Social Security Administration, Baltimore, Maryland (Agency) and American Federation of Government Employees, AFL-CIO (Petitioner/Labor Organization)

[ v58 p170 ]

58 FLRA No. 42

SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
AFL-CIO
(Petitioner/Labor Organization)

WA-RP-90035

_____

ORDER GRANTING, IN PART, AND DENYING, IN
PART, APPLICATION FOR REVIEW

November 1, 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 of the Acting Regional Director's (RD's) decision clarifying a bargaining unit to include four positions encumbered by eight employees. The Social Security Administration, Baltimore, Maryland (the Agency or SSA) filed the application under § 2422.31(c) of the Authority's Regulations. The American Federation of Government Employees, AFL-CIO (the Union) did not file an opposition.

      For the reasons that follow, we grant the application in part and deny it in part.

II.     Background and RD's Decision

      SSA is responsible for administering the Social Security Act. The Union represents a nationwide consolidated bargaining unit of professional and nonprofessional employees of SSA. All of the disputed positions in this case are in the Office of Protective Security Services, Division of Security Program Services. This office provides security oversight for all SSA facilities, including 24-hour security for all facilities. See RD's Decision at 5.

      The National Computer Center (NCC), located at SSA's main complex, is one of the data operations centers for SSA. See id. The NCC houses all the information that allows SSA to pay claimants, as well as all computer systems necessary to connect the other SSA offices and regional offices. If the NCC computers ceased functioning, the field offices would be unable to process claims. See id. The NCC issues all social security cards and maintains blank social security cards. The NCC has its own control center and has special security procedures which include badge and access codes for each employee, which are necessary to enter the building and move around in it. The NCC and another building in the main complex, Security West Building, maintain information dealing with participants in the Witness Protection Program.

      As relevant to the application, the Union sought to clarify the bargaining unit to include eight incumbents in four positions -- (1) Electronics Technician, GS-856-11 (ET); (2) Physical Security Specialist, GS-080-11 (Position Description #8B349) (PSS, PD #8B349); (3) Physical Security Specialist, GS-080-11 (PD #8B356) (PSS, PD #8B356) and (4) Employee Services Specialist, GS-301-11 (ESS). [n1] 

      Relying on United States Dep't of Justice, 52 FLRA 1093 (1997) (DOJ) and Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644 (1980) (Oak Ridge), the RD concluded that the incumbents in the four positions should be included in the unit. [n2] As relevant to the application for review, the RD made the following determinations regarding the Agency's claim that the incumbents of the positions should be excluded on the basis that they are engaged in security work within the meaning of § 7112(b)(6) of the Federal Service Labor-Management Relations Statute (Statute). [n3] 

      [ v58 p171 ] As an initial matter, before examining the duties of the incumbents of the specific positions, the RD discussed the role of the SSA in the national economy and addressed the Agency's claim that there would be a significant effect on the national economy if the information contained in its NCC and Security West facilities were lost.

      The RD stated that "[o]ne in six Americans receives a [s]ocial security benefit, and about 98 percent of all workers are in jobs covered by [s]ocial [s]ecurity." RD's Decision at 14. She also stated that social security benefits comprise "5 percent of the nation's total economic output." Id. She added that the "programs which form the core of SSA's responsibilities represent critical income support to some 40 million people, and issuance of a correct and timely payment to each person is the [A]gency's paramount responsibility." Id. at 15.

      Further, the RD stated that "[s]ocial [s]ecurity numbers are used to establish an individual's identity for purposes of retirement benefits; tax reporting; educational, employment, bank and health records; as well as consumer credit records." Id. She added that "[i]f blank SSA cards were stolen, they could be used to create a new identity." Id.

      The RD addressed the Agency's argument that there would be "a consequence to the national economy if the information that SSA has at its NCC and Security West facility were lost due to a tragedy." Id. at 15-16. The RD found that "the evidence showed that while there may be an immediate stoppage in the Agency's ability to process claims or make benefits payments, the Agency's back up recovery system would allow claims to be paid, even if many claims had to be processed manually." Id. at 16. Noting the Agency's statement that it "maintains the social security and personal information of high profile Americans, such as the President or military personnel," the RD found that "this information is accessible by current bargaining unit employees." Id.

      Next, the RD examined the duties of the incumbents of the two PSS positions. The RD found that the duties of the incumbents include conducting site surveys of SSA offices nationwide to develop knowledge of the facility security systems and make recommendations for improvements in the design of such security systems. The RD also found that the incumbents are responsible for writing and implementing security action plans, emergency plans and AIMS guides (SSA administrative manuals) as they relate to security matters, as well as ensuring that these security measures are properly implemented and used. Further, the RD found that the incumbents are all, to some extent, involved with the granting of access to SSA facilities, to both employees and non-employees. In most cases when an outsider requests access, an additional entity, such as a supervisor or the Federal Bureau of Investigation, is involved in the decision.

      The RD concluded that "while these duties can certainly be construed as engaging these employees in security work, there is no evidence that any of these has a `straight bearing or unbroken connection that produces a material influence or alteration' of national security." Id. In addition, the RD found that the incumbents' "involvement in the day-to-day security needs of the Agency, such as responding to emergencies, taking action to protect the personnel and property of SSA, communicating with other government agencies over security related issues, and receiving security alerts does not show that these employees' duties directly affect national security." Id. at 16-17.

      The RD further found that these incumbents have access to the Security Repository, which holds 1500 security reviews for SSA offices nationwide (a database that includes all the site surveys), as well as an additional database that includes incident reports from SSA facilities. The RD concluded that "[w]hile this information may be deemed sensitive, it is not classified and none of these employees is required to maintain any sort of security clearance." Id. at 17.

      In addition, specifically with respect to the position of PSS, PD #8B349, the RD found that the incumbent may be the local area network administrator of the Continuity of Operations Plan (COOP). See id. at 17. The COOP is planned to ensure the continuity of SSA business in the case of an emergency. The RD concluded that "[n]one of the evidence presented at hearing indicated that this duty directly affects national security." Id. The RD stated, however, that once COOP "is fully operational the parties may have to revisit the duties of this position in order to determine whether it should be excluded from the bargaining unit based on 711[2](b)(6)." Id. at 17 n.4.

      Next, the RD examined the duties of the incumbents of the ET position. This position does not require a security clearance. See id. at 6-7. The RD found that the duties of the incumbents include participating in the design, installation and implementation of the security measures at SSA's most sensitive facilities, including closed-circuit television monitoring systems of the SSA. See id. at 6. The incumbents also have the ability to adjust the security systems for the SAA at these and other facilities and work with contractors as well as SSA [ v58 p172 ] management in providing guidance concerning technical security requirements.

      In addition, the incumbents of the ET position occasionally have access to documents which are considered classified. See id. at 18. The RD concluded that "[w]hile their duties constitute security work, there is no evidence that this work directly affects national security." Id. The RD further concluded that "while they may occasionally work with classified documents, they do not have regular access to them." Id.

      With respect to the incumbents of the PSS, PD #8B349; PSS, PD #8B356; and ET positions, the RD concluded as follows:

None of the individuals at issue in this petition are involved in the investigation for or the granting of security clearances. None of the employees at issue maintain classified materials. None of the employees at issue communicate top secret information as a condition of their employment, nor do any of them require security clearances.
Accordingly, based on the foregoing, I find that the employees at issue in this petition are not engaged in intelligence, counterintelligence or security work which directly affects national security within the meaning of section 7112(b)(6) of the Statute.

Id.

      The RD determined, therefore, that the incumbents of these positions should be included in the bargaining unit because they are not engaged in security work that directly affects national security within the meaning of § 7112(b)(6).

      With respect to the incumbents of the ESS position, the Agency claimed that they should be excluded from the bargaining unit because they are supervisors within the meaning of § 7103(a)(10) of the Statute. The RD rejected this claim.

      The RD stated that § 7103(a)(10) 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 judgement." Id. at 20-21 (quoting § 7103(a)(10)).

      The RD examined the duties of the incumbents of the ESS position. The incumbents of this position are "senior analysts and project leaders, and are called on to resolve parking problems as they arise." Id. at 21. The incumbents are responsible for issuing parking tickets to violators of the parking policy on SSA's campus. The RD stated that the incumbents "do not determine the duties of other employees, however, they do assign them work." Id. at 10.

      The RD found that there was no evidence presented indicating that the incumbents have any ability to discipline an SSA employee based on parking violations. Id. at 22. The RD stated that "[w]hile such behavior may be reported to a violating employee's supervisor, only that supervisor could make a decision on disciplinary action." Id. at 22 n.5.

      The RD also found that evidence was presented during the hearing that the incumbents "direct others in the parking and badging office in assigning and issuing parking permits." Id. at 22. The RD found, however, that the incumbents are "not titled supervisor, nor do they assign work or determine the duties of those they direct, do performance reviews, recommend discipline or make award recommendation for these employees." Id.

      Thus, based on the examination of the duties of the incumbents of the ESS position, the RD determined that "there [wa]s no evidence" that the incumbents "meet any of the supervisory indicia." Id. at 23. The RD determined, therefore, that the incumbents of the ESS position should be included in the bargaining unit represented by the Union because they are not supervisors within the meaning of § 7103(a)(10) of the Statute.

III.          Agency's Application

A.     The incumbents of the Physical Security Specialist
positions and Electronics Technician position [n4] 

      With respect to the incumbents of the PSS, PD #8B349; PSS, PD #8B356; and ET positions, the Agency contends that the RD's decision raises an issue for which there is an absence of precedent. In this regard, the Agency states: [ v58 p173 ]

There are few cases on the issue of national security, and none that directly relate to the preservation of the economic and productive strength of the United States. Furthermore, there are no precedents that address the increase[d] importance of security in light of recent terrorist attacks on the United States. The entire concept of security in the Federal government has been changed by the bombing of the Federal building in Oklahoma City in 1995 and the attacks on the World Trade Center and the Pentagon on September 11, 2001. The Authority has issued no decisions reflecting those events.

Application at 4.

      According to the Agency, "[t]here is no doubt that the incumbents of these positions are engaged in security work[;]" "[t]he only real question is whether these employees are engaged in security work that directly affects national security." Id. at 6, 8. The Agency contends that, despite the RD's "recognition of SSA's role in the economy and the implication of any breaches relating to blank Social Security cards or access to buildings that contain very sensitive records," the RD "faile[d] to thoroughly consider the national security implications." Id. at 9. The Agency asserts that, if the computers of the NCC were destroyed or disrupted, "40 million people would be delayed in receiving their [s]ocial [s]ecurity checks" and, without information from the NCC, the checks issued by the SSA field offices would be in "incorrect amount[s]." Id. at 11.

      The Agency disputes the RD's finding that, if the information contained in NCC and Security West facilities were lost, the Agency's back up recovery system would allow claims to be paid, even if many claims had to be processed manually. Id. at 9. The Agency asserts that its backup system "i[s] untested[]" and that "[a]ny attack that would destroy SSA's computer system would also likely result in a substantial loss of life, further impeding the ability to assure continuation of benefits." Id. The Agency explains that:

The fact that backups exist and claims could be paid manually does not change the security implications of a major disruption of the work. Backups do not relieve employees of their duties and responsibilities regarding security. While claims could be paid manually, they could not be paid accurately and efficiently. When 40 million people do not receive their Social Security checks on time or in the right amount, there is a tremendous impact [on] the economy of the United States.

Id. at 9.

      The Agency contends that the RD "downplay[ed] the importance o[f] safeguarding the blank [s]ocial [s]ecurity cards stored in the NCC, even though she concede[d] that the cards, if stolen, could be used to create a new identity." Id. at 10. The Agency argues that the protection of blank social security cards and numbers is directly related to national security because failure to protect those items could facilitate a terrorist attack on the United States. See id. 10-11.

      The Agency contends that the RD ignored the fact that improper access to its facilities "could also have devastating effects, which could go undiscovered for a long time." Id. at 11. The Agency asserts that all of its facilities have computers connected to the main computers in the NCC. The RD further asserts that it "is certainly conceivable" that a skilled computer expert, with unauthorized access to SSA field facilities, could tap into the information contained in the NCC and share the knowledge with terrorist organizations. Id.

B.     The incumbents of the Employee Services Specialist position

      With respect to the incumbents of the ESS position found not to be supervisors, the Agency contends that the RD misapplied established law in determining that the incumbents were not supervisors. [n5] 

      The Agency asserts that, in her factual findings, the RD found that the employees assign work. Id. at 12-13. The Agency argues that the RD's conclusion that the incumbents are not supervisors conflicts with her factual findings that they assign work.

      The Agency also argues that the incumbents effectively recommend discipline. See id. at 13. The Agency asserts that, according to the RD's factual findings, employees in the bargaining unit were disciplined based on the recommendations of incumbents of the ESS positions. See id. In this regard, the Agency cites United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, New Mexico, 44 FLRA 112 (1992). [ v58 p174 ]

IV.     Analysis and Conclusions

A.     We deny the application as it applies to the incumbents of the Employee Services Specialist position

      We deny the application for review as to the RD's determination that incumbents of the ESS position are not excluded from the bargaining unit on the basis of § 7112(b)(1) of the Statute. The RD found, based on the examination of the duties of the incumbents that "there [wa]s no evidence" that the incumbents "meet any of the supervisory indicia." RD's Decision at 23. The RD determined, therefore, that the incumbents of the ESS position are not supervisors within the meaning of § 7103(a)(10) of the Statute. The Agency claims that review is warranted because the RD misapplied established law.

      Upon examination of the record and the arguments presented, we find that the Agency has not demonstrated that review is warranted on the ground asserted. Accordingly, we deny this aspect of the application for review.

      In so doing, we reject the Agency's argument that the RD's conclusion that the incumbents are not supervisors conflicts with her factual findings that they assign work. The assignment of work is one of the supervisory indicia, if it involves the consistent exercise of independent judgment. See § 7103(a)(10). There is evidence in the record that the incumbents assign work. However, the evidence does not indicate that they consistently exercise independent judgment in so doing. Accordingly, while the RD appears to have erred in stating that the incumbents do not assign work, the Agency has not established that the RD erred in finding that there was no evidence that the incumbents meet any of the supervisory indicia--specifically, that they consistently exercise independent judgment in assigning work.

B.     We grant the application as it applies to the incumbents of the Physical Security Specialist positions and Electronics Technician position

      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 or 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.

      We find that the Agency has demonstrated that, as to the incumbents of the PSS, PD #8B349; PSS, PD #8B356; and ET positions, the RD's decision raises an issue for which there is an absence of precedent. The RD, in reaching her conclusion as to these incumbents, relied on DOJ and Oak Ridge. The RD found, and there is no dispute, that the incumbents are engaged in "security work" within the meaning of § 7112(b)(6). The Agency contends that the RD erred by failing to find that the security work performed by the incumbents directly affects "national security" within the meaning of meaning of § 7112(b)(6).

      In Oak Ridge, the Authority defined "national security" within the meaning of § 7112(b)(6) to include those sensitive activities of the government that are directly related to the protection and preservation of the economic and productive strength of the United States. 4 FLRA at 655-56. No case is cited in which there was an assertion, such as here, that the disputed incumbents perform security work that is directly related to the protection and preservation of the economic and productive strength of the United States.

      Accordingly, we grant review in these circumstances. Specifically, the parties are requested to address the following questions:

(1)     Whether, and how, the security work performed by the incumbents of the PSS, PD #8B349; PSS, PD #8B356; and ET positions involves "national security" as that phrase is defined in Oak Ridge, 4 FLRA at 655-56.
(2)     If the security work performed by the incumbents involves national security, then does it "directly affect" national security, as that phrase is defined in Oak Ridge, 4 FLRA at 655-56, and, if so, how?

      In accordance with 2422.31(g) of the Authority's Regulations, the parties are directed to file briefs on the issue set forth. This issue is also likely to be of concern to the federal sector labor-management relations community in general. Accordingly, the Authority will publish a Federal Register Notice inviting interested persons to address the issue. Copies of the Notice may be obtained from the Authority's Case Control Office upon publication. Briefs will be considered if received by the date set forth in the Federal Register Notice. Placing submissions in the mail by this deadline will not be sufficient. Extensions of time to submit briefs will not be granted. Briefs should be directed to:

Director, Case Control Office
Federal Labor Relations Authority
607 14th St., NW., Suite 415
Washington, D.C. 20424-000 [ v58 p175 ]

V.     Order

      We deny the Agency's application for review as it applies to the Employee Services Specialist, GS-301-11 position. We grant the Agency's application for review as it applies to the: (1) Physical Security Specialist, GS-080-11 (Position Description #8B349); (2) Physical Security Specialist, GS-080-11 (Position Description #8B356) and (3) Electronics Technician, GS-856-11 positions.



Footnote # 1 for 58 FLRA No. 42 - Authority's Decision

   Three employees encumber the ET positions; one employee encumbers the PSS, PD #8B349 position; two employees encumber the PSS, PD #8B356 positions; and two employees encumber the ESS positions.


Footnote # 2 for 58 FLRA No. 42 - Authority's Decision

   The RD also determined that Authority precedent precluded her from clarifying the bargaining status of another position, the Physical Security Specialist, GS-080-9 position, because it was vacant.


Footnote # 3 for 58 FLRA No. 42 - Authority's Decision

   The RD also concluded that the incumbents of the four positions are not engaged in investigation or audit functions within the meaning of § 7112(b)(7) of the Statute. The RD further concluded that the incumbents of the ESS position are not engaged in security work that directly affects national security within the meaning of § 7112(b)(6) and are not management officials within the meaning of § 7112(b)(1). The Agency does not seek review of these determinations. Accordingly, we do not address them here. In addition, while the application for review refers to the incumbents of th