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NATIONAL TREASURY EMPLES. UNION v. KING

July 24, 1992

NATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs,
v.
GWENDOLYN S. KING, et al., Defendants, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Defendant-Intervenors.



The opinion of the court was delivered by: JOYCE HENS GREEN

 "The danger of allowing the government to suppress speech is shown in the case now before [the Court]. A grant of plenary power allows the government to tilt the dialogue heard by the public, to exclude many, more marginal voices." International Society for Krishna Consciousness, Inc. v. Lee, 120 L. Ed. 2d 541, 60 U.S.L.W. 4749, 4758, 112 S. Ct. 2701 (June 26, 1992) (Kennedy, J., concurring in the judgment).

 On September 24, 1991, plaintiffs National Treasury Employees Union ("NTEU"), Lendia Johnson ("Johnson"), an organizer for NTEU, and Mark Nenninger ("Nenninger"), an employee of the Social Security Administration ("SSA"), initiated this action against Gwendolyn S. King, Administrator of SSA, Louis Sullivan, Secretary of the Department of Health and Human Services ("HHS"), and Richard Austin, Commissioner of the General Services Administration ("GSA"), (collectively, "federal defendants"), seeking to secure the right to distribute leaflets to employees of SSA on sidewalks outside the entrances to the agency's headquarters in Woodlawn, Maryland.

 On October 7, 1991, plaintiffs filed a motion for a preliminary injunction ("PI"), and on October 11, 1991, plaintiffs filed a motion for a temporary restraining order ("TRO") to require defendants to allow plaintiffs to leaflet at SSA's headquarters while their motion for a PI was pending. On October 16, 1991, in opposition to plaintiffs' motions, defendants filed a motion to dismiss or, in the alternative, for summary judgment. The Court held a hearing on the parties' motions on October 21, 1991.

 That same date, the Court issued a decision, holding that plaintiffs must exhaust their administrative remedies and proceed, as an initial matter, before the Federal Labor Relations Authority ("FLRA"). On March 31, 1992, the Court of Appeals for the District of Columbia Circuit upheld this Court's exhaustion analysis and further ordered "that the action be maintained on [the District Court's] docket, for a period of three months from the date this opinion issues, i.e., until June 30, 1992, or until the FLRA reaches a final decision in the NTEU's unfair labor practice proceeding at an earlier date." National Treasury Employees Union v. King, 961 F.2d 240, 245 (D.C. Cir. 1992) ("NTEU v. King "). The Court of Appeals also noted that "if by the June date the FLRA has not acted on the unfair labor practice, the union may renew its motions for injunctive relief in the district court." Id. Finally, the District of Columbia Circuit instructed this Court that "if the FLRA acts to deny the union access to the Woodlawn complex, the district court should entertain its constitutional claim." Id.

 On June 9, 1992, having received the mandate from the Court of Appeals, this Court re-opened the action and established a briefing schedule for plaintiffs' renewed motion for injunctive relief. On June 24, 1992, plaintiffs filed a motion for expedited scheduling. Attached to that motion was the decision of the FLRA in Social Security Administration and NTEU and AFGE, 45 FLRA No. 27 (June 22, 1992), dismissing plaintiffs' complaint.

 On June 25, 1992, the Court granted plaintiffs' request for expedited scheduling and established a hearing date of July 16, 1992 and a briefing schedule. Also on June 25, 1992, the Court issued a second Order granting the motion of the American Federation of Government Employees, AFL-CIO ("AFGE"), the recognized exclusive representative for the consolidated bargaining unit of employees of the SSA, to intervene as a defendant-intervenor. The Court further states that it did not appear there was any reason why the Court could not issue a final decision on the merits shortly after the July 16, 1992 hearing. Neither side objected to the Court promptly issuing a final ruling on the merits.

 Presently pending are plaintiffs' motion for a preliminary injunction, plaintiffs' motion for summary judgment, and federal defendants' motion for summary judgment. For the following reasons, plaintiffs' renewed motion for a PI is denied as moot, plaintiffs' motion for summary judgment is granted, and defendants' motion for summary judgment is denied.

 I. BACKGROUND

 NTEU is engaged in a campaign to supplant the AFGE as the exclusive bargaining representative of approximately 49,000 SSA employees. The campaign has been underway for several years. As part of that effort, NTEU seeks to contact SSA employees who work at more than 1,300 facilities throughout the United States.

 SSA's headquarters is located primarily in eleven large office buildings in Woodlawn, Maryland, a suburb approximately seven miles west of downtown Baltimore. The Woodlawn facility houses SSA's top administrative work force, its National Computer Center, its security operation, and a variety of other administrative and operational functions. Approximately 8,000 bargaining unit SSA employees are assigned to the headquarters facility in Woodlawn, Maryland.

 The Woodlawn facility is boarded on the north side by Security Boulevard, a busy, six-lane suburban thoroughfare, and straddles Woodlawn Drive, another busy, suburban street. All of the buildings in the headquarters facility are set back from these streets by large lawns and parking lots.

 To gain access to the headquarters facility, an employee or member of the public turns from Security Boulevard, Woodlawn Drive, or Parallel Road onto smaller roads that lead to the parking lots and buildings. The facility is served by Maryland Transit Authority buses, which deposit passengers at various stops, including one in the facility at a large traffic circle. The traffic circle is surrounded on three sides by a core group of four large office buildings and is at the center of the facility. Employees can enter the interior of the buildings through doors on either side by walking along the sidewalks surrounding the buildings. The three large office buildings and several smaller buildings, which are not part of this core group, have separate parking facilities and entrances. These buildings are surrounded by pedestrian sidewalks. Assuming that business with SSA is involved, including activities conducted pursuant to a permit, members of the public have access to the sidewalks surrounding the office buildings at Woodlawn. To gain entrance to the interior of the buildings, or work areas, it is necessary to pass through security and to have official business within.

 The Woodlawn facility is owned by the United States government. Management of the Woodlawn complex is governed by a delegation agreement, effective August 3, 1986, between the GSA, which owns the property, and HHS, of which SSA is a part. Under the delegation agreement, SSA, rather than GSA, is responsible for issuing permits for the distribution of literature in public areas at the Woodlawn facility. *fn1" The sidewalks, bus stops, and other outdoor areas within the Woodlawn facility are public areas under the GSA-promulgated Federal Property Management Regulations. See 41 C.F.R. § 101-20.003(z).

 Between November, 1989 and April, 1991, SSA has approved permits to make distributions to employees requested by such organizations as the Little Sisters of the Poor, Mothers Against Drunk Driving, the Disabled American Veterans, and the American Legion. Similarly, during the early 1980s, NTEU conducted an organizing campaign at the Health Care Financing Administration ("HCFA"), which shares the Woodlawn facility and some of its buildings with SSA. See American Federation ...


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