property of the employing agency, at least where the complainant is not an affected employee. Second, to have issued a permit, according to the FLRA, would have "assisted" the NTEU, in violation of § 7116(a)(3) of the Act. See Social Security Administration and National Treasury Employees Union and American Federation of Government Employees, 45 FLRA 303 (1992).

Upon the NTEU's petition for review of the decision of the FLRA, we held that the Authority had erred in failing to consider the first amendment implications of its decision and we remanded the matter to the Authority for reconsideration. See NTEU v. FLRA, 986 F.2d 537 (D.C.Cir.1993). We then held the SSA's appeal of the district court's decision in abeyance pending the outcome of the proceedings upon remand before the FLRA.

Upon remand the FLRA took as its starting point the analytical framework set out by the Supreme Court in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), for dealing with the union access issue as it arose under the National Labor Relations Act. See Social Security Administration and National Treasury Employees Union and American Federation of Government Employees, 52 FLRA 1159, at 29-30 (1997). The FLRA recognized that the initial organizing campaigns generally analyzed in Babcock & Wilcox and "its progeny" did not match the facts of the current case; purportedly applying the principles of Babcock & Wilcox, however, the FLRA held that the SSA's denials of the NTEU's permit requests did not violate § 7116(a)(1) of the FSLMRA because the NTEU failed to show that such denials discriminated against the NTEU. The Authority also held that the SSA had not, by denying the permit requests of the NTEU, assisted the AFGE in violation of § 7116(a)(3). The NTEU now petitions the court to review both aspects of that decision.

II. No. 97-1204

The NTEU does not challenge the Authority's adoption of the Babcock & Wilcox framework. The Union does argue, however, that under that framework the SSA should be held to have discriminated against the NTEU and to have unlawfully assisted the incumbent AFGE.

A. § 7116(a)(1)

After stating that it was adopting the framework of Babcock & Wilcox and its progeny "as a starting point" for analysis, see 52 FLRA 1159, at 27, the FLRA described that framework as follows: In Babcock & Wilcox the Supreme Court held that an employer subject to the NLRA may maintain a general policy of denying non-employee solicitors access to its premises; it may not discriminate against union solicitors, however, by granting access to solicitors for other types of organizations. See 351 U.S. at 112, 76 S.Ct. at 684. The excluded "union has the burden of showing that ... the employer's access rules discriminate against the union's solicitation." NLRB v. Southern Maryland Hospital Center, 916 F.2d 932, 936 (4th Cir.1990) (quoting Sears Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 205, 98 S.Ct. 1745, 1761-62, 56 L.Ed.2d 209 (1978)).

The National Labor Relations Board has created, and this court has approved, an exception to the general rule of Babcock & Wilcox for "isolated beneficent acts": An employer that has a no-solicitation rule but nonetheless grants access to a few charitable organizations does not thereby lose its right to exclude unions under its general rule against solicitation. See Lucile Salter Packard Children's Hosp. v. NLRB, 97 F.3d 583, 587 (D.C.Cir.1996); Hammary Mfg. Corp., 265 NLRB 57, 57 n. 4 (1982). In deciding whether grants of access to charitable organizations fall within the "isolated beneficent acts" exception, the Board does not employ a per se approach but rather looks at the "quantum of ... incidents." Hammary, 265 NLRB at 57 n. 4.

Stating that "[t]he NLRB's interpretation and application of Babcock's nondiscrimination rule has been reviewed by several United States Courts of Appeals," the FLRA then cited without analysis certain conflicting decisions applying Babcock & Wilcox. 52 FLRA 1159, at 28. From this descriptive exercise (or at least after it) the FLRA concluded that "[t]he principles articulated in the [cited] decisions suggest that '[b]y inviting the public to use an area of its property, the employer does not surrender...