Natl Treas Empl v. FLRA ( 1998 )


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  •                         United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued September 18, 1997                  Decided March 27, 1998
    No. 97-1204
    National Treasury Employees Union,
    Petitioner
    v.
    Federal Labor Relations Authority,
    Respondent
    American Federation of Government Employees, AFL-CIO,
    Intervenor
    On Petition for Review of an Order of the
    Federal Labor Relations Authority
    ----------
    No. 92-5272
    National Treasury Employees Union, et al.,
    Appellees
    v.
    John Callahan, Acting Administrator, Social Security
    Administration, et al.,
    Appellants
    American Federation of Government Employees, Local 888,
    Appellant
    Consolidated with
    No. 92-5307
    Appeals from the United States District Court
    for the District of Columbia
    (No. 91cv02404)
    In case No. 97-1204, Elaine D. Kaplan argued the cause
    for petitioner National Treasury Employees Union, with
    whom Gregory O'Duden was on the briefs.
    David M. Smith, Solicitor, Federal Labor Relations Au-
    thority, argued the cause for respondent FLRA, with whom
    James F. Blandford and Shari Polur, Attorneys, were on the
    brief.  William R. Tobey, Deputy Solicitor, entered an ap-
    pearance.
    Mark D. Roth and Judith Galat were on the brief for
    intervenor American Federation of Government Employees,
    AFL-CIO.
    In case Nos. 92-5272 and 92-5307, Judith Galat argued the
    cause for appellant American Federation of Government Em-
    ployees, Local 888, with whom Mark D. Roth was on the
    briefs.
    R. Craig Lawrence, Assistant U.S. Attorney, argued the
    cause for the Federal appellants, with whom Mary Lou
    Leary, U.S. Attorney at the time the briefs were filed, was on
    the briefs.  John D. Bates, Assistant U.S. Attorney, entered
    an appearance.
    Elaine D. Kaplan argued the cause for appellees National
    Treasury Employees Union, et al., with whom Gregory O'Du-
    den was on the brief.  Clinton D. Wolcott entered an appear-
    ance.
    Before:  Wald, Silberman, and Ginsburg, Circuit Judges.
    Opinion for the Court filed by Circuit Judge Ginsburg.
    Ginsburg, Circuit Judge:  The Social Security Administra-
    tion several times denied the National Treasury Employees
    Union a permit to distribute leaflets in front of the SSA
    buildings on the government campus in Woodlawn, Maryland.
    The NTEU filed unfair labor practice charges with the Fed-
    eral Labor Relations Authority, and sued the Administrator
    of the SSA in district court alleging a violation of the First
    Amendment to the Constitution of the United States.
    In No. 97-1204 the NTEU petitions for review of the
    decision of the Federal Labor Relations Authority that the
    permit denials neither discriminated against the NTEU nor
    unlawfully assisted the incumbent union, the American Fed-
    eration of Government Employees.  We uphold the FLRA's
    decision that the SSA did not unlawfully assist the AFGE.
    The FLRA's decision that the SSA did not discriminate
    against the NTEU, however, was premised upon an errone-
    ous reading of the case law, and we therefore remand that
    aspect of the case to the FLRA for reconsideration.
    In Nos. 92-5272 and 92-5307 the SSA and the AFGE
    appeal the decision of the district court holding that the SSA's
    denials of a permit to the NTEU to distribute literature at
    Woodlawn abridged the NTEU's freedom of speech, in viola-
    tion of the first amendment.  We remand this claim for the
    district court to determine whether there is still a case or
    controversy between the parties in light of our decision in No.
    97-1204.
    I. Background
    The controversy among the NTEU, the SSA, and the
    AFGE began in 1991 when the NTEU, which was organizing
    a nationwide campaign to replace the AFGE as the exclusive
    bargaining representative of SSA employees, applied several
    times for a permit to distribute leaflets outside the SSA
    buildings on the Woodlawn campus.  The SSA denied each
    request on the ground that the Federal Service Labor-
    Management Relations Act, 5 U.S.C. s 7116(a)(3), so re-
    quired.  See, e.g., Letter to Clinton Wolcott, Assistant Coun-
    sel, NTEU, from Marilyn G. O'Connell, Acting Associate
    Commissioner for Facilities Management, SSA (Sept. 24,
    1991) (stating that "the agency in 'control' of the premises
    must deny access to the nonincumbent union absent an
    inability to reach the agency's employees through reasonable,
    alternative means of communication").  Section s 7116(a)(3)
    makes it an unfair labor practice for an agency to
    sponsor, control, or otherwise assist any labor organiza-
    tion, other than to furnish, upon request, customary and
    routine services and facilities if the services and facilities
    are also furnished on an impartial basis to other labor
    organizations having equivalent status.
    The Act also makes it an unfair labor practice to "interfere
    with, restrain, or coerce any employee in the exercise by the
    employee of any right under this [statute]."  Id. s 7116(a)(1).
    The NTEU sued the Administrator of the SSA and other
    officials in district court, claiming that the SSA's denials of its
    applications for a permit violated the Union's right to free
    speech under the first amendment.  The district court held
    that the SSA had indeed violated the first amendment by
    denying to the NTEU the right to speak in a "public forum,"
    see NTEU v. King, 
    798 F. Supp. 780
     (D.D.C. 1992), and the
    SSA appealed to this court.
    The NTEU also filed a charge with the FLRA claiming
    that the SSA's denial of its applications for a permit was an
    unfair labor practice.  The FLRA held that the SSA had
    acted correctly under the circumstances for two reasons.
    First, the SSA's refusal to issue a permit did not violate
    s 7116(a)(1) of the FSLMRA because that subsection pro-
    tects only the rights of employees;  it does not give a non-
    incumbent union any right of access to the property of the
    employing agency, at least where the complainant is not an
    affected employee.  Second, to have issued a permit, accord-
    ing to the FLRA, would have "assisted" the NTEU, in
    violation of s 7116(a)(3) of the Act.  See Social Security
    Administration and National Treasury Employees Union
    and American Federation of Government Employees, 45
    FLRA 303 (1992).
    Upon the NTEU's petition for review of the decision of the
    FLRA, we held that the Authority had erred in failing to
    consider the first amendment implications of its decision and
    we remanded the matter to the Authority for reconsideration.
    See NTEU v. FLRA, 
    986 F.2d 537
     (D.C. D.C. 1993).  We then
    held the SSA's appeal of the district court's decision in
    abeyance pending the outcome of the proceedings upon re-
    mand before the FLRA.
    Upon remand the FLRA took as its starting point the
    analytical framework set out by the Supreme Court in NLRB
    v. Babcock & Wilcox Co., 
    351 U.S. 105
     (1952), for dealing with
    the union access issue as it arose under the National Labor
    Relations Act.  See Social Security Administration and Na-
    tional Treasury Employees Union and American Federation
    of Government Employees, 52 FLRA 1159, at 29-30 (1997).
    The FLRA recognized that the initial organizing campaigns
    generally analyzed in Babcock & Wilcox and "its progeny" did
    not match the facts of the current case;  purportedly applying
    the principles of Babcock & Wilcox, however, the FLRA held
    that the SSA's denials of the NTEU's permit requests did not
    violate s 7116(a)(1) of the FSLMRA because the NTEU
    failed to show that such denials discriminated against the
    NTEU.  The Authority also held that the SSA had not, by
    denying the permit requests of the NTEU, assisted the
    AFGE in violation of s 7116(a)(3).  The NTEU now petitions
    the court to review both aspects of that decision.
    II. No. 97-1204
    The NTEU does not challenge the Authority's adoption of
    the Babcock & Wilcox framework.  The Union does argue,
    however, that under that framework the SSA should be held
    to have discriminated against the NTEU and to have unlaw-
    fully assisted the incumbent AFGE.
    A. s 7116(a)(1)
    After stating that it was adopting the framework of Bab-
    cock & Wilcox and its progeny "as a starting point" for
    analysis, see 52 FLRA 1159, at 27, the FLRA described that
    framework as follows:  In Babcock & Wilcox the Supreme
    Court held that an employer subject to the NLRA may
    maintain a general policy of denying non-employee solicitors
    access to its premises;  it may not discriminate against union
    solicitors, however, by granting access to solicitors for other
    types of organizations.  See 351 U.S. at 112.  The excluded
    "union has the burden of showing that ... the employer's
    access rules discriminate against the union's solicitation."
    NLRB v. Southern Maryland Hospital Center, 
    916 F.2d 932
    ,
    936 (D.C. Cir. 1990) (quoting Sears Roebuck & Co. v. San
    Diego County District Council of Carpenters, 
    436 U.S. 180
    ,
    205 (1978)).
    The National Labor Relations Board has created, and this
    court has approved, an exception to the general rule of
    Babcock & Wilcox for "isolated beneficent acts":  An employ-
    er that has a no-solicitation rule but nonetheless grants access
    to a few charitable organizations does not thereby lose its
    right to exclude unions under its general rule against solicita-
    tion.  See Lucile Salter Packard Children's Hosp. v. NLRB,
    
    97 F.3d 583
    , 587 (D.C. Cir. 1996);  Hammary Mfg. Corp., 
    265 NLRB 57
    , 57 n.4 (1982).  In deciding whether grants of
    access to charitable organizations fall within the "isolated
    beneficent acts" exception, the Board does not employ a per
    se approach but rather looks at the "quantum of ... inci-
    dents."  Hammary, 265 NLRB at 57 n.4.
    Stating that "[t]he NLRB's interpretation and application
    of Babcock's nondiscrimination rule has been reviewed by
    several United States Courts of Appeals," the FLRA then
    cited without analysis certain conflicting decisions applying
    Babcock & Wilcox.  52 FLRA 1159, at 28.  From this de-
    scriptive exercise (or at least after it) the FLRA concluded
    that "[t]he principles articulated in the [cited] decisions sug-
    gest that '[b]y inviting the public to use an area of its
    property, the employer does not surrender its right to control
    the uses to which that area is put.' "  
    Id.
     (quoting Baptist
    Medical System v. NLRB, 
    876 F.2d 661
    , 664 (8th Cir. 1989).
    Turning to the facts of this case, the Authority said there
    could be "no doubt that SSA has differentiated among the
    organizations that it has allowed to solicit";  specifically, while
    denying the NTEU's requests for permits, the SSA had
    granted permits to several "beneficent organizations" to soli-
    cit money or membership--including the Disabled American
    Veterans, the American Legion, the Little Sisters of the Poor,
    and Mothers Against Drunk Driving.  52 FLRA 1159, at 30.
    The FLRA found, however:
    [T]he record is silent as to whether any other [i.e., non-
    beneficent] organizations have sought, been granted, or
    been denied access to SSA's premises.
    ... Moreover, the parties' arguments do not address
    whether the number of permits granted during the time
    period have been isolated and limited to a small number
    of beneficent organizations....  As a result, we do not
    find that SSA's denial of access to NTEU, which oc-
    curred during the same time period that it granted
    occasional access to charitable organizations, violated the
    Babcock non-discrimination rule.
    
    Id.
    The NTEU argues that upon the present facts the FLRA
    erred in finding no violation of the general rule of Babcock &
    Wilcox.  We agree.  Under that rule, the SSA's denial of the
    NTEU's permit request while granting permits to other
    organizations would be unlawful discrimination unless the
    exception for isolated beneficent acts (or some other excep-
    tion) applies.  The predicate for the rule is lacking here,
    however:  the SSA does not have a general no-solicitation
    policy.  To the contrary, the agency administers its permit
    process pursuant to the Federal Property Management Regu-
    lations, by authority delegated from its landlord, the General
    Services Administration.  The FPMR states that every appli-
    cation for a permit must be granted unless it is faulty in form
    or the proposed use falls into one of five specifically excluded
    categories.  See 41 C.F.R. s 101-20.402(a) ("A permit shall be
    issued ... within 10 working days following [the administer-
    ing agency's] receipt of the completed applications");  
    id.
    s 101- 20.403(a) (the agency "shall disapprove any application
    ... if" the proposed use is commercial, obscene, intended to
    influence judicial proceedings, interferes with government
    uses of the property, or violates the prohibition against
    political solicitation in 18 U.S.C. s 607).
    Because the SSA does not have a general no-solicitation
    policy, Babcock & Wilcox and its sequelae do not protect the
    SSA's denial of permits to the NTEU.  Moreover, even if the
    SSA did have a general no-solicitation policy, we would have
    to fault the Authority for applying the isolated beneficent acts
    exception without examining the "quantum ... of incidents"
    in which the SSA granted permits to beneficent organizations,
    as it should have done before finding that the SSA's prior
    "beneficent acts" were indeed "isolated."  To the extent that
    the FLRA relies upon Babcock & Wilcox and "its progeny,"
    therefore, the Authority's interpretation of the case law is
    erroneous and we must reverse its decision based thereon.
    Our analysis does not end here because the FLRA was not
    required to adopt the rule of Babcock & Wilcox in the first
    place;  nor, having done so, was it required to adopt the
    NLRB's exception for isolated beneficent acts.  It is possible
    that the Authority intended, by its summary statement of the
    case law secondary to Babcock & Wilcox, to articulate its own
    standard under the FSLMRA, one more deferential to the
    federal agency employer than is the standard of Babcock &
    Wilcox to private employers.  (Recall that the Authority had
    concluded that the cases "suggest that by inviting the public
    to use an area of its property, the employer does not surren-
    der the right to control the use to which that area is put.")
    Such a standard might, for example, permit an agency em-
    ployer to exclude union solicitors from its premises while
    allowing all (or almost all) manner of other groups to engage
    in solicitation pursuant to the FPMR.  To the extent that the
    FLRA may have intended to create any such new standard,
    however, that standard raises a serious constitutional ques-
    tion, as we have previously pointed out in this very litigation,
    see NTEU v. FLRA, 
    986 F.2d 537
    , 539-40 (D.C. Cir. 1993);  it
    also lacks any grounding in the cases cited, and the Authority
    neither described it clearly enough nor explained its reason-
    ing sufficiently to permit us to affirm its decision upon that
    basis.  See SEC v. Chenery Corp., 
    318 U.S. 80
    , 88 (1943)
    (holding that reviewing court may not affirm agency decision
    on basis of rationale agency itself did not adopt).
    The FLRA also held, as an alternative basis for its conclu-
    sion, that even if the SSA did discriminate against the NTEU
    the Authority would not apply the standard of Babcock &
    Wilcox retroactively to the actions of the SSA.  Rather, the
    Authority would judge the SSA under the standard in place
    when the SSA denied the NTEU's applications for a permit to
    distribute leaflets.  See 52 FLRA 1159, at 31 n.25.  The
    NTEU objects that the FLRA's concern with retroactivity is
    misplaced because the Union seeks only forward-looking re-
    lief, and in any case retroactive application of the new rule
    would be permissible under the case law of this circuit.
    We agree with the NTEU that the Authority's concern with
    retroactivity is unwarranted.  If the Authority does conclude
    upon remand that the SSA engaged in an unfair labor prac-
    tice, then the SSA will not be unfairly imposed upon by the
    relief to which the NTEU would be entitled.  A declaration to
    the effect that an employer committed an unfair labor prac-
    tice, when based upon a newly-adopted standard, is indeed
    retroactive but only in the way familiar to private sector labor
    law and indeed inherent in both administrative and common
    law adjudication.  See, e.g., Consolidated Freightways v.
    NLRB, 
    892 F.2d 1052
    , 1058 (D.C. Cir. 1989) ("new rules
    announced in agency adjudications may be applied retroac-
    tively absent any 'manifest injustice' ");  Daily News of Los
    Angeles v. NLRB, 
    73 F.3d 406
     (D.C. Cir. 1996) (upholding
    NLRB decision finding newspaper liable for unfair labor
    practice by overruling prior Board decision);  13A Wright,
    Miller & Cooper, Federal Practice and Procedure:  Jurisdic-
    tion 2d s 3535 n.20 ("[o]rdinarily the litigants in the case
    producing a new rule of law are controlled by the new rule").
    Indeed, the SSA does not even face potential liability for
    backpay or other material relief to which employers in both
    the public and the private sector are routinely exposed upon
    the basis of "retroactive" adjudication.  To the extent that the
    FLRA, upon further reconsideration, adheres to the standard
    of Babcock & Wilcox, therefore, it may not decline to find a
    violation merely because it had not yet adopted that standard
    when the SSA denied the NTEU's requests for permits.
    In sum, we remand to the FLRA the question whether the
    SSA violated s 7116(a)(1);  the Authority may either reaffirm
    its embrace of the Babcock & Wilcox standard and hold that
    the SSA discriminated against the NTEU in violation of that
    section, or it may adopt some other standard by which to
    judge the SSA's denial of permits to the NTEU.  If the SSA
    violated the Act under whatever standard the FLRA adopts,
    however, then the Authority may not deny the NTEU a
    remedy on the ground that it must avoid retroactive law-
    making.
    B. s 7116(a)(3)
    The FLRA also held that the SSA's denial of permits to the
    NTEU did not violate s 7116(a)(3), which makes it an unfair
    labor practice for an employee to assist a labor union.  Ac-
    cording to the Authority "there are certain advantages that
    go with incumbency," and "denial of access to a rival, in and
    of itself, does not equate to sponsorship, control, or assistance
    to the incumbent";  nor was there any evidence that the SSA
    had "sponsor[ed], control[led], or assist[ed] AFGE" in any
    other way.  52 FLRA 1159, at 23.  The NTEU objects that
    the AFGE did benefit--in the form of enhanced prospects for
    re-election--from the disadvantage the NTEU incurred in
    being denied access to the grounds of the SSA, and because
    the denials of the permits were unlawful, the advantage
    gained by the AFGE was a fortiori unlawful assistance.
    The FLRA approached this issue, reasonably we think, by
    asking the functional question whether the employer "inter-
    fered with employee freedom of choice by failing to maintain
    the appropriate arms-length relationship with the labor orga-
    nization involved."  52 FLRA 1159, at 22.  Answering the
    question by reference to the totality of the circumstances, the
    Authority concluded that the advantage the SSA indirectly
    conferred upon the incumbent AFGE--by excluding the rival
    NTEU from the agency's premises--did not constitute assis-
    tance, sponsorship, or control within the meaning of those
    terms in s 7116(a)(3):
    [T]here is no evidence that through this denial of access
    SSA interfered with its employees' freedom of choice or
    failed to maintain the proper arms-length relationship
    with AFGE....  [T]here is no evidence that AFGE is
    ... controlled by SSA....  Nor is there evidence that
    the denial was viewed by the employees as indicative of
    the agency favoring AFGE.
    52 FLRA 1159, at 23.
    In this context "evidence" includes not only empirical data
    but also the Authority's expert judgment on the question
    whether the employer's conduct tends to interfere with the
    employees' freedom of choice.  Cf. NLRB v. Curtin Matheson
    Scientific, Inc., 
    494 U.S. 775
    , 792-93 (1990) (finding it not
    irrational for NLRB to refuse to apply presumption that
    replacement workers do not support striking union, in light of
    Board's assumptions drawn from its expertise);  General
    Electric Company v. NLRB, 
    117 F.3d 627
    , 636 (D.C. Cir.
    1997) (enforcing Board decision that distribution of post-
    election benefits while objections to election were still unre-
    solved was impermissible attempt to interfere with employ-
    ees' freedom of choice about unionization).  We therefore
    affirm the Authority's interpretation of the record upon the
    ground that the Authority, in the exercise of its expert
    judgment, found no reason to believe that the employer failed
    to maintain the appropriate arms-length relationship with the
    AFGE.  Consequently, we need not determine whether, as
    the FLRA seems to have believed, the AFGE was entitled to
    the advantage of exclusive access to the sidewalks as a benefit
    of incumbency.
    III. Nos. 92-5272 and 92-5307
    The first amendment claim in the AFGE's appeal from the
    decision of the district court, which we have heretofore held
    in abeyance, may now be moot by virtue of the FLRA's
    change of position in the unfair labor practice case.  The
    FLRA's current position constitutes a retreat--without objec-
    tion on the part of the AFGE--from the position the Authori-
    ty took in its first decision, namely, that the FSLMRA
    required the SSA to deny the permit request of a non-
    incumbent union.  Assuming the FLRA adheres to the
    framework of Babcock & Wilcox upon remand, therefore, the
    SSA will not be able to deny on that ground any future
    permit application the NTEU may file.  Indeed, the SSA may
    well have to grant the NTEU's next request for a permit--in
    which case there would seem to be no continuing controversy
    and no need for the court to resolve the constitutional ques-
    tion.
    Moreover, even if the SSA does again deny a permit to the
    NTEU, it will presumably do so in a manner consistent with
    the FLRA's new interpretation of the Act.  Any such denial
    would therefore have to depend upon a rationale different
    from the SSA's reason for denying the NTEU's permit in
    1991.  To decide now whether a hypothetical future permit
    denial by the SSA would violate the first amendment would
    be to risk giving an advisory opinion in an area where the
    court should be particularly keen to avoid any unnecessary
    ruling.  See Clinton v. Jones, 
    117 S. Ct. 1636
    , 1642 n.11 (1997)
    ("It has long been the Court's considered practice not to
    decide abstract, hypothetical or contingent questions ... or to
    decide any constitutional question in advance of the necessity
    for its decision....").
    In sum, the constitutional issue arising from the permit
    denials of 1991 may be moot as a practical matter.  See
    Belton v. Washington Metropolitan Area Transit Authority,
    
    20 F.3d 1197
    , 1203 (1994) (decision to require retrial based
    upon one issue makes other issue "moot as a practical matter
    although not in the strict sense").  The issue of mootness was
    not briefed by the parties, however, and the record before us
    is stale inasmuch as the FLRA has redefined, and may yet
    further redefine, the obligations of the SSA under the
    FSLMRA.  We therefore remand this case for the district
    court to determine in the first instance, upon the basis of an
    updated record if that seems advisable, whether there is a
    live constitutional case or controversy between the parties.
    IV. Conclusion
    In No. 97-1204 the FLRA permissibly concluded that the
    SSA's denial of a permit to the NTEU did not "assist" the
    AFGE in violation of s 7116(a)(3) of the FSLMRA.  On the
    other hand, the Authority's conclusion that the SSA did not
    discriminate against the NTEU in violation of s 7116(a)(1) of
    the FSLMRA is based upon an erroneous reading of the
    Babcock & Wilcox line of cases.  We therefore affirm the
    decision of the FLRA upon the first issue and remand the
    second issue to the Authority for further consideration.  We
    also remand the first amendment cases, Nos. 92-5272 and
    92-5307, to the district court for a determination of whether
    that dispute is (or with the issuance of the opinion in No.
    97-1204 is about to become) moot.
    So ordered.