United States Department of the Army, Corps of Engineers, United States Army Engineer Research Development Center, Vicksburg, Mississippi (Agency/Petitioner) and American Federation of Government Employee, Local 3310, AFL-CIO (Labor Organization/Incumbent Intervenor) and National Federation of Federal Employees, Federal District 1, Iamaw, AFL-CIO (Labor Organization/Incumbent Intervenor) and International Federation of Professional and Technical Engineers, Local 4, Chapter 1, AFL-CIO, Clc (Labor Organization/Incumbent Intervenor) and International Federation of Professional and Technical Engineers, Local 1017, AFL-CIO, Clc (Labor Organization/Incumbent Intervenor)

[ v57 p834 ]

57 FLRA No. 180

UNITED STATES DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS
UNITED STATES ARMY ENGINEER
RESEARCH DEVELOPMENT CENTER
VICKSBURG, MISSISSIPPI
(Agency/Petitioner)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEE, LOCAL 3310, AFL-CIO
(Labor Organization/Incumbent Intervenor)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, FEDERAL DISTRICT 1
IAMAW, AFL-CIO
(Labor Organization/Incumbent Intervenor)

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS
LOCAL 4, CHAPTER 1, AFL-CIO, CLC
(Labor Organization/Incumbent Intervenor

and

INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS
LOCAL 1017, AFL-CIO, CLC
(Labor Organization/Incumbent Intervenor)

_____

AT-RP-00038
WA-RP-00080

_____

DECISION AND ORDER ON REVIEW

June 6, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the Incumbent Intervenor, the National Federation of Federal Employees, Federal District 1, IAMAW, AFL-CIO (NFFE), under § 2422.31(c) of the Authority's Regulations. The Agency filed an opposition. On December 17, 2001, the [ v57 p835 ] Authority granted the application for review in the unique circumstances of this case, arising out of delays in receiving filings caused by anthrax-related quarantines of the mails.

      The application for review seeks to include in the bargaining unit approximately 177 employees that the Regional Director (RD) found were engaged in security work within the meaning of § 7112(b)(6) of the Federal Service Labor-Management Relations Statute (Statute). For the reasons that follow, we affirm the RD's Decision and Order.

II.     Background and RD's Decision

      The Agency had sought a unit clarification following a reorganization which created the Engineer Research Development Center (ERDC) in Vicksburg, Mississippi, as a new entity and resulted in the transfer of employees from four sites where they were represented by different labor organizations. Two separate representation petitions were filed, and a consolidated hearing was held for those petitions. The questions regarding the appropriateness of the pre-existing bargaining units and successorship employer are not at issue and will not be discussed here.

A.     Background

      The ERDC has one component whose mission is to provide knowledge of the battlefield through research and development, acquisition and operational support, and the application of expertise in the topographic and related sciences. The work in these areas is often classified at the level of "`sensitive compartmented information'" or "`SCI.'" RD's Decision at 27. According to the record, the definition of "SCI" is: "`classified information concerning, or derived from intelligence sources methods, or analytical processes, which is required to be handled within formal access control systems established by the Director of Central Intelligence.'" Id.

      This ERDC component has a facility for handling the SCI technical data, SCI systems and equipment, hardware and computer software called a Sensitive Compartmented Information Facility (SCIF). Access to the SCIF is restricted to cardholders with appropriate security clearance who must use a magnetic badge and enter a PIN number in order to gain access to individual compartments. Once a cardholder has access to the SCIF, the employee has unescorted use at any time of all SCI technical and performance information, hardware and software communications systems and other materials in the SCIF.

      The Agency submitted a list of 177 employees who occupy positions designated with a special security classification and have access to the SCIF. The special security classification provided is the highest security classification in the Department of Defense. The Agency's policy is to grant this clearance if it is anticipated that a position will require access any time within 12 months. The Agency stated that it is necessary to grant security clearances in advance because the investigation for this level of clearance may take nine to twelve months to complete. The RD also found that the need and frequency to access the SCIF varies depending on work requirements and may change as the need for security work arises.

B.     RD's Decision

      The RD discussed the standard for security work, as it directly affects national security, that is set forth in United States Dep't of Justice, 52 FLRA 1093 (1997) (DOJ). In DOJ, the Authority found that "an employee is engaged in `security work' within the meaning of § 7112(b)(6) [of the Statute] if the required tasks, duties, functions, or activities of the employee's position include: (1) the designing, analyzing, or monitoring of security systems or procedures; or (2) the regular use of, or access to, classified information." RD's Decision at 30.

      Applying the DOJ standard to the employees at issue, the RD found that the employees' mission is to provide the war fighter with knowledge of the battlefield through research, development, and the application of expertise in the topographic and related sciences. The RD determined that the employees' responsibilities make it clear that the work performed involves preservation of the military strength of the Government in domestic and foreign affairs, against and from espionage, sabotage, subversion, and foreign aggression. Accordingly, the RD found that the work performed by the employees involves national security. See id.

      The RD also found that the evidence demonstrated that all of the employees at issue are able to access the SCIF and thus have access to classified information. The RD noted that while the disputed employees may spend relatively little of their actual working time in the SCIF, they possess a badge that allows them unescorted access to the SCIF at any time. Additionally, the RD found that the record shows that if a national emergency were declared, the disputed employees may be called upon to support crisis and contingency response missions, which would require access to SCI information. Therefore, the RD concluded that the work of the disputed employees includes the regular use of, or access [ v57 p836 ] to, classified information concerning matters of national security. Accordingly, the RD found that all of the employees at issue here are engaged in security work which directly affects national security within the meaning of § 7112(b)(6) of the Statute and that the employees should be excluded from the bargaining unit. See id. at 31.

III.     Positions of the Parties

A.     NFFE's Application

      NFFE contends that in DOJ, 52 FLRA 1093, the Authority deviated from its previous decision in Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644 (1980) (Oak Ridge), and greatly expanded the criteria for excluding security personnel from bargaining units under § 7112(b)(6) of the Statute. According to NFFE, this was a mistake because it expanded the security clause of the Statute beyond what was ever intended by Congress.

      NFFE contends that the legislative history of the 1978 Civil Service Reform Act, which includes the Statute, shows that the "security work" exclusion should be narrowly interpreted. To support its contention, NFFE relies on testimony from an Office of Personnel Management (OPM) official regarding agencies excepted from the labor management program under the executive order that preceded the Statute. NFFE also cites testimony from a congressman regarding exclusion of the Federal Bureau of Investigation. Based on these testimonies, NFFE asserts that Congress did not intend to give this provision the "sweeping coverage the Authority did in DOJ." Application at 3.

      NFFE also contends that even if the Authority decides to uphold its DOJ decision, the RD applied the decision incorrectly to the facts in this case. According to NFFE, the RD ignored the amount of time that certain employees have access to classified information. NFFE maintains that fewer than half of the employees have access to classified material on a weekly basis. NFFE maintains that the Authority held in DOJ that the amount of time spent with classified material is precisely the "`controlling factor'" in determining bargaining unit status. Application at 4. NFFE asserts that the fact that fewer than half of the employees have access to classified material on a weekly basis requires a ruling in NFFE's favor.

B.     Agency's Response

      The Agency contends that NFFE has provided no evidence from the legislative history to support its argument. The Agency argues that none of the legislative history quoted by NFFE is in any way related to § 7112(b)(6). The Agency asserts that the OPM official's testimony pertained to the status of the federal labor-management relations program under Executive Order 11491, as amended. The Agency further asserts that the congressman's testimony concerned the exclusion of entire agencies from the Statute, under § 7103(a)(3), rather than individual employees performing security work under § 7112(b)(6). Accordingly, the Agency argues that NFFE's argument for a reconsideration of established law or policy is without merit.

      The Agency also contends that NFFE's contention is incorrect regarding the amount of time an employee spends with classified material as a factor that determines whether a position should be classified as involving security work. According to the Agency, the DOJ decision did not state that time spent with classified material is the "`controlling factor.'" Response at 6. The Agency asserts that DOJ holds that "`mere access'" can be the controlling factor. Id. The Agency contends that the arguments made by NFFE are the same as those made by the union in DOJ and that the Authority should dismiss the arguments for the same reasons as set forth in DOJ.

IV.     Analysis and Conclusions

A.     Established law or policy does not warrant reconsideration

      In DOJ, the Authority determined that an employee is engaged in "security work" within the meaning of § 7112(b)(6) of the Statute if the required tasks, duties, functions, or activities of the employee's position include: (1) the designing, analyzing, or monitoring of security systems of procedures; or (2) the regular use of, or access to, classified information. See DOJ, 52 FLRA at 1103. If an employee is engaged in security work, as so defined, which directly affects national security, the employee may not be included in a bargaining unit.

      In DOJ, the Authority considered arguments similar to those made by NFFE in this case. In DOJ, the Authority reviewed the legislative history of the Statute and the definition of the term "national security position" as set forth in 5 C.F.R. § 732.102(a). That definition was promulgated based upon instruction contained in executive orders. A "national security position" as defined in § 732.102(a) means a position "that require[s] regular use of, or access to, classified information." See DOJ, 52 FLRA at 1102-03. Accordingly, the Authority revised its definition of a security position [ v57 p837 ] to include the access to classified information. That definition has not changed.

      Moreover, the legislative history relied on by NFFE does not support its contention. The testimony from the OPM official reflected on the status of the federal labor-management relations program under Executive Order 11491, as amended, and did not pertain to the Statute. Additionally, the congressman's testimony concerned the exclusion of entire agencies from the Statute, under § 7103(a)(3), and did not address individual employees performing security work under § 7112(b)(6). Therefore, NFFE's reliance on this legislative history is misplaced.

      Accordi