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29 FLRA No. 59

GENERAL SERVICES ADMINISTRATION

                    Respondent

          and

EDWARD HANLON, RUTH SANDERS
AND JAMES MERCURY

                    Charging Parties/Individuals

Case Nos. 3-CA-60243
          3-CA-60245

GENERAL SERVICES ADMINISTRATION

                    Respondent

          and

EDWARD HANLON AND RUTH SANDERS

                    Charging Parties/Individuals

Case No. 3-CA-60246

DECISION AND ORDER

I. Statement of the Case

This consolidated proceeding is before the Authority on exceptions filed by the General Counsel and by Charging Party Hanlon to the attached Decision of the Administrative Law Judge. The Respondent General Services Administration (GSA) did not file an opposition. The complaints in these cases allege and we conclude that GSA unlawfully interfered with the right of the Charging Parties and/or other employees of the Department of Commerce, Bureau of the Census (Census) under the Federal Service Labor - Management Relations Statute (the Statute) to distribute union literature in the Sunny spot lobby, a non-work area, of the Suitland Federal Center (Center), where Census headquarters' employees work. [PAGE]

II. Background

A. The District Court's Decision in NTEU v. Golden

GSA's conduct in this case was based in part on a decision of the U.S. District Court for the District of Columbia in National Treasury Employees Union v. Golden, C.A. No. 85-3881 (Mar. 14, 1986). It is therefore helpful for the consideration of the unfair labor practice cases before us to discuss the court's decision in Golden.

In the latter half of 1985, the National Treasury Employees Union (NTEU) and Edward Hanlon, a Census employee, were denied permission on several occasions by GSA and Census to distribute union-related literature. On December 6, 1985, NTEU and Hanlon filed suit seeking declaratory and injunctive relief for violations of their rights under the Federal Property Management Regulations (FPMRs) and the First and Fifth Amendments to the United States Constitution to disseminate information favorable to NTEU.

On March 14, 1986, the court held that the plaintiffs' purpose in educating employees to NTEU will be fulfilled, and their First Amendment rights will be protected, with reasonable limitations put on their activities. Golden, slip op. at 17. In its conclusions of law, the court noted that the defendants, GSA and Census, had argued to the court that the court lacked jurisdiction in "that the violation of both plaintiffs' rights in this case may constitute unfair labor practices under the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. 7116, and that the Federal Labor Relations Authority (FLRA) has exclusive jurisdiction over the plaintiffs' claims." Golden, slip op. at 9-10. The court, which had found that Hanlon had filed several related unfair labor practice charges with the FLRA, rejected the defendants' argument and found that it had jurisdiction based on the allegations of violations of constitutional rights.

The court also stated (id. at 10) that it "recognize(d) that plaintiff Hanlon, unlike plaintiff NTEU, may have claims against the defendant Census Bureau under the CSRA arising out of the facts of this case. The CSRA guarantees employees the right to 'form, join, or assist any labor organization,' 5 U.S.C. 7102, and makes it an unfair labor practice for an agency to interfere with the exercise of that right, 5 U.S.C. 7116(a)(1). These provisions give Hanlon a right to request a permit to distribute union literature in non-work areas, during non-work times." The court further stated that it was not clear to the court that Hanlon had a right under the CSRA against GSA, because GSA was not his employer, but that [ v29 p2 ] "Hanlon's rights against Census, his employer, under the CSRA are not necessarily co-extensive with his rights as a citizen under the GSA regulations and the Constitution." Golden, slip op. at 10. The court went on to find that because Hanlon's administrative remedy before the FLRA was not an efficacious one to remedy the continuing violation of his First Amendment rights, and because the court "must in any event assume jurisdiction over plaintiff NTEU's claims, it would not be appropriate to dismiss plaintiff Hanlon's almost identical claims." Id.

In its March 14, 1986 order, the court ordered, among other things, that:

Any three representatives of plaintiff NTEU (whether or not employees of the Federal Center) or employees who favor NTEU shall be permitted to distribute literature in the "Sunny Spot" lobby of building three between 11:30 a.m. and 1:30 p.m., subject to the GSA permit process. . . .

The parties are directed to petition the FLRA for relief of any further dispute arising from plaintiffs' actions at the Suitland Federal Center, as the Court is satisfied the parties can receive full and adequate relief from the FLRA. That administrative agency was created by Congress to resolve labor related disputes of this nature.

Golden, Order of March 14, 1986 (emphasis added). 1

B. Facts in this proceeding

On or about March 13, 1986, Hanlon requested permission from Census to distribute union literature in the Sunny Spot lobby, a non-work area, during non-work time on several dates [ v29 p3 ] in March and April. Customs forwarded Hanlon's request to GSA. On March 18 or 19, 1986, GSA received Hanlon's request along with a note from Census attaching the court decision. The note stated: "Court decision . . . limits use of Sunny Spot for distribution of literature between 11:30 a.m. and 1:30 p.m. behind a table. You might want to add to permit." On March 21, GSA issued a permit to Hanlon for that date and 8 future days. Among other things, the permit limited the use of the Sunny Spot lobby to the hours of 11:30 a.m. to 1:30 p.m., based on the court's order. GSA advised Hanlon that in order to use the permit he would have to agree to this limitation. This restriction is the subject matter of Case No. 3-CA-60246.

The permit also required Hanlon to obtain prior approval from the GSA building manager of the material that he intended to distribute. GSA notified Hanlon on March 28 that three particular items he had distributed on March 21 (concerning NTEU's attorney referral program, movie discount program for NTEU members, and Mastercard program for NTEU members) constituted prohibited "commercial advertising" under the FPMRs, and directed him to provide to GSA by noon on April 1, 1986 the items that he intended to distribute on April 2.

Hanlon advised GSA that he had several rights, including those as an employee under the Statute, and should be allowed to distribute the literature throughout the day on non-work time since it was a non-work area. He also contended that GSA lacked authority to require him to request advance approval of items to be distributed. Hanlon did not submit the material to GSA by the time requested. On the morning of April 2, Hanlon advised GSA that he was going to distribute the material that GSA had viewed as prohibited commercial advertising. Observing this distribution by three individuals in the Sunny Spot lobby, GSA initiated the investigation by the Federal Protective Service of April 2 that is the subject matter of Case No. 3-CA-60245 and which is discussed more fully below.

By letter of April 8, GSA prohibited Hanlon from future distribution of the three specified items of union literature, stating that the items were prohibited by the FPMRs. In GSA's view, the items were prohibited because the Mastercard program provided a direct economic benefit to a bank, the movie brochure constituted advertising for several theatres, and the attorney referral program would benefit attorneys practicing in nonemployment related areas. The prohibition on distribution of these three items is the subject matter of Case No. 3-CA-60243. [ v29 p4 ]

III. Case No. 3-CA-60246

A. The Judge's Findings and Conclusions

The Administrative Law Judge rejected GSA's contention that because the Charging Parties are employees of Census, and not of GSA, GSA can not be found to have violated their rights under section 7102 of the Statute. The Judge found that there was a sufficient connection between GSA and the Charging Parties to hold GSA responsible under the Statute if it unlawfully interferes with the employees' rights under the Statute. The Judge further found that although Hanlon had applied for permits pursuant to the FPMRs, GSA was well aware or should have been well aware that Hanlon's requests pertained to a labor-related dispute and that he was asserting rights under the Statute as well as under other applicable laws and regulations.

However, the Judge found that GSA did not violate section 7116(a)(1) of the Statute by limiting distribution of union literature in the Sunny Spot lobby to the hours of 11:30 a.m. and 1:30 p.m. The Judge noted that GSA has, in the past, permitted other groups, including the Boy Scouts, computer companies, American Federation of Government Employees Local 2782, and the Census Credit Union, to distribute literature throughout the day in the Sunny Spot lobby. However, the Judge noted that the Authority has recognized that the likelihood of a disruption of an agency's operations is a relevant consideration in determining whether an agency's prohibition of requested activity constitutes unlawful interference with protected activity in violation of section 7116(a)(1) of the Statute. The Judge found that GSA had limited the hours of distribution consistent with the order of the court which had found, with respect to events occurring in 1985, that GSA and Census could reasonably assume that Hanlon's activities even in non-work areas may be disruptive.

The Judge noted that in a related proceeding, a different Administrative Law Judge had heard evidence concerning the same allegedly disruptive activities of 1985 and had concluded in a decision of August 1, 1986 that those incidents were minor and did not justify the denial of such fundamental rights under the Statute to Census employees. The Judge stated that "(n)o action was taken by the Authority in the interim to petition any district court for appropriate temporary relief pursuant to section 7123(d) of the Statute. Therefore, GSA did not violate the Statute" by limiting the [ v29 p5 ] times of distribution. Judge's Decision, slip op. at 22. The Judge concluded that GSA's limitation was justified and did not unduly interfere with employee rights under the Statute. The Judge therefore recommended dismissal of the complaint.

B. Positions of the Parties

The General Counsel filed exceptions to the Judge's recommended dismissal of the complaint in this case. The General Counsel contended that the parties, issues, and factual situation in Golden were distinguishable from those in this case, and that the Administrative Law Judge erred in concluding that because GSA's actions were consistent with the court's order, they did not violate the Statute. The General Counsel noted, among other things, that the court had considered only the plaintiffs' First Amendment claim and had not attempted to decide any issue concerning the plaintiffs' rights under the Statute; rather, the court had acknowledged that such matters are properly within the Authority's jurisdiction and had specifically directed the parties to petition the FLRA for relief, stating in its order of March 14, 1986 that "the Court is satisfied the parties can receive full and adequate relief from the FLRA."

The General Counsel further argued that the Judge erred in finding that the potential for disruptive action existed, and contended that the record in this case is devoid of any evidence of disruptive activity. Also, the General Counsel took issue with the Judge's reliance on the fact that the Authority did not seek temporary relief pursuant to section 7123(d) of the Statute.

In his exceptions to the Judge's dismissal, Hanlon supported the General Counsel's arguments. Additionally, he noted that in the related cases before another Administrative Law Judge, referenced above, which involved the same facts and incidents as those relied on in this case by GSA to show disruption, the Judge had rejected the "disruption" defense. Hanlon further contended that the Judge in this case was not justified in relying on the District Court's decision to find that there was sufficient disruption to limit employee rights, since the court specifically found with respect to the 1985 incidents before it that there was no actual disruption from employee activity.

C. Discussion

After the Judge issued his decision, we issued our decision in the related cases referenced above. Department [ v29 p6 ] of Commerce, Bureau of the Census, 26 FLRA No. 88 (1987), petition for review filed sub nom. Department of Commerce, Bureau of the Census v. FLRA, No. 87-3845 (4th Cir. June 26, 1987). In that case, we adopted the decision of the Judge and rejected GSA's argument that it owed no duty to Hanlon and other Census employees because they are not employees of GSA. We found that GSA, as well as Census, violated the section 7102 rights of Census employees by restricting their right to distribute literature and solicit union membership in non-work areas at the Center while the employees are on non-work time. In so finding, we noted particularly that GSA and census exercised joint control over Census' space at the Center, including the Sunny Spot lobby.

We further found in Bureau of the census, in agreement with the Judge, that (1) the 1985 incidents of disruption relied on by GSA were not sufficient justification for the limitations imposed in that case; (2) there was no showing that the incidents were provoked by Hanlon or other NTEU supporters; and (3) the District Court's decision in NTEU v. Golden did not warrant a different conclusion. In this latter regard, we noted particularly that the court did not have before it the question of employees' rights under the Statute and that the court had directed the parties to petition the Authority for relief with regard to such rights.

In the instant case, it was clear to GSA, as it was in Bureau of the Census, that Hanlon, a Census employee, was seeking permission to use a non-work area of Census (the Sunny Spot lobby) during non-work time. Hanlon made his request to Census, which forwarded the request to GSA. In these circumstances, GSA was not justified in treating Hanlon's request as anything other than a request by a Census employee for the use of a non-work area of Census. GSA was not justified in applying the FPMRs in such a manner as to interfere with the employee's statutory right to distribute literature. See General Services Administration, 27 FLRA No. 73 (1987), petition for review filed sub nom. Hanlon v. FLRA, No. 87-1363 (D.C. Cir. July 30, 1987).

We find, as did the Judge in this case, and as we found in Bureau of the Census, that GSA and Census exercised joint control over the Sunny Spot lobby in this case. We further find, contrary to the Judge, that GSA was not justified in relying on the District Court's order. As we discussed above and in Bureau of the Census, the court's order addressed only [ v29 p7 ] the First Amendment rights of Hanlon and NTEU; the court did not have before it the question of employee rights under the Statute to the use of non-work areas. We also find, for the reasons stated above and in Bureau of the Census, that the Judge erred in finding that GSA could reasonably assure that Hanlon's activities during the time here involved may disrupt census' operations.

We therefore conclude, noting as did the Judge that in the past Census has not imposed such hourly restrictions on the distribution of literature by Census' employees, that the restrictions placed on Hanlon and other employees in this case were improper. By restricting the rights of Census employees to distribute literature in non-work areas while they are on non-work time, GSA interfered with their section 7102 rights in violation of section 7116(a)(1) of the Statute.

IV. Case No. 3-CA-60243

A. The Judge's Findings and Conclusions

The Judge found that GSA's action in prohibiting Hanlon from distributing three items of union literature because they constituted 'commercial activities' under the FPMRs constituted a violation of section 7116(a)(1) of the Statute. The Judge found that, since Hanlon was asserting rights under the Statute, GSA could be found to have violated the section 7102 rights of Census employees by prohibiting the distribution of the items, unless its action was consistent with some other governing law or regulation. Analyzing the three items, the Judge found that, contrary to GSA's assertions, the items did not constitute commercial activities within the meaning of the FPMRs. He therefore found that GSA's action in prohibiting the distribution of the three items interfered with the employees' section 7l02 rights in violation of section 7116(a)(1) of the Statute.

B. Positions of the Parties

The General Counsel agrees with the Judge's conclusion that GSA violated the Statute, but excepts to the Judge's rationale. The General Counsel argues that a violation should be found, not because the three items in dispute were allowable under the FPMRs, but rather because the employees' right to distribute union literature in non-work areas during non-work times is a well-established right under the Statute. According to the General Counsel, the only exception to this established principle is if the activity constitutes flagrant misconduct beyond the protection of the Statute, and that exception does not apply in this case. [ v29 p8 ]

C. Discussion

We agree with the Judge's conclusion that GSA violated the rights of Census' employees, but for the reasons that follow. We found above that Hanlon and other Census employees were exercising their rights under the Statute to distribute literature in non-work areas while the employees are on non-work time. We further found that GSA was not justified in applying the FPMRs in a manner that unlawfully restricted those rights. The three items of union literature involved explained certain benefits that employees could expect would flow from membership in NTEU. We find that the three items were within the scope of activity protected by section 7102 of the Statute, and were not subject to scrutiny under the FPMRs. We therefore conclude that GSA, by applying the FPMRs so as to prohibit the distribution of the items, interfered with the employees' section 7102 rights in violation of section 7116(a)(1) of the Statute. See GSA, 27 FLRA No. 73.

V. Case No. 3-CA-60245

A. The Judge's Findings and Conclusions

On April 2, after GSA had observed that Census employees were distributing material which included the Mastercard brochure, the attorney referral program, and the movie brochure, GSA contacted Federal Protective Service Sgt. Simms. GSA asked Simms to investigate the distribution of the prohibited brochures and submit an incident report. Simms went to see Charging Party Sanders and explained that his office had a complaint about the distribution of the handbills and needed the names of the people distributing the handbills for his report. Sanders asked why Simms needed the names, and he responded that he did not know exactly why, but there was some problem with the distribution. Sanders gave Simms her name and the names of the other persons who were distributing the material. Simms subsequently prepared an official "Offense/Incident Report" which listed the names of seven Census employees. The report stated that the employees were handing out material for NTEU that did not have the approval of the Building Manager. Distribution of material without the permission of the building manager or his designee is a violation of GSA regulations punishable by a $50 fine or 30 days in jail. No citations were issued in this case. [ v29 p9 ]

The Judge found that GSA's conduct in having Sanders interrogated did not violate the Statute. He noted that the FPMRs required that all items proposed for distribution have the prior approval of GSA, and that the three items of literature had been distributed without the required permission. The Judge found that the interrogation of Sanders was conducted in order to determine the identity of possible violators of GSA's regulations and whether a violation had occurred. He likened this case to cases in which the Authority found that action by an agency to enforce a lawful agency regulation did not reasonably tend to interfere with the section 7102 rights of employees. He therefore recommended dismissal of the complaint in this case.

B. Positions of the Parties

The General Counsel excepted to the Judge's conclusion that the interrogation of Sanders was not a violation of the Statute. The General Counsel argued that there was no legitimate basis for the interrogation because the interrogation regarded matters that were proper and protected by the Statute. According to the General Counsel, interrogation of unit employees regarding their exercise of section 7102 rights is an obvious violation of section 7116(a)(1) since such conduct is inherently coercive and has a chilling effect on the continued exercise of section 7102 rights. The General Counsel contends that "employees would naturally think twice about exercising their statutory right to solicit union membership and distribute union literature in nonwork areas while on nonwork time when they are subject to a police visit and a request for names of those fellow employees who took part in such perfectly legal activities." General Counsel's Exceptions at 7-8.

Hanlon also excepted to the Judge's conclusion. Hanlon noted that Simms had interrogated Sanders about three items of union literature, the distribution of which the Judge had found to be protected under the Statute. Hanlon contends that an open interrogation of an employee, in front of other employees, by an armed guard sent to the employee's work area to question her about the exercise of her clear statutory rights during an organizing campaign is inherently intimidating on the employee being questioned and on other employees Hanlon further contends that in this case the possibility of a fine and imprisonment attached to the investigation by Simms made the interrogation even more coercive. [ v29 p10 ]

C. Discussion

We find, contrary to the Judge, that the action of GSA in the circumstances of this case constituted an unfair labor practice. This case is not like those cited by the Judge. The Authority has found that an agency need not allow an employee to engage in union activity which would also be a breach of a lawful agency regulation. For example, in Defense Property Disposal Region, Ogden, Utah, 24 FLRA No. 66 (1986), we found that it was not unlawful for the agency to observe the union activity of an employee where that activity may also have been a breach of the agency's security regulations.

In this case, if GSA had been justified in applying its regulations so as to prohibit the distribution of the three items of union literature, it could well have had a proper basis for interrogating Sanders about the failure to comply with the regulations. However, as we have found above, in this case Hanlon and other Census employees were exercising their rights under the Statute to distribute union literature, including the three items that prompted the investigation, and GSA was not justified in applying the FPMRs to them in such a manner as to interfere with those rights. Thus, GSA's interrogation of Sanders, taken in order to determine whether employees had violated the FPMRs, was also not justified. We conclude that the actions of GSA reasonably tended to interfere with the section 7102 rights of Census employees to distribute literature in non-work areas during non-work time, and therefore violated section 7116(a)(1) of the Statute.

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor - Management Statute, the General Services Administration shall:

1. Cease and desist from:

(a) Unreasonably restricting Edward Hanlon or other Census Bureau employees from distributing literature on behalf of the National Treasury Employees Union or any other labor organization during non-work times in the Sunny Spot lobby in Federal Office Building 3, a non-work area, or in any other non-work area of the Suitland Federal Center. [ v29 p11 ]

(b) Prohibiting Edward Hanlon or other Census Bureau employees from distributing, at any time when distribution must be allowed, the following union literature: (1) NTEU attorney referral program pamphlet; (2) NTEU movie discount program leaflet; and (3) NTEu Mastercard program pamphlet.

(c) Interfering with, restraining, or coercing Census Bureau employees by conducting interrogations concerning their protected right to distribute literature during non-work times in the Sunny Spot lobby in Federal Office Building 3, a non-work area, or in any other non-work area of the Suitland Federal Center.

(d) In any like or related manner interfering with, restraining, or coercing census Bureau employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Permit Edward Hanlon and other Census Bureau employees to distribute literature on behalf of the National Treasury Employees Union or any other labor organization during non-work times in the Sunny Spot lobby in Federal Office Building 3, a non-work area, or in any other non-work area of the Suitland Federal Center.

(b) Permit Edward Hanlon and other Census Bureau employees to distribute at any time when distribution must be allowed the following union literature: (1) NTEU attorney referral program pamphlet; (2) NTEU movie discount program leaflet; and (3) NTEU Mastercard program pamphlet.

(c) Post at the Suitland Federal Center facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Director, Buildings Management Division, Washington, D.C., and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees of the Bureau of the Census are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. [ v29 p12 ]

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p13 ]

                   NOTICE TO ALL EMPLOYEES
                 OF THE BUREAU OF THE CENSUS
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
              AND TO EFFECTUATE THE POLICIES OF
    THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                  WE HEREBY NOTIFY YOU THAT:

WE WILL NOT unreasonably restrict Edward Hanlon or other Census Bureau employees from distributing literature on behalf of the National Treasury Employees Union or any other labor organization during non-work times in the Sunny Spot lobby in Federal Office Building 3, a non-work area, or in any other non-work area of the Suitland Federal Center.

WE WILL NOT prohibit Edward Hanlon or other Census Bureau employees from distributing, at any time when distribution must be allowed, the following union literature: (1) NTEU attorney referral program pamphlet; (2) NTEU movie discount program leaflet; and (3) NTEU Mastercard program pamphlet.

WE WILL NOT interfere with, restrain, or coerce Census Bureau employees by conducting interrogations concerning their PROTECTED right to distribute literature during non-work times in the Sunny Spot lobby in Federal Office Building 3, a non-work area, or in any other non-work area of the Suitland Federal Center.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce Census Bureau employees in the exercise of their rights assured by the Statute.

WE WILL permit Edward Hanlon and other Census Bureau employees to distribute literature on behalf of the National Treasury Employees Union or any other labor organization during non-work times in the Sunny Spot lobby in Federal Office Building 3, a non-work area, or in any other non-work area of the Suitland Federal Center. [PAGE]

WE WILL permit Edward Hanlon and other Census Bureau employees to distribute at any time when distribution must be allowed the following union literature: (1) NTEU attorney referral program pamphlet; (2) NTEU movie discount program leaflet; and (3) NTEU Mastercard program pamphlet.

                             _________________________________
                                           (Agency)

Dated:__________________ By: _________________________________
                                         (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor (or P.O. Box 33758), Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500. [ v29 p2 ]

GENERAL SERVICES ADMINISTRATION

                  Respondent

        and

    EDWARD HANLON, RUTH SANDERS, AND
    JAMES MERCURY

                  Charging Parties/
                         Individuals

Case Nos. 3-CA-60243
          3-CA-60245

GENERAL SERVICES ADMINISTRATION

                  Respondent

        and

EDWARD HANLON AND RUTH SANDERS

                  Charging Parties/
                         Individuals

Case No. 3-CA-60246

Mary Ann Pachacha, Esquire
Mark C. Ramsey,  Esquire
         For the Respondent

Patricia Eanet Dratch, Esquire
Bruce D. Posenstein, Esquire
         For the General Counsel, FLRA

Before: GARVIN LEE OLIVER
        Administrative Law Judge

DECISION

Statement of the Case

This decision concerns two unfair labor practice complaints issued by the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C. against the General Services Administration (Respondent or GSA). [PAGE]

The complaint in Case Nos. 3-CA-60243 and 3-CA-60245 alleged that on April 2, 1986 Respondent, through its agent, Sergeant R.A. Simms, Federal Protective Service, interrogated Charging Party Sanders as to Sanders' and other Census Bureau employees' activities concerning the distribution of union literature in the Sunny Spot lobby, a non-work area of Building 3 of the Suitland Federal Center, Suitland, Maryland, during non-work time. The complaint also alleged that by memorandum dated April 8, 1986 Respondent, through its agent, Building Manager Carl C. Votteler, prohibited Charging Party Hanlon from distributing at any time the following union literature in the Sunny Spot lobby: (a) NTEU attorney referral program pamphlet; (b) NTEU Mastercard program pamphlet; and (c) NTEU movie discount program flyer. The complaint charged that Respondent, by such acts, interfered with employees in the exercise of rights guaranteed by section 7102 of the Statute in violation of section 7116(a)(1) of the Statute. Respondent's answer denied any violation of the Statute and asserted that the distribution of the articles was prohibited because they constitute commercial advertising under 41 C.F.R. 101-20.308.

The complaint in Case No. 3-CA-60246 alleged that Respondent, by memorandum dated March 21, 1986 and continuing to the date of the complaint (June 26, 1986), prohibited Edward Hanlon and other employees from distributing labor organization related material in a non-work area, the Sunny Spot lobby, during non-work time by limiting said distribution to the hours of 11:30 a.m. to 1:30 p.m. Such acts were also alleged to interfere with rights guaranteed by section 7102 of the Statute in violation of section 7116(a)(1) of the Statute. Respondent's answer denied any violation of the Statute and averred that the distribution between the hours of 11:30 a.m. and 1:30 p.m. was in accordance with an order of the U.S. District Court for the District of Columbia.

A hearing was held in Washington, D.C. at which the cases were consolidated for hearing and decision. The Respondent and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and the General Counsel filed helpful briefs, and the proposed findings have been adopted where found supported by the record as a whole. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. [ v29 p2 ]

Findings of Fact

The Parties

At all times material herein, Respondent GSA has been an agency within the meaning of section 7103(a)(3) of the Statute. At all times material herein, the Charging Parties have been employees within the meaning of section 7103(a)(2) Of the Statute. The Charging Parties are employed in a separate agency, the Bureau of the Census (Census Bureau), at the Suitland Federal Center, Suitland, Maryland. They are not, and have never been, employed by GSA.

At all times material herein, the American Federation of Government Employees, Local 2782, AFL - CIO (AFGE, Local 2782) has been the exclusive representative of employees at the Census Bureau. These cases involve actions taken by the Charging Parties and other bargaining unit employees to solicit membership on behalf of another union, the National Treasury Employees Union (NTEU).

The Suitland Federal Center and Sunny Spot Lobby

The Suitland Federal Center consists of five major office buildings, one of which is Federal Office Building No. 3, and several smaller buildings. The Sunny Spot lobby is a public, non-work area on the lower floor of Federal Office Building (FOB) No. 3. It has a number of corridors and stairwells entering it, contains several vending machines and bulletin boards, and is an area through which Census Bureau employees pass on their way to the cafeteria, convenience store, and bank. Census is the only tenant in FOB No. 3. The record establishes that GSA, as the landlord, has the right to control, inter alia, the Sunny Spot lobby.

GSA's Regulations

General Services Administration has jurisdiction, custody, and control of all public buildings outside of the District of Columbia, including the building involved in this case. 40 U.S.C. 285.

GSA, pursuant to its authority under 40 U.S.C. 486(c), has promulgated rules governing persons entering property under its charge and control. The relevant sections are 41 C.F.R. Subparts 101-20.3 (Conduct on Federal Property) and 101-20.7 (Occasional Use of Public Areas in Public Buildings) governing both assigned and unassigned space. [ v29 p3 ]

41 C.F.R. 101-20.308 generally prohibits "soliciting alms, commercial or political soliciting, and vending of all kinds, displaying or distributing commercial advertising, or collecting private debts on GSA-controlled property." The exceptions to this general prohibition on Federal property relevant to this case are:

(c) solicitation of labor organization membership or dues authorized by occupant agencies under the Civil Service Reform Act of 1978 (Pub. L. 95-454); and (d) lessee, or its agents and employees, with respect to space leased for commercial, cultural, educational, or recreational use under the Public Buildings Cooperative Use Act of 1976 (40 U.S.C. 490(a) (16)). . . . Public areas of GSA-controlled property may be used for other activities permitted in accordance with Subpart 101-20.7.

Section 101-20.309 governs the distribution of handbills on Federal property and provides that "(a)ny 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." Subpart 101-20.7 establishes rules and procedures to be followed in permitting occasional use of public buildings for cultural, educational, and recreational purposes. 41 C.F.R. 101-20.700. The provisions relevant to the instant action concern the issuance of permits and are as follows:

101-20.702 Permits.

(a) Application. Any person or organization desiring to use a public area of a public building or its grounds shall first obtain a permit from the buildings manager. To obtain this permit, a copy, sample, or description of any material or item proposed for distribution or display and a written statement shall be submitted setting forth the following: [ v29 p4 ]

(b) Applicants authority. If the applicant claims to represent an organization, a letter or other documentation is required showing that the applicant has authority to represent that organization.

(d) Failure to complete application. Failure to submit the information required by paragraphs (a), (b), and (c), of this section shall result in denial of a permit.

(e) Filing. Applications shall be filed during regular working hours in the buildings manager's office or such other place as be or she may designate. Application may be submitted by mall or in person.

(f) Permit issuance. A single permit shall be issued within 10 days following receipt of the completed application by the building manager.

(1) Each permit shall authorize the permittee to conduct the activity for the period of time requested; provided that a permit shall not be issued for a period of time in excess of 30 calendar days, unless specifically approved by the regional officer. After the expiration of the permit, a new permit may be issued to the former permit holder upon submission of a new application. In such a case, applicants may be permitted to incorporate by reference any required information or documentation filed with a previous application.

(2) If permits are requested for the same public area for the same time period, the buildings manager will issue permits on a first-come-first served basis.

There are ten grounds set forth in the regulations for disapproval or cancellation of an application for a permit for use of a public area. If the proposed use of a public area: [ v29 p5 ]

(1) Is a commercial activity as defined in 101-20.701(k);

(4) Disrupts the official business of the agency or agencies occupying the public buildings;

(5) Interfere(s) with a tenant's quiet enjoyment of their leasehold.

(10) Is being conducted with a permit issued to an intentionally false or incomplete application. 41 C.F.R. 101-20.703.

Commercial activities are defined in section 101-20.701(k), as follows:

Commercial activities shall mean activities undertaken for the primary purpose of obtaining a profit for the benefit of an individual or organization organized for profit, as opposed to activities whose purpose is the expression of ideas or advocacy of causes, whether of a religious, artistic, political, charitable, educational, or cultural nature, where the commercial aspects involved are incidental to the purpose of the activity. Upon disapproval or cancellation of the permit, the buildings manager must notify the applicant or permittee in writing of the grounds for the decision and inform him or her of the right to appeal the decision to the appropriate regional officer. 41 C.F.R. 101- 20.701(k).

Procedures for obtaining review of the building manager's decision by a regional officer are set forth in section 101-20.704. [ v29 p6 ]

The regulations proscribe certain conduct during the period of an approved use of federal property. 41 C.F.R. 101-20.707(a). Specifically, the permittee shall:

(2) Not distribute any item for which the prior approval of the buildings manager or his or her representative has not been obtained under 101-20. 702(d) . . .;

(3) Not leave leaflets or other material unattended at any place on GSA-controlled property.

At the Census Bureau, requests made by non-employees to use the public areas are submitted to the GSA buildings manager at the Suitland facility. 41 C.F.R. 101-20.705. However, when an employee desires to use space controlled by GSA, it has been the practice for Census Bureau employees to submit the request to an appropriate management official at Census who then submits the request to the buildings manager with a recommendation for approval or disapproval. This practice was instituted to ensure that Census first determines whether the permit conflicts with employee duties or official functions. Census can thereby maintain proper control over its employees and reduce the likelihood of any disruption in the workplace. While GSA normally attempts to comply with whatever recommendation the Census Bureau makes, it is GSA's prerogative to act in such a case and GSA is not bound to follow Census' recommendation if it has some lawful objection to the requested activity.

Census Bureau Authorization

By memorandum to Hanlon dated October 9, 1965, Colleen A. Woodward, labor relations officer, Census Bureau, referred to previous authorizations granted Hanlon "to communicate Section 7102 issues to other Census Bureau bargaining unit employees," including authorization to

Solicit and distribute throughout the day in the Sunny Spot lobby which is the primary thoroughfare for employees in both buildings to the cafeteria, bank, credit union, Sunny Spot lobby, and the tunnel to Building 4. [ v29 p7 ]

Court Order As set out in more detail, infra, on March 14, 1986, the united States District Court for the District of Columbia (District Judge George B. Revercomb) issued an order in a case brought by NTEU and Hanlon against officials of GSA and the Census Bureau 2 which provided, in part, as follows:

2. Any three representatives of plaintiff NTEU (whether or not employees of the Federal Center) or employees who favor NTEU shall be permitted to distribute literature in the "Sunny Spot" lobby of building three between 11:30 a.m. and 1:30 p.m., subject to the G.S.A. permit process. Two of the three persons, however, must remain seated behind a table situated so as not to hinder the ingress or egress of any persons.

Hanlon's Request For Permit

On or about March 13, 1986, Census Bureau employee Hanlon called Paul Bath, the Census Bureau labor relations officer, requesting permission to distribute union literature regarding NTEU and the membership benefits of NTEU throughout the day on March 19-21 and April 2, 8, 9, 14-18, 1986, in the Sunny Spot lobby, a non-work area. In discussing this matter with Bath and Bath's assistant, Laura Buskers, Hanlon explained that he wanted to distribute union literature before work, after work, during lunch time, during rest break periods, and during employee's days off pursuant to the alternative work schedules. Buskers informed Hanlon that she would forward Hanlon's request to Carl Votteler, GSA's building manager, in order to obtain his approval of Hanlon's request.

Carl Votteler assumed responsibility as building manager for the GSA Suitland Federal Center in January 1986 when Walter Woodhead retired. Votteler had previously issued Hanlon a GSA permit on February 14, 1986, to distribute literature outside the entrances to FOB 3 and FOB 4. Votteler had also received, around March 13, 1986, two memoranda from Hanlon requesting to windshield employees' [ v29 p8 ] cars and set up a tripod in the lobbies pursuant to the Statute. Votteler returned these requests, specifically made pursuant to the Statute, to the Census Bureau for appropriate action.

On March 18 or 19, 1986, Votteler received the GSA Form 15B2 permit Hanlon had requested pursuant to GSA's Federal Property Management Regulations together with a note from Diane Farran, facility manager of the Census Bureau. Farran was responsible for recommending Census Bureau approval or disapproval of requested GSA permits by Census employees based on whether the permit posed any conflict with official employee duties or Census functions. As noted, GSA normally attempts to comply with whatever recommendation the Census Bureau makes, although it is not bound to do so if it has a lawful objection to some requested activity. Farran's note attached the March 14, 1986 decision of the United States District Court for the District of Columbia. She remarked, "Court decision . . . limits use of Sunny Spot for distribution of literature between 11:30 a.m. and 1:30 p.m. behind a table. You might want to add to permit."

After conferring with GSA counsel, GSA building manager Votteler decided to issue Hanlon the permit on March 21, 1986, for that date and eight future days. Among other things, he limited use of the space to three Commerce - Census employees who favor NTEU and restricted the hours to 11:30 a.m. to 1:30 p.m. based on the District Court order. He advised Census labor relations officer Paul Bath that he was issuing the permit with the restrictions imposed by the court. He also advised Hanlon that in order to receive the permit he would have to agree to that limitation.

The record reflects that GSA has, in the past, permitted other groups, including the Boy Scouts, computer companies, AFGE, Local 2782, and the Census Credit union, to distribute literature throughout the day in the Sunny Spot lobby. Although Hanlon did not attach the materials he desired to distribute, as required by 41 C.F.R. 101-20.702(a), his permit was conditionally approved contingent upon prior approval of the proposed material by the GSA building manager. This condition was expressly stated in the permit. Hanlon, however, did not submit the requisite items until immediately prior to handing them out.

Distribution occurred on March 21, 1986, but only during the hours of 11:30 a.m. to 1:30 p.m. as provided in the permit. [ v29 p9 ]

Problems With Distribution

Votteler, after conferring with GSA counsel and the GSA district manager, advised Hanlon, by letter dated March 26, 1986, inter alia, that certain of the materials distributed pursuant to the above-mentioned permit were in violation of Respondent's Federal Property Management Regulations. Votteler stated that while the agency had adequate grounds at that time to revoke the permit for the remaining requested dates, Hanlon would be provided an additional opportunity to comply with the regulations. Hanlon was directed to provide a copy of the leaflets and/or a specific description of the items he intended to distribute on April 2, 1986, by 12:00 p.m. on April 1, 1986. Votteler also advised Hanlon orally that the Mastercard brochure, the attorney referral program, and the movie brochure were the prohibited items. Hanlon replied that he had multiple rights, including those as an employee under the Statute, and should be allowed to distribute the literature throughout the day on non-work time as it was a non-work area. He also claimed that GSA did not have the Authority to require him to request advance approval of material to be distributed.

Hanlon failed to submit the material to Votteler by noon of April 1 as requested. At approximately 11:15 a.m. on April 2, Hanlon delivered a note to Votteler's office stating that he was going to hand out the same material that he had handed out previously, including the material that he had been advised was prohibited as constituting commercial solicitation.

Votteler went to the Sunny Spot lobby to determine whether the prohibited literature was being handed out. On his way he met Hanlon in the hallway and asked him whether he intended to distribute the three prohibited items. Hanlon told him that he did, and if Votteler tried to stop him, he would have Votteler held in contempt of court.

Votteler proceeded to the Sunny Spot lobby where three individuals were handing out material which included the Mastercard brochure, the attorney referral program, and the movie brochure. Votteler advised them that they did not have authority under the permit to hand out this particular literature. When they continued to hand out the material, Votteler went back to his office and contacted Sgt. Richard Simms of the Federal Protective Service. The Federal Protective Service provides security for the building. [ v29 p10 ] Votteler asked Sgt. Simms to investigate the distribution of the prohibited brochures and submit an incident report. GSA admits that Simms was an agent of GSA, acting on its behalf at the Suitland Federal Center.

Interrogation of Sanders

Sgt. Simms went to the Sunny Spot lobby and talked to approximately four or five persons there. He asked for their names so he could enter them into his report. One lady gave her name, but the others told him to talk to Ruth Sanders. Sgt. Simms went to Sanders' office, verified her identity, and explained that his office had a complaint about the distribution of the handbills and needed the names of the people distributing the handbills for his report. Sanders asked why Simms needed the names, and he replied that he didn't know exactly why, but there was some problem with the distribution. Sanders gave Sgt. Simms her name and the names of the other persons who were distributing the material. Sanders also requested and received Simms' name, badge number, and commander's name.

Sgt. Simms subsequently prepared an official "Offense/ Incident Report" on April 2, 1986 which listed the names of seven Census Bureau employees. The report stated that the employees "were handing out handbills in the lobby of the . Sunny Spot. The material is for the National Treasury Employees Union . . . Material did not have approval of Building Manager."

Distribution of material without the permission of the building manager or his designee is a violation of GSA regulations punishable by a $50 fine or 30 days in jail. No citations were issued in this case.

Ms. Sanders has distributed other union literature subsequent to April 2, 1986 in the Sunny Spot lobby.

Prohibition on Distributing Three Items

By letter dated April 7, 1986, Votteler advised Hanlon that he continued "to flout GSA's permit process" and was "prohibited from distributing any literature tomorrow unless you receive my prior approval for the specific items distributed." Hanlon replied on April 7, 1986, listing ten items of material he proposed to distribute. He requested a specific response. By letter dated April 8, 1986, Votteler specifically prohibited Hanlon from distributing the following: [ v29 p11 ]

1. Pre-printed pamphlet on the NTEU attorney referral program.

2. Leaflet on NTEU's movie discount program for members.

3. Pre-printed pamphlet on NTEU's Mastercard program for NTEU members.

The letter further stated that:

You are prohibited from distributing these items because they constitute commercial advertising under 41 CFR 101-20.701(k) (see CFR 101-20.308). In addition those materials constitute soliciting of labor organization membership or dues for which you did not receive approval of the occupant agency under 41 CFR 101-20.308 (c).

Mr. Votteler granted Hanlon permission to distribute seven other items of union-related literature.

The pamphlet on the NTEU attorney referral program stated, in part, that NTEU members receive a 30% discount from participating law firms in five legal areas. These areas were highlighted and included wills, estates, and domestic relations matters. The law firms were not listed. Instead, the benefits of the program were described, and it was stated, "To use the program all you need to do is contact your Chapter President."

The NTEU movie discount program leaflet listed five theatre chains along with the "NTEU price." The leaflet stated that the NTEU prices were $1.50 to $2.35 off the regular price of a ticket and that this was "Another member benefit showing that NTEU membership doesn't cost, it pays. Contact your NTEU representative for further information."

The pamphlet on NTEU's Mastercard program stated that membership in NTEU automatically qualified for membership in the plan. NTEU members could apply to National Industrial Bank of Connecticut for a Mastercard or VISA card at 16 1/2% interest. The benefits of the plan were described. NTEU members were to submit an application directly to the bank. [ v29 p12 ] Telephone members were listed for questions about the plan. The pamphlet indicated that a membership application was attached. However, no application was attached to the pamphlet distributed.

Votteler recognized that neither Hanlon nor his associates would make a profit from the distribution, and he had no information that NTEU would profit. Votteler applied the regulation, on the advice of counsel, because he concluded that (1) the Mastercard program provided a direct economic benefit to a bank, (2) the movie brochure constituted advertising for several theaters, and (3) the attorney referral program would basically benefit attorneys practicing in nonemployment related areas.

By letter dated April 18, 1986 to Paul Bath, labor relations office, Bureau of the Census, Hanlon forwarded the GSA letter, the attorney referral leaflet, and Mastercard leaflet and requested that the Census Bureau confirm the fact that it had previously, in the October 9, 1985 memorandum to Hanlon, given Hanlon permission to "solicit and distribute throughout the day in the Sunny Spot lobby and to hand out the above literature under 41 CFR 101-20.308(c)." Hanlon further stated that this reaffirmation of Census Bureau policy was needed to counter Respondent's assertion that Hanlon was acting without approval of the occupant agency in violation of Respondent's regulations. In its April 23, 1986 response to Hanlon, the Census Bureau, through Paul Bath, stated, in part, that:

The Agency has promulgated no new policy for employees on distribution and/or solicitation different from those stated in various memoranda to you including that of October 9, 1985, which you cited. Although I cannot answer for GSA, I presume that limitations on your activity . . . are based on the court order in Civil Action No. 85-3881 . . . .

Bath noted, however, that the NTEU movie discount flyer was not attached to Hanlon's letter.

Shortly thereafter, on April 25, 1986, Hanlon wrote to Votteler regarding Votteler's refusal to allow distribution of union literature in the Sunny Spot lobby at times other than 11:30 a.m. to 1:30 p.m. and the refusal to permit distribution of the NTEU pamphlets on the attorney referral and Mastercard programs as well as the NTEU movie discount flyer. Hanlon contended that distribution of the prohibited [ v29 p13 ] materials did not constitute "commercial activity" and therefore, did not violate the Federal Property Management Regulations. He attached a copy of the Census Bureau's October 9, 1985 memorandum in order to show that he had received the occupant agency's approval of his distribution activity. Again, in an April 29, 1986 letter to Hanlon, Votteler, in pertinent part, denied Hanlon's request to distribute the described literature.

On May 20, 1986, Hanlon was issued a permit to distribute union literature in the Sunny Spot lobby during certain Tuesdays in May. The record further reveals that at all times material herein, distribution of union literature in the Sunny Spot lobby, a non-work area, has been permitted only between 11:30 a.m. and 1:30 p.m. and that distribution of the above noted NTEU pamphlets and flyer has been prohibited.

Related Proceedings

On September 20, 1985 Edward Hanlon filed an unfair labor practice charge against GSA in Case No. 3-CA-50529. On December 19, 1985 the General Counsel of the FLRA, by the Director of Region III, issued a Complaint and Notice of Bearing in Case Nos. 3-CA-50529 consolidating it with Case No. 3-CA-50528 against the Bureau of the Census and alleging that the Bureau of the Census and GSA violated section 7116(a)(1) of the Statute by issuing and maintaining a limited distribution rule concerning union literature. On October 3, 1985, Hanlon filed another charge against GSA in Case No. 3-CA-60017. On December 19, 1985, the General Counsel of FLRA, by the Director of Region 111, issued a Complaint and Notice of Bearing alleging that GSA violated section 7116(a)(1) of the Statute by refusing to permit Hanlon to show a film and set up tables and chairs for the purpose of disseminating union information in a non-work area. Subsequently, these cases and another involving Bureau of the Census, 3-CA-50537, were consolidated for purpose of hearing and decision. A hearing was held before Administrative Law Judge Samuel A. Chaitovitz on February 5, 1986. (ALJ Ex. 1).

Meanwhile, on December 6, 1985, Hanlon and NTEU filed suit in the United States District Court for the District of Columbia against officials of the Census Bureau and GSA (National Treasury Employees Union, et al. v. Terence C. Golden, et al., Civil Action No. 85-3881 (D.D.C.)), seeking declaratory and injunctive relief for alleged violations [ v29 p14 ] of their rights under the Federal Property Management Regulations and the First and Fifth Amendments to the United States Constitution. Specifically, Hanlon and NTEU sought to distribute union-related literature and conduct other activities on the sidewalks in front of the entrances to Federal Office Buildings 3 and 4 at the Suitland Federal Center, in the main lobbies of Federal Buildings 3 and 4, and, in the Sunny Spot lobby and cafeteria in Federal Building 3.

NTEU and Hanlon filed a motion for preliminary injunction with the U.S. District Court. A hearing was held on February 7, 1986. At the hearing, the parties agreed that the court's ruling on the motion, treated as a motion for summary judgment, was ready for final disposition. On March 14, 1986, the court issued its Findings of Fact, Conclusions of Law and an Order. The court noted, in part, that Hanlon had filed several unfair labor practice charges with the Authority and that hearings had been held on the charges. The court stated that it was not at all clear that Hanlon had a right against GSA under the Statute and Hanlon's administrative remedy was not an efficacious one to remedy the continuing violations. The court concluded that a fear of disruption due to inter-union rivalry was sufficient to rationalize restricting plaintiff NTEU actions, but not to completely deny NTEU's requests for permits both inside and outside the buildings. The court also held that "the restriction defendants have imposed on Hanlon were not arbitrary and were justifiable by the asserted grounds that Hanlon's activities would be disruptive. The defendants can reasonably assume Hanlon's activities even in non-work areas may be disruptive on the basis of his pursuit of unfair labor practice complaints, and the fact that he is in disfavor with the incumbent Union." Joint Ex. 1, p. 13. The court had also noted earlier that Hanlon had been involved in an argument with another employee concerning the posting of NTEU literature on a bulletin board in a work area. Joint Ex. 1, p. 8.

The court's order granted, in part, the relief sought by NTEU and Hanlon, as follows:

1. Plaintiffs NTEU, Hanlon and any other persons representing NTEU shall be permitted to distribute union literature on the sidewalks outside the Suitland Federal Center building, between 7:00 and 9:00 a.m. and between 4:00 and 6:00 p.m., subject to the G.S.A. permit process. [ v29 p15 ]

2. Any three representatives of plaintiff NTEU (whether or not employees of the Federal Center) or employees who favor NTEU shall be permitted to distribute literature in the 'Sunny Spot' lobby of building three between 11:30 a.m. and 1:30 p.m., subject to the G.S.A. permit process. Two of the three persons, however, must remain seated behind a table situated so as not to hinder the ingress or egress of any person.

3. The parties are directed to petition the FLRA for relief of any further dispute arising from plaintiff's actions at the Suitland Federal Center, as the Court is satisfied the parties can receive full and adequate relief from the FLRA. That administrative agency was created by Congress to resolve labor related disputes of this nature.

Subsequently, on August 1, 1986, Administrative Law Judge Chaitovitz issued his decision in Department of Commerce, Bureau of the Census, Respondent, and General Services Administration, Respondent, and Edward Hanlon, Charging Party, Case No. 3-CA-50528, 50537, 50529, 60017, (hereinafter Census, GSA, and Hanlon). Among other things, Judge Chaitovitz concluded as follows:

I conclude, in light of the foregoing, that Census' July 18 memorandum, as approved and sanctioned by GSA, interfered with Hanlon's and other employees' rights to solicit membership and distribute literature on behalf of a labor organization, insofar as it forbade such activities during non-work time in the lobbies of FOB3 and FOB4, FOB3 Cafeteria and FOB4 Canteen. Further in so far as the July 18 memorandum limited the solicitation and distribution in the Sunny Spot lobby to one employee at a time, I conclude it constitutes an unreasonable interference and limitation on the employees' rights. In this regard the limitation to one employee is unreasonable in light of the size of the Sunny Spot lobby, the amount of traffic that passes through it, the number of employees that [ v29 p16 ] use it and the other activities that take place in the Sunny Spot lobby. The three incidents involving supporters of NTEU and AFGE were minor, two of the three involved non-employee union representatives on Census property, and were easily controlled. In these circumstances, in the absence of any empirical or experiential evidence, a limit of one employee at a time to distribute Union literature is an unreasonable interference with employees rights hts granted by Section 7102 of the Statute. 3

Judge Chaitovitz concluded that GSA's refusal to permit Hanlon and his associates to distribute literature and solicit membership on behalf of a union in the Sunny Spot lobby, a non-work area, during non-work time violated section 7116(a)(1) of the Statute and was not required by any law. He also concluded, in Case No. 3-CA-60017, that GSA's refusal to grant Hanlon's request to show a film and set up tables and chairs for the purpose of disseminating union information in the Sunny Spot lobby of FOB #3 also violated section 7116(a)(1) of the Statute. Judge Chaitovitz rejected GSA's argument that it owed Hanlon no obligation under the Statute because he was not an employee of GSA and GSA's contention that Hanlon was not seeking to enforce a right under the Statute. He also rejected GSA's argument that disruptions would occur if it granted Hanlon's request. He concluded that the incidents shown in the record "were minor and did not justify the denial of such fundamental rights to Census employees." Judge Chaitovitz recommended that the Authority issue an order requiring GSA to, among other things, permit Hanlon and any other employee of the Bureau of the Census to distribute literature and solicit membership on behalf of NTEU, or any other labor organization, during non-work times in non-work areas of the Suitland Federal Center, including the Sunny Spot lobby. [ v29 p17 ]

Discussion, Conclusions, and Recommendations

Limiting Distribution in the Sunny Spot lobby to 11:30 a.m. to 1:30 p.m. (Case No. 3-CA-60246)

The General Counsel contends that Respondent's refusal to permit Hanlon to exercise his section 7102 rights by distributing literature in a non-work area during non-work times constitute a blatant violation of section 7116(a)(1) of the Statute. The General Counsel asserts that it does not matter that the Charging Parties are not employed by Respondent; that any agency may violate the rights of an employee under section 7102 of the Statute, regardless of whether or not that employee is employed by the agency in question. The General Counsel also argues that Respondent's defense that it was complying with the district court order is without merit. The General Counsel contends that the plaintiffs in that case were NTEU and Hanlon while the present case involves only the rights of employees as the Charging Parties herein are Hanlon and fellow employees. The General Counsel asserts that the district court considered only constitutional rights and did not attempt to decide any issue concerning rights under the Statute. Rather, the court specifically directed the parties "to petition the FLRA for relief of any further dispute." The General Counsel maintains that the district court order permits distribution in the Sunny Spot lobby between 11:30 a.m. and 1:30 p.m., but does not restrict distribution to those hours, and it is up to the Authority to resolve the matter by ensuring the right of employees under the Statute to distribute literature during non-work times in non-work areas. GSA defends on the basis that the Charging Parties have no standing to raise a violation of section 7116(a)(1) against GSA for alleged failure to comply with section 7102 rights. GSA asserts that the Charging Parties are not, and have never been, employees of GSA and there is no actual or potential labor relationship existing between the parties. GSA also contends that since Hanlon made his requests for use of the GSA-controlled space under applicable GSA regulations "as a member of the public," the Authority lacks jurisdiction over the case. Finally, GSA insists that it cannot be found guilty of an unfair labor practice since it was complying with the district court order and its own regulations. GSA notes that District Judge Revercomb concluded that GSA could reasonably assume that Hanlon's activities may be disruptive. GSA also asserts that the Charging Parties have been granted alternative means to reach Census Bureau employees. [ v29 p18 ]

In Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center, 21 FLRA No. 93, 21 FLRA 748 (1986), the Authority set forth. The state of the law concerning the right of employees to distribute literature and engage in solicitation on behalf of a labor organization, as follows:

The Authority has previously held that the right guaranteed employees under section 7102 of the Statute to ". . . form, join, or assist any labor organization . . ." encompasses the right of employees to distribute literature "in non-work areas during non-work time." General Services Administration, 9 FLRA 213 (1982); Internal Revenue Service, North Atlantic Service Center, Andover, Massachusetts, 7 FLRA 596 (1982). The Authority has also determined that the right of employees to engage in solicitation on behalf of a labor organization during non-work time is similarly protected by the Statute, Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base. Oklahoma, 6 FLRA 159 (1981), and that such right may even extend to solicitation in work areas (not here involved) absent any disruption of the Activity's operations or other unusual circumstances. Social Security Administration, 13 FLRA 409.

Section 7116(a)(1) of the Statute provides that "it shall be an unfair labor practice for an agency to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter." The issue presented here is whether an agency other than the agency employing a particular employee may commit violations of section 7116(a)(1) of the Statute if it is found to have unlawfully interfered with the protected rights of an employee other than its own. In Headquarters, Defense Logistics Agency, Washington D.C., et al., 22 FLRA No. 93, 22 FLRA 875, 883-884 (1986), the Authority, in holding that an agency not in the chain of command with the employer at the level of exclusive recognition may be held to violate section 7116(a)(1) if it interferes with the protected rights of employees of another component, stated:

Section 7116(a)(1) of the Statute makes it an unfair labor practice "for an agency . . . to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter(.)" (Emphasis [ v29 p19 ] added.) The term "agency" is defined in section 7103(a)(3) of the Statute as "an Executive agency" (with various inclusions and exclusions not here relevant) and, as relevant here, the term "employee" is defined in section 7103(a)(2) of the Statute as "an individual . . . employed in an agency(.)" A literal reading of these provisions supplies clear support for the conclusion that "an agency" which interferes with, restrains or coerces "any employee" in the exercise of that employee's protected rights commits a violation of section 7116(a)(1) of the Statute, even if the agency's actions are not directed at an employee for which it is the employer at the level of exclusive recognition, as in this case.

I agree with Judge Chaitovitz's statement in Census, GSA, and Hanlon, supra, slip opinion at pp. 17-18:

(W)here an agency has a direct relationship with . . . federal employees who do not work for it, . . . the Statute was meant to protect the rights of (such) Federal employees from interference by such a non-employing agency.

Such a direct relationship by GSA with the Charging Parties is present in this case. Hanlon had been authorized by his employer, the Census Bureau, to, in effect, solicit and distribute union related material pursuant to section 7102 in the Sunny Spot lobby, a public, non-work area contiguous to Census space and a primary thoroughfare for Census employees. While GSA has exclusive control over this public space, it has been influenced by Census' recommendations in the past, and has generally accepted them in the absence of its own lawful objection to the activity under law or regulation. 4 Census recommended GSA approval of a permit to Hanlon, with certain restrictions, in this instance. [ v29 p20 ]

Thus, there is a sufficient nexus between GSA and the Charging Parties to hold GSA responsible under the Statute if it unlawfully interferes with the employees' rights guaranteed by the Statute. In other words, unless GSA was acting consistently with some other governing law or regulation it could not deny a permit designed to enable employees of another agency to exercise their section 7102 rights without violating the Statute. GSA's argument that the Charging Parties have no standing and the Authority has no jurisdiction over the matter is rejected.

Although Hanlon applied for permits pursuant to GSA regulations, GSA was well aware, or should have been well aware, in view of the prior extensive litigation against it, both before the Authority and the district court, as well as from correspondence with Hanlon, that Hanlon's requests pertained to a labor related dispute and he was asserting rights under the Statute as well as other applicable laws and regulations. GSA considered Hanlon's status as an employee as well as Census' recommendation in applying GSA regulations and conferred with Census' labor relations officer before, or at the time of, issuing the permit. In addition, according to District Judge Revercomb's conclusion of law, GSA and Census recognized and specifically asserted in the district court that "the violation of both plaintiffs' rights in this case may constitute unfair labor practices under the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. 7116, and that the Federal Labor Relations Authority (FLRA) has exclusive jurisdiction over the plaintiffs' claims." Although the court concluded that it had jurisdiction based on the allegations of violations of constitutional rights, as part of its order it provided for permits to issue "subject to the G.S.A. permit process" and for the parties to "petition the FLRA for relief of any further dispute rising out of plaintiffs' actions. . . ." That order brings us to the present matter. Accordingly, GSA's arguments that the Authority lacks jurisdiction since Hanlon made his requests for use of GSA-controlled space under applicable GSA regulations and not under the Statute, and any rights he may have under the Statute are not applicable, are without merit.

Turning to whether GSA violated section 7116(a)(1) of the Statute by limiting distribution of union literature in the Sunny Spot lobby to the hours of 11:30 a.m. to 1:30 p.m., a preponderance of the evidence does not establish such a violation. The Authority has recognized that the likelihood of a disruption of an agency's operations or other unusual circumstances are relevant [ v29 p21 ] considerations in determining whether an agency's prohibition of requested activity constitutes unlawful interference with protected activity in violation of section 7116(a)(1) of the Statute. Social Security Administration, 13 FLRA 409, 412 (1983).

The record reflects that GSA limited the hours of distribution based upon the almost contemporaneous order of the district court limiting distribution by employees in the Sunny Spot lobby to the hours between 11:30 a.m. and 1:30 p.m. subject to the GSA permit process. The court recognized that 41 C.F.R. 101-20.703 allows GSA to disapprove or cancel requests for use of public areas where the proposed use would disrupt the official business of the agency occupying the public building. The Public Buildings Cooperative Use Act of 1976 provides that the Administrator of GSA shall "make available, on occasion . . . and on such other terms and conditions as the Administrator deems to be in the public interest . . . lobbies of public buildings , . . that will not disrupt the operation of the building." 40 U.S.C. 490(a)(17). The court concluded from the evidence concerning disruptive activity in 1985 that GSA and Census "can reasonably assume Hanlon's activities even in non-work areas may be disruptive . . . ." While Administrative Law Judge Chaitovitz heard evidence concerning these same alleged disruptive activities and concluded over four months after the district court hearing that "the prior incidents were minor and did not justify the denial of such fundamental rights (under the Statute) to Census employees," his decision was not rendered until August 1, 1986. No action was taken by the Authority in the interim to petition any district court for appropriate temporary relief pursuant to section 7123(d) of the Statute. Therefore, GSA did not violate the Statute by prohibiting Hanlon and other employees from distributing labor organization related material in a non-work area, the Sunny Spot lobby, during non-work time by limiting said distribution to the hours of 11:30 a.m. to 1:30 p.m. during the period covered by the complaint (March 21, 1986 to June 26, 1986). Such action was consistent with the contemporaneous district court order. The court found the potential for disruptive activities. Thus, GSA was justified in applying its governing laws and regulations at this time, and such application did not unduly interfere with employee rights under the Statute.

Interrogation by Sgt. Simms of Charging Party Sanders (Case No. 3-CA-60245)

The General Counsel contends that GSA, by its agent, Federal Protective Officer Simms, violated section [ v29 p22 ] 7116(a)(1) of the Statute by interrogating Charging Party Sanders concerning protected activity. The record reflects that GSA requested Simms to investigate the distribution of three brochures which did not have the prior approval of the building manager as required by GSA regulations and to prepare a report. Simms interrogated Sanders on April 2, 1986 and obtained the names of employees who had engaged in the distribution. He prepared an official report listing the names of these persons. No citations were issued; however, Respondent subsequently specifically prohibited Hanlon from distributing the three items in issue on April 8, 1986.

Under all the circumstances, Respondent's conduct in having Sanders' interrogated was not a violation of the Statute. GSA regulations required that items proposed for distribution have the prior approval of the buildings manager. Failure to have such approval constituted a violation of law. There is no dispute that three items were distributed on two occasions without such permission. The interrogation was conducted in order to determine the identity of possible violators and whether a violation had occurred. The Authority has held that it will not condone any action by an employee, regardless of his union activity or position, which would result in a breach of a lawful agency regulation. Department of Defense, Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia, 16 FLRA 631, 643 (1984) (collecting cases). Under these circumstances, Respondent's interrogation pending the determination of a violation of its regulations or other appropriate action did not reasonably tend to restrain, coerce, or interfere with employees in the exercise of rights guaranteed by section 7102 of the Statute. Defense Property Disposal Region, Ogden, Utah, et al., 24 FLRA No. 66, 24 FLRA 653 (1986) (Surveillance of an employee engaged in protected activities was not a violation of section 7116(a)(1) where such observation was performed pending the determination of a security breach issue); Bureau of Engraving and Printing, 15 FLRA 977 (1984) (Observing and photographing employees engaged in picketing did not, under the circumstances, reasonably tend to interfere with protected activity).

Prohibition on Distributing Three Items of Union Literature (Case No. 3-CA-60243)

The complaint alleges that GSA violated section 7116(a)(1) of the Statute by prohibiting Hanlon from [ v29 p23 ] distributing at any time in the Sunny Spot lobby, a non-work area, three pieces of literature dealing with the NTEU attorney referral program, NTEU Mastercard program, and NTEU movie discount program. The General Counsel argues that the right of employees to distribute literature in a non-work area while on non-work time is a well-established right. The General Counsel contends that the only statutory exception -- that the literature constitutes flagrant misconduct -- is clearly not applicable; no deference is due GSA regulations; and, even if the regulations are applicable, the items did not constitute "commercial solicitation" or "solicitation of labor organization membership or dues without occupant agency approval" as contended by Respondent.

Respondent defends on the basis that since Hanlon was utilizing GSA regulations to obtain permission to distribute literature on GSA-controlled space, any rights which he may have under the Statute are not applicable. Respondent argues, in the alternative, that even if the Statute is applicable, the GSA regulations still apply, and the right of employees to solicit and distribute must be balanced against the employer's right to maintain discipline in its establishment. GSA maintains that it legitimately denied Hanlon's request because permitting him to do so would be a violation of GSA regulations prohibiting commercial solicitation. 5

As discussed above, there is a direct relationship with the Charging Parties by GSA; Hanlon was asserting rights under the Statute; and, unless GSA was acting consistently with some other governing law or regulation, it can be held to have violated section 7116(a)(1) for interference with employee rights as established by a preponderance of the evidence. [ v29 p24 ]

In order to determine whether GSA was acting consistently with law and regulation it is necessary to construe the GSA Federal Property Management Regulations alleged to be applicable to the protected activity. Cf. Department of Health and Human Services, Health Care Financing Administration, 24 FLRA No. 68, 28 FLRA 672 (1986). These regulations provide that a permit for use of a public area may be disapproved or cancelled if the proposed use of a public area is "a commercial activity as defined in 101-20.701(k)," as follows:

(k) "Commercial activities" shall mean activities undertaken for the primary purpose of obtaining a profit for the benefit of an individual or organization organized for profit, as opposed to activities whose purpose is the expression of ideas or advocacy of causes, whether of religious, artistic, political, charitable, educational, or cultural nature, where the commercial aspects involved are incidental to the purpose of the activity.

Respondent argues that the "primary effect" of the programs advertised is to generate revenue for profit-making organizations and, since the profit derived from any ultimate participation in the program "inures to the benefit of non-union related entities such as the National Industrial Bank, movie theatres, and private law firms, advertisements promoting such programs constitute the type of commercial activity proscribed." Respondent points to no previous agency or court decisions interpreting the regulations in this manner.

The regulation itself speaks in terms of whether or not the proposed use of a public area is a commercial activity. According to the regulations, this determination depends on the primary purpose of the activities undertaken.

The record demonstrates that the "activities undertaken" by Hanlon were not "for the primary purpose of obtaining a profit for the benefit of an individual or organization organized for profit," namely the movie theatres, private law firms, and bank mentioned in the literature. Rather, the primary purpose of Hanlon's activity in distributing these three items, along with numerous other material as to which there was no objection, was to solicit membership in NTEU by describing the benefits (cost savings on certain [ v29 p25 ] services) available to members of NTEU. All of the literature indicated that the benefits were for "NTEU members only." Thus, the materials informed employees of benefits available to them should they choose to join NTEU and then, separately, choose to avail themselves of these specific services. These three items of literature, along with numerous others as to which there was no objection, were basic union membership recruitment material. The commercial aspects involved were clearly "incidental to the purpose of the activity."

Respondent's action, through its agent, in prohibiting the distribution of these three items was not consistent with law or regulation. Respondent's action in prohibiting the Charging Parties from distributing these items at any time in the Sunny Spot lobby, a non-work area, interfered with, restrained, and coerced employees in the exercise of their statutory rights guaranteed by section 7102 of the Statute and constituted an unfair labor practice under 7116(a)(1) of the Statute, as alleged.

Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the General Services Administration shall:

1. Cease and desist from:

(a) Prohibiting Edward Hanlon, or any employees of the Bureau of Census, from distributing at any time the following union literature in the Sunny Spot lobby, a non-work area of Building 3 of the Suitland Federal Center, Suitland, Maryland during non-work time: (a) NTEU attorney referral program pamphlet; (b) NTEU Mastercard program pamphlet; and (c) NTEU movie discount program flyer.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute. [ v29 p26 ]

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute.

(a) Upon request and consistent with law and regulation, permit Edward Hanlon and other Bureau of the Census employees, to distribute the following union literature in the Sunny Spot lobby, a non-work area of Building 3 of the Suitland Federal Center, Suitland, Maryland during non-work time: (a) NTEU attorney referral program pamphlet; (b) NTEU Mastercard program pamphlet; and (c) NTEU movie discount program flyer.

(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by a responsible official and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees of Bureau of the Census are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations notify the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C., in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith.

The complaint in Case No. 3-CA-60246, in its entirety, and the consolidated complaint, with respect to Case No. 3-CA-60245, are DISMISSED.

GARVIN LEE OLIVER
Administrative Law Judge

Dated:  March 24, 1987
        Washington, D.C.

[ v29 p27 ]

FOOTNOTES

Footnote 1 The court issued another order on May 28, 1986, rejecting the defendants' motion for reconsideration and clarifying parts of its earlier order. In its order of May 28, the court emphasized that there was no evidence of actual disruption before it, which the defendants had cited as justification for restricting the plaintiffs' activities. On June 8, 1987, the U.S. Court of Appeals for the District of Columbia Circuit reversed the District Court's decision as to Hanlon and dismissed his suit for failure to exhaust his administrative remedies. National Treasury Employees Union v. Golden, No. 85-3881 (D.C. Cir. June 8, 1987). The General Counsel's motion to include a copy of that decision in the record of this case is granted.

Footnote 2 National Treasury Employees Union, et al., v. Terence C. Golden, et al., Civil Action No. 85-3881 (D.D.C).

Footnote 3 In so concluding I am not holding that in other circumstances such a limitation would be unreasonable nor am I holding that, if incidents and disruptions occur when more than one employee engages in distribution of union literature, that an agency can not impose a limitation on the number of employees who can distribute union literature.

Footnote 4 See Department of Health and Human Services Health Care Financing Administration, 24 FLRA No. 68, 24 FLRA 672 (1986), where the Authority held that an agency's control or influence on GSA's control of public space would be a relevant consideration in determining an agency's own liability for an unfair labor practice relating to the use of such space.

Footnote 5 Respondent acknowledges that the building manager also found that the materials constituted solicitation of labor organization membership or dues for which Hanlon had not received occupant agency approval under 41 C.F.R. 101-20.308(c), but it no longer defends on this basis in its brief. The record reflects, and Respondent apparently concedes, that Census had authorized Hanlon "to solicit and distribute throughout the day in the Sunny Spot lobby."

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