37:1077(90)CU - - Attorneys Office for the District of Columbia and AFSCME, Capital Area Council of Federal Employees, #26 - - 1990 FLRAdec RP - - v37 p1077



[ v37 p1077 ]
37:1077(90)CU
The decision of the Authority follows:


37 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES ATTORNEYS OFFICE

FOR THE DISTRICT OF COLUMBIA

(Activity)

and

AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES

CAPITAL AREA COUNCIL OF FEDERAL EMPLOYEES, #26

(Labor Organization/Petitioner)

3-CU-00004

DECISION AND ORDER ON APPLICATIONS FOR REVIEW

October 19, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on applications for review of the Regional Director's (RD's) Decision and Order on Petition for Clarification of Unit filed by the Activity and the Labor Organization (the Union) under section 2422.17(a) of the Activity's Rules and Regulations. Neither party filed an opposition to the other's application for review.

The Activity requests review of the RD's findings that: (1) the Victim/Witness Advocate position is not "professional," within the meaning of section 7103(a)(15) of the Statute; and (2) the position of Supply and Property Management Specialist is not supervisory, within the meaning of section 7103(a)(10) of the Statute. The Union contends that the RD erred in finding that the positions of Computer Specialist, Computer Programmer, and Management Analyst should be excluded from the bargaining unit because the incumbents perform work which directly affects national security, within the meaning of section 7112(b)(6) of the Statute.

For the following reasons, we deny both applications for review.

II. Regional Director's Decision

The Union filed a Clarification of Unit (CU) petition seeking to include the following positions in its existing unit of all full-time, and regularly scheduled part-time, non-professional employees: Computer Specialist, GS-11; Computer Programmer, GS-09; Management Analyst, GS-09; Victim/Witness Advocate, GS-09/11; and Supply and Property Management Specialist, GS-09.

The RD found that the Activity, through its Transnational and Major Crimes Unit (Transnational Unit), prosecutes crimes against U.S. citizens in foreign countries including such cases as espionage, illegal drug sales, murder, hijacking, kidnapping and acts of terrorism. Further, the RD found that, due to the nature of these cases, evidence needed to indict and prosecute defendants is often classified because it reveals the identity of informants, including sources in foreign countries, and in other ways affects matters of national security.

According to the RD, the incumbents of the positions of Computer Specialist, Computer Programmer, and Management Analyst are the in-house technical personnel for the Activity's computer systems and they "provide the back-up assistance necessary to maintain, secure, store and retrieve all data, including classified information, contained in the computer system in the Criminal Division." RD's Decision at 4. The RD found that the incumbents in the three contested positions have access to all data in the Criminal Division computer system, including sensitive data which has been removed from the central computer, and have the ability to override passwords in the computer system. Further, according to the RD, the incumbents are responsible, in some circumstances, for obtaining access to the classified data. Finally, the RD found that the incumbents will share major responsibility for training the Activity's employees in the use of the new Eagle computer system, which is in the process of being installed within the Activity. The RD noted that the incumbents were granted top secret security clearances in August 1989.

The RD concluded that "the incumbents have access to classified information and are responsible for designing systems and/or assuring that classified information is not disclosed to unauthorized personnel." Id. at 6 (footnote omitted). Therefore, the RD found that the incumbents are engaged in security work which directly affects national security, within the meaning of section 7112(b)(6) of the Statute. In view of his decision, the RD did not address whether the incumbents should be excluded from the unit because they were confidential employees, within the meaning of section 7103(a)(13) of the Statute.

The RD found that the Victim/Witness Advocate position is located within the Victim-Witness Assistance Unit, which is responsible for assisting victims who are to be witnesses in Activity prosecutions. According to the RD, the Victim/Witness Advocate explains to the victim/witness the judicial process to which he/she will be exposed, determines the type of assistance needed by the victim/witness, and often refers the victim/witness to appropriate social service agencies for assistance. According to the RD, the "incumbent may be considered to be performing a general type of counseling, as opposed to psychological or clinical counseling." Id. at 7.

The RD also found that the incumbent Victim/Witness Advocate and her predecessor were hired under vacancy announcements which did not require a college degree and, after they were hired, were given training on techniques of victim assistance and crisis intervention. The RD noted that a recent vacancy announcement required "a college degree in a general unspecified field and outside experience which would aid the incumbent in performing the duties of the position." Id. at 8.

The RD concluded that a Victim/Witness Advocate is not a professional employee, within the meaning of section 7103(a)(15) of the Statute. The RD noted that: (1) the incumbent was hired under a vacancy announcement that had no requirement for advanced educational experience; (2) the incumbent's duties are of a routine nature; and (3) the incumbent does not engage in psychological or clinical counseling.

Finally, the RD found that the incumbent Supply and Property Management Specialist works with a junior employee who performs essentially the same work as the incumbent. The RD found that both employees are supervised by the Office Service Manager. The RD found that the incumbent "has no independent authority to hire, fire, promote, reward, transfer, furlough, recall, layoff, suspend or discipline employees, to adjust their grievances or to effectively recommend such action." Id. at 10. Further, the RD found that although the incumbent assigns and directs the work of the junior employee, those functions are routine. Accordingly, the RD concluded that the incumbent was a work leader who did not exercise independent judgment in the performance of supervisory authority and was not, therefore, a supervisor, within the meaning of section 7103(a)(10) of the Statute.

III. Activity's Application for Review

The Activity seeks review of the RD's decision concerning the Victim/Witness Advocate and the Supply and Property Management Specialist on the grounds that: (1) a substantial question of law or policy is raised because of the absence of or a departure from Authority precedent; and (2) the RD's decision on a substantial factual issue is clearly erroneous and the error prejudicially affects its rights.

As for the Victim/Witness Advocate, the Activity contends that determinations as to whether employees are professional must be based on the employees' duties, not solely on the educational requirements of their positions. Based on the statutory definition of "professional employee," the Activity argues that an employee need not have a college degree to be considered professional.

The Activity also argues that the RD erred in finding that the incumbent's duties are routine. The Activity claims that the record indicates that the incumbent "must constantly exercise judgment in treading the line between being an advocate for the witness and an advocate for the prosecution." Activity's Application for Review at 19. According to the Activity, the record is clear that "the decision as to whether to counsel the victim oneself or refer the victim requires the exercise of professional judgment." Id. at 21 (emphasis in original) (footnote omitted).

With respect to the Supply and Property Management Specialist, the Activity claims that the RD erred in finding that the incumbent's exercise of authority to assign and direct his junior employee was routine. According to the Activity, the incumbent does not perform the same work as the junior employee and is, in fact, responsible for the orderly and efficient operation of the office supply room.

IV. Union's Application for Review

The Union seeks review of the RD's finding that the incumbents in the positions of Computer Specialist, Computer Programmer, and Management Analyst are engaged in security work which directly affects national security, within the meaning of section 7112(b)(6) of the Statute. The Union asserts that review should be granted because: (1) a substantial question of law is raised because of a departure from Authority precedent; and (2) the RD's decision on a substantial factual issue is clearly erroneous and the error prejudicially affects its rights.

According to the Union, the RD erred by basing his decision on the Activity's description of what the responsibilities of the incumbents would be when the Eagle Project was completed. Further, the Union claims that the RD ignored the Authority's interpretation of section 7112(b)(6) in Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644 (1980) (Oak Ridge). The Union notes that in Oak Ridge, the Authority held that mere access to sensitive information is not sufficient to exclude an employee from a bargaining unit under section 7112(b)(6). In addition, the Union argues that the RD erroneously found that: (1) the incumbents secure classified information; (2) the jobs of the incumbents are interchangeable; (3) the information in the Criminal Division computer system to which the incumbents have access is classified; (4) the incumbents can override passwords and access documents; and (5) the incumbents are responsible for protecting the classified data in the event that they are unable to resolve a problem and an outside technician is called to service the computer.

V. Analysis and Conclusions

For the following reasons, we conclude that no compelling reasons exist, within the meaning of section 2422.17(c) of the Authority's Rules and Regulations, for granting either the Activity's or the Union's application for review.

A. Victim/Witness Advocate

At the time of the hearing, there were two Victim/Witness Advocate positions. Only one position was filled, however. The RD found not only that the incumbent was not a professional employee, but also that the individual who would fill the vacant position was not a professional employee.

The Authority does not resolve questions concerning the status of vacant positions. See Department of the Treasury, Bureau of the Mint, U.S. Mint, Denver, Colorado, 6 FLRA 52 (1981). Accordingly, in considering the RD's decision, we will address the record and his findings and conclusions only as they apply to the Victim/Witness Advocate position currently encumbered.

In pertinent part, section 7103(a)(15) of the Statute defines a professional employee as:

(A) an employee engaged in the performance of work --

(i) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning . . .

(ii) requiring the consistant exercise of discretion and judgment in its performance;

(iii) which is predominately intellectual and varied in character (as distinguished from routine mental, manual, mechanical, or physical work)[.]

We find that the Activity has not shown that the RD's factual findings regarding the incumbent Victim/Witness Advocate were clearly erroneous. Rather, we find that the record supports the RD's findings that the incumbent: (1) was hired under a vacancy announcement that did not require college training or any advanced education; (2) does no clinical or psychological counseling; and (3) has duties of a routine nature.

We note that section 7103(a)(15) of the Statute provides that a professional employee is engaged in work requiring advanced knowledge of a type "customarily acquired" in an institution of higher learning. Consistent with this definition, we agree with the Activity that a college degree is not always required for an employee to be considered professional. However, in view of the statutory definition, the RD's examination of the educational requirements of the position was not misplaced and, in view of the RD's findings concerning the incumbent's duties and responsibilities, the Activity's argument provides no basis for concluding that the incumbent is professional.

Moreover, we reject the Activity's argument that the Victim/Witness Advocate should be considered professional based on the Authority's decision concerning the Vocational Rehabilitation Specialist in Veterans Administration, Regional Office, Portland, Oregon, 9 FLRA 804 (1982) (Veterans Administration). In Veterans Administration, the incumbents' duties required "a master's degree in Rehabilitation Counseling or a related field . . . ." Id. at 805. In this case, it is uncontroverted that the incumbent Victim/Witness Advocate was hired under a vacancy announcement which did not require a college degree.

We find that the Activity has not shown the RD's factual findings to be clearly erroneous, or that the RD departed from Authority precedent in finding that the incumbent in the position of Victim/Witness Advocate is not a professional employee, as defined in section 7103(a)(15) of the Statute. See, for example, 934th Tactical Airlift Group (AFRES), Minneapolis-St. Paul International Airport, Minneapolis, Minnesota, 13 FLRA 549, 552-53 (1983) and Veterans Administration. Accordingly, we deny the Activity's application for review of the RD's decision concerning the Victim/Witness Advocate.

B. Supply and Property Management Specialist

Section 7103(a)(10) of the Statute defines a "supervisor" as:

an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment[.].

The RD found, pursuant to Authority precedent as applied to the record before him, that the incumbent Supply and Property Management Specialist is not a supervisor, within the meaning of section 7103(a)(10) of the Statute. The RD found that the record fails to establish that the incumbent exercises independent judgment in the performance of supervisory authority, as required by the Statute. See U.S. Department of the Army, Army Aviation Systems Command and Army Troop Support Command, St. Louis, Missouri, 36 FLRA 587, 596 (1990).

The Activity has provided no evidence to support its claim that the RD's factual findings were clearly erroneous or that his decision departed from Authority precedent. Accordingly, we deny the Activity's application for review of the RD's decision that the incumbent Supply and Property Management Specialist is not a supervisor.

C. Computer Specialist, GS-11, Computer Programmer, GS-09 and Management Analyst, GS-09

Section 7112(b)(6) provides, in pertinent part, that a unit shall not be determined to be appropriate if it includes any employee engaged in security work which directly affects national security. In Oak Ridge, the Authority defined "security work" as:

a task, duty, function, or activity relating to securing, guarding, shielding, protecting, or preserving something. As used in context, "security work" would include the design, analysis, or monitoring of security systems and procedures.

Oak Ridge, 4 FLRA at 655. Security work was found not to "include work involving mere access to and use of sensitive information and material." Id. "National security" was defined "to include only those sensitive activities of the government that are directly related to the protection and preservation of the military, economic, and productive strength of the United States[.]" Id. at 655-56.

In applying section 7112(b)(6), the Authority has excluded employees from bargaining units who: (1) maintained a classified material system, and reviewed and handled classified material; (2) controlled access to, destroyed, transported, and protected highly classified information; (3) maintained clearance records on individuals who are applicants for or holders of clearances to top secret materials and determined whether or not to grant such clearances; and (4) were responsible for the maintenance of a vault where top secret material was kept and whose duties included supplying technicians with top secret materials. See Defense Mapping Agency, Hydrographic/Topographic Center, Providence Office, Brookside Avenue, West Warwick, Rhode Island, Department of Defense, 13 FLRA 128 (1983); Defense Mapping Agency, Aerospace Center, Kansas City Office, Kansas City, Missouri, 13 FLRA 52 (1983); United States Department of the Navy, U.S. Naval Station, Panama, 7 FLRA 489 (1981) and Oak Ridge.

On review of the record, we find that the Union has not demonstrated that the contested factual findings of the RD are clearly erroneous or that the RD departed from Authority precedent. In particular, the Union has not demonstrated that the RD's finding that the incumbents "are responsible for designing systems and/or assuring that classified information is not disclosed to unauthorized personnel[]" is clearly erroneous. RD's Decision at 6 (footnote omitted). Moreover, there is no dispute in the record before us that the classified information has a direct bearing on national security. Accordingly, based on Authority precedent, we find that the Union has not demonstrated that review is warranted of the RD's decision that the incumbents are engaged in security work which directly affects national security, within the meaning of section 7112(b)(6) of the Statute.

In so finding, we reaffirm the principle, stated in Oak Ridge, that mere access to classified information is not suffi