[Federal Register Volume 61, Number 101 (Thursday, May 23, 1996)]
[Notices]
[Pages 25871-25872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13043]



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FEDERAL LABOR RELATIONS AUTHORITY


Notice of Oral Argument and Opportunity To Submit Amicus Curiae 
Briefs

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of oral argument and opportunity to submit briefs as 
amici curiae in a proceeding before the Federal Labor Relations 
Authority in which the Authority is required to interpret and apply 5 
U.S.C. 7116(a) (1) and (3).

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SUMMARY: The Federal Labor Relations Authority gives notice that it is 
scheduling oral argument and providing an opportunity, pursuant to 5 
CFR 2429.9 and .26, for all interested persons to submit briefs as 
amici curiae on significant issues arising in a case pending before the 
Authority. The Authority is considering this case pursuant to its 
responsibilities under the Federal Service Labor-Management Relations 
Statute, 5 U.S.C. 7101-7135 (1994) and its regulations set forth at 5 
CFR part 2423 (1996). The proceeding concerns the extent to which an 
agency is obligated to furnish facilities and services, under 5 U.S.C. 
7116(a) (1) and (3), to a labor organization that is seeking to 
represent the agency's employees.

ORAL ARGUMENT: The Authority will hold oral argument at 10:00 a.m. on 
Wednesday, July 10, 1996, in the Second Floor Agenda Room, 607 14th 
Street, NW., Washington, D.C. 20424-0001. Only the parties to the case 
will be provided an opportunity to be heard at oral argument, and 
attendance at the oral argument will be limited because of space 
constraints. Persons interested in attending the oral argument should 
notify the Office of Case Control by 5 p.m. on Friday, July 5, 1996. 
Telephone: FTS or Commercial (202) 482-6540.

BRIEFS: Briefs submitted in response to this notice will be considered 
if received by mail or personal delivery in the Authority's Office of 
Case Control by 5 p.m. on Friday, June 28, 1996. Placing submissions in 
the mail by this deadline will not be sufficient. Extensions of time to 
submit briefs will not be granted.

ADDRESSES: Mail or deliver briefs to James H. Adams, Acting Director, 
Case Control Office, Federal Labor Relations Authority, 607 14th 
Street, NW., Suite 415, Washington, D.C. 20424-0001.

FORMAT: All briefs shall be captioned ``Social Security Administration, 
Baltimore, Maryland, Case No. 3-CA-10859, Amicus Brief'' and shall 
contain separate, numbered headings for each issue discussed. An 
original and four (4) copies of each brief must be submitted, with any 
enclosures, on 8\1/2\ x 11 inch paper. Briefs must include a signed and 
dated statement of service that complies with the Authority's 
regulations showing service of one copy of the brief on all counsel of 
record or other designated representatives. 5 CFR 2429.27 (a) and (c). 
The designated representatives are: Elaine Kaplan, National Treasury 
Employees Union, 901 E Street, NW., Washington, D.C. 20004; Laurence 
Evans, Office of the General Counsel, Federal Labor Relations 
Authority, 1525 22nd Street NW., Suite 400, Washington, D.C. 20037; 
Charles A. Hobbie, American Federation of Government Employees, AFL-
CIO, 80 F Street, NW., Washington, D.C. 20001; and Ed Novak, Social 
Security Administration, West High Rise Building, Room G-I-10, 6401 
Security Boulevard, Baltimore, MD 21235.

FOR FURTHER INFORMATION CONTACT: James H. Adams, Acting Director, Case 
Control Office, Federal Labor Relations Authority, 607 14th Street, 
NW., Suite 415, Washington, D.C. 20424-0001, Telephone: FTS or 
Commercial (202) 482-6540.

SUPPLEMENTARY INFORMATION: The case presenting the issues on which oral 
argument will be heard and amicus briefs are being solicited is before 
the Authority on remand from the United States Court of Appeals for the 
District of Columbia Circuit. The Authority's decision that was 
reviewed by the court is Social Security Administration, 45 FLRA 303 
(1992). The court's decision is NTEU v. FLRA, 986 F.2d 537 (D.C. Cir. 
1993). Copies of these decisions will be provided, upon request, by 
mail or facsimile. However, the following summary is offered.
    Non-employee organizers of the National Treasury Employees Union 
(NTEU) sought a permit from the Social Security Administration (SSA) to 
distribute literature on the public sidewalks of SSA's headquarters 
complex at Woodlawn, Maryland. The headquarters complex, including the 
sidewalks, is the property of the General Services Administration (GSA) 
but, pursuant to a delegation of authority, is managed by SSA. At the 
time of its permit request, NTEU had not filed a petition seeking to 
represent any of SSA's employees at the Woodlawn complex. SSA denied 
the request. NTEU alleged that, by the denial, SSA violated 5 U.S.C. 
7116(a) (1) and (3).
    The Authority determined that SSA, whose employees were exclusively 
represented by the American Federation of Government Employees, did not 
violate either 5 U.S.C. 7116(a)(3) or, in turn, 5 U.S.C. 7116(a)(1), 
when it denied NTEU's request for a permit. Instead, the Authority 
concluded that SSA would have violated 5 U.S.C. 7116(a)(3) if it had 
granted the permit.
    The court found that the Authority's application of section 
7116(a)(3) raised Constitutional concerns. Accordingly, the court 
remanded the case to the Authority to consider whether an alternative 
construction of the Statute can be fashioned that avoids the First 
Amendment implications raised by the Authority's original decision. In 
particular, the court directed the Authority to determine whether the 
sidewalks and other outside areas of SSA's Woodlawn complex constitute 
SSA's ``facilities,'' within the meaning of section 7116(a)(3). 
Following the court's remand, the Authority remanded the case to the 
Regional Director for development of a sufficient record. Social 
Security Administration, 47 FLRA 1376 (1993), reconsideration denied, 
48 FLRA 539 (1993).
    In light of the court's order on remand, the Authority invites 
interested persons to address, inter alia, the following questions. 
Certain of the questions (1-3) are based specifically on the court's 
decision remanding the case. In view of the court's more general 
direction that the Statute be construed to avoid Constitutional 
concerns, question 4 examines whether and how the approach suggested by 
the court would apply to hypothetical cases varying certain facts 
presented in this case. Questions 5 and 6 concern alternative 
approaches to the one suggested by the court to resolve the issues 
present in this case. Questions 7 and 8 pose more general questions 
regarding the correct interpretation of section 7116(a)(3). The last 
question asks how resolution of the issues under section 7116(a)(3) 
affects whether SSA also violated section 7116(a)(1) of the Statute by 
interfering with rights of non-employee organizers to conduct 
organizing activity.
    Interested persons are invited to respond to any or all of the 
following questions:
    1. If the Authority were to conclude, as the court suggests, that 
SSA was not

[[Page 25872]]

acting as an employer but instead was acting as GSA's ``building 
manager'' when it denied NTEU's request for a permit, then what, if 
any, would be the effect of Authority precedent holding that a non-
employer agency can be found to have interfered with protected rights 
on the issue of whether SSA violated the Statute? See Headquarters, 
Defense Logistics Agency, Washington, D.C., 22 FLRA 875, 883-84 (1986).
    2. Is it relevant and, if so, how is it relevant whether non-labor 
organizations have been granted access to the areas for which NTEU 
sought the permit?
    3. Is it relevant and, if so, how is it relevant that the 
``facilities'' to which NTEU sought access were external, quasi-public 
areas?
    4. If GSA were the employing agency at the Woodlawn complex and 
NTEU were seeking a permit for purposes of organizing GSA employees, 
how would the Constitutional concerns identified by the court be 
avoided by the ``facilities'' analysis it suggested?
    5. The Authority, relying on the ruling announced in Department of 
the Army, United States Army Natick Laboratories, Natick, Mass., 3 A/
SLMR 193 (1973) (Natick), has interpreted section 7116(a)(3) as 
prohibiting an agency from allowing a rival union, lacking equivalent 
status to an incumbent labor organization, access to the agency's 
facilities and services. How and why would such access always 
constitute unlawful sponsorship, control, or assistance under section 
7116(a)(3)?
    6. Is the approach used by the predecessor to the Authority, the 
Federal Labor Relations Council, to resolve similar issues under 
Executive Order 11491, as amended, more consistent with the Statute 
than the approach set forth in Natick? The Council's approach analyzed 
whether the agency conduct constituted control of, or interference with 
a union's independence. See Grissom AFB, 6 FLRC 406 (1978).
    7. Is the portion of section 7116(a)(3) that refers to furnishing 
customary and routine services and facilities an exception to the 
prohibition on sponsorship, control, or assistance of a labor 
organization or are there any situations where it creates a requirement 
that such services and facilities be furnished? For example, in order 
to avoid ``sponsoring'' an incumbent labor organization, would an 
agency be required under any circumstances to furnish ordinary 
facilities and services to a rival?
    8. What meaning should be attributed to the phrase ``having 
equivalent status'' in section 7116(a)(3)?
    a. Should this term be applied differently depending upon whether 
the employees in the agency from whom assistance is sought are 
represented by a labor organization?
    b. Does an agency violate section 7116(a)(3) by furnishing, or 
failing to furnish, facilities and services to all nonincumbent labor 
organizations on an impartial basis?
    c. Should the Authority reconsider its precedent that ``a 
petitioning union acquires equivalent status for the purposes of 
section 7116(a)(3) when an appropriate Regional Director determines, 
and notifies the parties, that the petition includes a prima facie 
showing of interest and merits further processing[]''? U.S. Department 
of Defense Dependents School, Panama Region, 44 FLRA 419, 425 (1992).
    9. If the Authority were to conclude on remand that section 
7116(a)(3) did not require SSA to reject NTEU's request for a permit, 
would:
    a. Section 7116(a)(3) require that SSA grant NTEU's permit request?
    b. SSA's denial of the permit to NTEU's non-employee organizers 
violate 5 U.S.C. 7116(a)(1)?
    c. it result in manifest injustice to hold SSA liable for a 
violation of either section 7116(a)(3) or section 7116(a)(1) based on 
approaches not previously articulated?

    Dated: May 20, 1996.

    For the Authority.
James H. Adams,
Acting Director, Case Control Office.
[FR Doc. 96-13043 Filed 5-22-96; 8:45 am]
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