Department of the Navy, Naval Telecommunications Center, Ward Circle (Activity) and Navtelcom Unit Local No. 1, American Federation of Government Employees, AFL-CIO (Petitioner) 

 



[ v06 p498 ]
06:0498(95)RO
The decision of the Authority follows:


 6 FLRA No. 95
 
 DEPARTMENT OF THE NAVY,
 NAVAL TELECOMMUNICATIONS CENTER,
 WARD CIRCLE
 Activity
 
 and
 
 NAVTELCOM UNIT LOCAL NO. 1,
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Petitioner
 
                                            Case No. 3-RO-46
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED WITH THE AUTHORITY UNDER SECTION 7111(B)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 A HEARING WAS HELD BEFORE A HEARING OFFICER OF THE AUTHORITY.  /1/ THE
 AUTHORITY HAS REVIEWED THE HEARING OFFICER'S RULINGS MADE AT THE HEARING
 AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR.  /2/ THE RULINGS
 ARE HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING POST-HEARING BRIEFS
 FILED BY THE PARTIES, /3/ THE AUTHORITY FINDS:  AFGE SEEKS TO REPRESENT
 A UNIT OF ALL GENERAL SCHEDULE (GS) EMPLOYEES OF THE DEPARTMENT OF THE
 NAVY, NAVAL TELECOMMUNICATIONS CENTER, WARD CIRCLE (THE ACTIVITY),
 EXCLUDING ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS
 AND EMPLOYEES DESCRIBED IN SECTION 7112(B)(2), (3), (4), (6) AND (7) OF
 THE STATUTE.  /4/
 
    THE ACTIVITY AND OPM ASSERT THAT THE AUTHORITY HAS NO JURISDICTION TO
 PROCESS THIS CASE BECAUSE OF PRESIDENTIAL EXECUTIVE ORDER 12171 (44
 FED.REG. 66566(1979)) ISSUED PURSUANT TO SECTION 7103(B) OF THE STATUTE
 /5/ WHICH PERMITS THE PRESIDENT TO EXCLUDE "ANY AGENCY OR SUBDIVISION
 THEREOF" FROM COVERAGE UNDER THE STATUTE ON NATIONAL SECURITY GROUNDS.
 EXECUTIVE ORDER 12171 SECTION 1-101 PROVIDES, IN PERTINENT PART:  "THE
 AGENCIES OR SUBDIVISIONS THEREOF SET FORTH IN SECTION 1-2 OF THIS ORDER
 ARE HEREBY DETERMINED TO HAVE AS A PRIMARY FUNCTION INTELLIGENCE,
 COUNTERINTELLIGENCE, INVESTIGATIVE, OR NATIONAL SECURITY WORK. . . .
 THE AGENCIES OR SUBDIVISIONS THEREOF SET FORTH IN SECTION 1-2 OF THE
 ORDER ARE HEREBY EXCLUDED FROM COVERAGE UNDER CHAPTER 71 OF TITLE 5 OF
 THE UNITED STATES CODE." EXECUTIVE ORDER 12171 SECTION 1-205 PROVIDES
 FOR THE EXCLUSION OF "AGENCIES OR SUBDIVISIONS OF THE DEPARTMENT OF THE
 NAVY, DEPARTMENT OF DEFENSE" INCLUDING "(G) UNITS COMPOSED PRIMARILY OF
 EMPLOYEES ENGAGED IN THE OPERATION, REPAIR, AND/OR MAINTENANCE OF "OFF
 LINE" OR "ON LINE" CRYPTOGRAPHIC EQUIPMENT" AND "(H) UNITS COMPOSED
 PRIMARILY OF EMPLOYEES OF NAVAL TELECOMMUNICATIONS ACTIVITIES IN
 POSITIONS WHICH REQUIRE A CRYPTOGRAPHIC AUTHORIZATION."
 
    WHERE THE PRESIDENT HAS SPECIFICALLY EXCLUDED AN AGENCY OR ACTIVITY
 FROM COVERAGE UNDER THE STATUTE BY ISSUING AN EXECUTIVE ORDER, THE
 AUTHORITY IS CLEARLY WITHOUT JURISDICTION TO PROCESS A REPRESENTATION
 PETITION.  /6/ WHERE, HOWEVER, THE PRESIDENT ISSUES AN EXECUTIVE ORDER
 WHICH DOES NOT SPECIFICALLY EXCLUDE AN ENTIRE AGENCY OR ACTIVITY FROM
 COVERAGE BUT INSTEAD EXCLUDES PARTICULAR GROUPINGS OF EMPLOYEES, AS IN
 THE INSTANT CASE, THE AUTHORITY MUST DETERMINE WHETHER, AS A THRESHOLD
 FACTUAL MATTER, THE EXECUTIVE ORDER IS APPLICABLE TO THE EMPLOYEES IN
 QUESTION.  IF IT IS DETERMINED THAT THE EXECUTIVE ORDER APPLIES, THEN
 THE AUTHORITY IS WITHOUT JURISDICTION TO PROCESS A REPRESENTATION
 PETITION WITH RESPECT TO THOSE EMPLOYEES.  ACCORDINGLY, WE NOW TURN TO A
 CONSIDERATION OF THAT ISSUE.
 
    THE ACTIVITY IS ONE OF SIX TELECOMMUNICATIONS CENTERS WITHIN THE
 NAVAL COMMUNICATION UNIT, WASHINGTON, D.C.  THE ACTIVITY'S MISSION IS TO
 MANAGE, OPERATE AND MAINTAIN THOSE FACILITIES, SYSTEMS, EQUIPMENT AND
 DEVICES NECESSARY TO PROVIDE REQUISITE COMMUNICATION FOR THE COMMAND,
 OPERATIONAL CONTROL AND ADMINISTRATION OF THE DEPARTMENT OF THE NAVY.
 IT IS A SEPARATE ENTITY WITH ITS OWN ORGANIZATION, AND IS PART OF A
 LARGER ORGANIZATION ONLY IN THE SENSE OF BEING WITHIN A CHAIN OF
 COMMAND.  IN THIS REGARD, THE ACTIVITY HAS ITS OWN IDENTIFICATION NUMBER
 FOR FINANCIAL, PERSONNEL AND ORGANIZATIONAL MATTERS, INCLUDING ITS OWN
 ALLOCATION OF CIVILIAN CEILINGS AND ITS OWN ADMINISTRATIVE STRUCTURE.
 
    THE ACTIVITY OPERATES CRYPTOGRAPHIC EQUIPMENT WHICH PROVIDES SECURITY
 FOR ITS OWN TELECOMMUNICAT