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

[ v59 p137 ]

59 FLRA No. 26

SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
(Petitioner/Labor Organization)

WA-RP-90035

_____

DECISION
ON APPLICATION FOR REVIEW

September 12, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      In Social Security Administration, Baltimore, Md., 58 FLRA 170, 174 (2002) (SSA), the Federal Labor Relations Authority (the Authority), under § 2422.31(c) of its Regulations, granted in part and denied in part an application for review of the Acting Regional Director's (RD's) decision clarifying a bargaining unit. The application for review was filed by the Social Security Administration, Baltimore, Md. (the Agency or SSA).

      As relevant here, the RD determined that certain employees were not excluded from the bargaining unit under § 7112(b)(6) of the Federal Service Labor-Management Relations Statute (the Statute). Section 7112(b)(6) excludes from a bargaining unit "any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security[.]" The RD found that the employees were engaged in security work, but that the security work they perform does not "directly affect national security" within the meaning of § 7112(b)(6).

      The Authority granted review and published a Federal Register Notice requesting briefs addressing:

whether, and how, the security work performed by the incumbents of 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 "directly affects national security" as that phrase is defined in Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644, 655-56 (1980) (Oak Ridge)

.67 Fed. Reg. 71175, 71176 (Nov. 29, 2002); SSA, 58 FLRA at 174.

      The American Federation of Government Employees, AFL-CIO (the Union or AFGE) and the Agency filed briefs. The American Federation of State, County and Municipal Employees, Council 26, AFL-CIO (AFSCME), National Association of Agricultural Employees (NAAE), Department of Defense (DoD), Office of Personnel Management (OPM), and Department of the Treasury (Treasury) filed timely amicus briefs. [n2] 

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. The disputed positions in this case are in the Office of Protective Security, 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 [ v59 p138 ] 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. SSA issues new social security numbers to people placed in the Witness Protection Program, and maintains information which reflects their former identity, new identity, as well as former location and new location, and why they were placed in the program.

      As relevant here, the Union sought to clarify the bargaining unit to include six incumbents in three positions: (1) Electronics Technician, GS-856-11 (ET); (2) Physical Security Specialist, GS-080-11 (Position Description #8B349) (PSS, PD #8B349); and (3) Physical Security Specialist, GS-080-11 (Position Description #8B356) (PSS, PD #8B356). [n3] 

      The RD concluded that the incumbents in the three positions should be included in the unit. 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 Statute.

      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) and Department of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644 (1980) (Oak Ridge). 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 14.

      In Oak Ridge, the Authority defined "national security" as:

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, including the security of the Government in domestic and foreign affairs, against or from espionage, sabotage, subversion, foreign aggression, and any other illegal acts which adversely affect the national defense.

Id. at 655-56. In Oak Ridge, the Authority also stated that the phrase "`directly affects' [means] a straight bearing or unbroken connection that produces a material influence or [alteration]." Id. at 655.

      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 due to a tragedy.

      The RD stated that "[o]ne in six Americans receives a [s]ocial [s]ecurity 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 [N]ation'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. In this regard, the RD stated that "[i]t is a criminal offense to buy or sell blank social security cards, produce counterfeit social security cards, steal another identity using a social security number, or commit any type of fraud through use of a social security number." 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 tragedy." Id. at 15-16. The RD found that "the evidence showed that while [ v59 p139 ] 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 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 FBI, 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 (LAN) 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 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. at 18. The RD further concluded that "[wh]ile they may occasionally work with classified documents, they do not have regular access to them." Id.

      The RD summarized her findings and conclusions as to the incumbents of the PSS, PD #8B349; PSS, PD #8B356; and ET positions 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. [ v59 p140 ]

Id.

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

III.      Authority's Grant of the Agency's
           Application for Review

      As stated above, the Authority granted the Agency's application for review and published a Federal Register Notice requesting briefs addressing whether, and how, the security work performed by the incumbents of the Physical Security Specialist and Electronics Technician positions "directly affects national security" as that phrase is defined in Oak Ridge, 4 FLRA at 655-56.

IV.     Positions of the Parties

A.      Agency

      The Agency contends that the employees should be excluded from the unit because the security work that they perform "directly affects national security" within the meaning of § 7112(b)(6).

      The Agency asserts that the Authority should clarify that statutes and executive orders enacted since its decision in DOJ must be taken into account in determining whether security work performed by an incumbent "directly affects national security" within the meaning of § 7112(b)(6). In this regard, the Agency contends that recently enacted legislation and recently promulgated Executive Orders demonstrate that national security includes the protection of activities, including critical infrastructure systems and assets, that are necessary for the United States to function in a stable manner. In support, the Agency cites the Homeland Security Act of 2002, §§ 891, 892, and 1706; the Critical Infrastructures Protection Act of 2001, 42 U.S.C. § 5195c, incorporated as § 1016 of the USA Patriot Act; Executive Order 13228, 66 Fed. Reg. 51816 (Oct. 8, 2001); and Executive Order 13138, 64 Fed. Reg. 53879 (Sept. 30, 1999). See SSA Brief at 9-13.

      Noting the definition of "national security" in Oak Ridge, the Agency requests the Authority to clarify "that the term `national security' include[s] activities related to the protection and preservation of the economic and productive strength of the United States from illegal acts that did not adversely affect the ability of the United States to defend itself, or that the term `national defense' include[s] defense against acts of terrorism or destruction of `critical infrastructure.'" Id. at 14 n.4.

      The Agency argues that the incumbents perform security work that enables the Agency to perform essential functions that are critical to the economic strength of the United States. The Agency also asserts that the security work performed by the incumbents is identified as "promoting homeland security" in the Homeland Security Act. Id. at 14.

      In addition, the Agency argues that the Authority should hold that an agency determination that a position is "sensitive" establishes as a matter of law that the position "directly affects national security" within the meaning of § 7112(b)(6). Id. at 5. The Agency notes that, at the time of the proceeding before the RD, the three positions were designated as "nonsensitive," but that it is considering whether these and other Agency positions should be redesignated as "sensitive" in light of the passage of the Homeland Security Act of 2002. See id. at 2-3.

B.      Union

      The Union contends that, when the test in Oak Ridge is applied in this case, the security work performed by the incumbents of the three positions does not "directly affect national security" within the meaning of § 7112(b)(6). Consequently, the Union asserts that the Authority should affirm the RD's decision that the incumbent employees are not excluded under § 7112(b)(6).

      Further, the Union contends that Congress did not intend § 7112(b)(6) to be broadly applied. The Union asserts that § 7112(b)(6) sets forth narrower requirements for the exclusion of an employee from the bargaining unit on the basis of national security than the requirements for the exclusion set forth in Executive Order 11491. The Union further argues that in Oak Ridge, the Authority found that § 7112(b)(6) should be read narrowly because that statutory exclusion operates to deprive employees of the right to union representation and to engage in collective bargaining. Union Brief at 5.

      In addition, the Union maintains that § 7112(b)(6) should not be construed broadly to include economic impact based on the post-legislation events of September 11, 2001. The Union argues that, if Congress desires to broaden the meaning of § 7112(b)(6), it can pass legislation to modify the Statute. [ v59 p141 ]

V.      Amicus Briefs

A.      Agency Briefs

1.      DoD

      DoD contends that the employees should be excluded from the unit because the security work they perform "directly affects national security" within the meaning of § 7112(b)(6). DoD contends that the Authority should apply or modify the test set forth in Oak Ridge to take into account relevant statutes and executive orders recently enacted or issued.

      DoD agrees with the Authority's definition and application of the term "security work," as set forth in DOJ, and also agrees, with one caveat, with the Authority's definition and application of the term "directly affects." Citing United States Department of the Army, Army Ordnance Missile and Munitions Center and School, Redstone Arsenal, Ala., 35 FLRA 987 (1990), DoD asserts that the term "directly affects" should include "those situations whereby the adverse effect to national security is foreseeable and a natural consequence even though some matters are yet to occur to further those adverse effects." DoD Brief at 13.

      With respect to the definition of "national security," DoD contends that Oak Ridge is in error to the extent that it implies that only those employees who have security clearances perform work that affects national security. According to DoD, an employee "may still do security work that directly affects national security, whether they have a security clearance or not." Id. at 14. DoD argues that the focus should be on the type and nature of the work performed, not on whether the employee has a security clearance or whether the position has been designated as sensitive.

      DoD also asserts that the term "national security" should be construed to include protecting the lives of citizens, as well as protecting and preserving critical infrastructure. Additionally, noting that in DOJ the Authority took into account Executive Orders issued after the enactment of the Statute and the issuance of Oak Ridge, DoD asserts that the Authority should now similarly consider recently enacted legislation and recently promulgated Executive Orders (the same legislation and Executive Orders cited by SSA). In this regard, DoD contends that "the protection and preservation of critical infrastructure directly protects the economic and productive strength of the United States from foreign aggression and from terrorism[,]" and therefore clearly constitutes security work which directly affects the national security. Id. at 19.

      In addition, DoD asserts that the Authority should defer to an executive branch agency determination that an incumbent of a position performs "security work which directly affects national security" within the meaning of § 7112(b)(6) when that agency can articulate a rational basis for its determination. Id. at 20.

2.     OPM

      OPM contends that the test in Oak Ridge for determining what constitutes "security work which directly affects national security" within the meaning of § 7112(b)(6) is outdated and that the Authority should reevaluate the test.

      In addition, OPM contends that the "Authority does not have the appropriate level of expertise to make an informed judgment of what constitutes `national security' [in § 7112(b)(6)], and th[at] Congress has not delegated this legal authority to the FLRA." OPM Brief at 16. OPM argues that, "although the FLRA has an unquestioned role in determinations concerning bargaining units, the interpretation by the FLRA of `national security' in § 7112(b)(6) is outside its permissible mandate." Id.

      Furthermore, OPM contends that the Authority should broaden its definition of the term "national security" by taking into account the plain language of § 7112(b)(6) and the contemporary definitions of that term set forth in relevant statutes and executive orders recently enacted or issued. Id. at 7. In this regard, OPM notes the same recently enacted legislation and recently promulgated executive orders cited by SSA, and notes their emphasis on protecting the Nation's critical infrastructure.

      Finally, OPM contends that, in recasting the definition of "national security," the Authority should accord considerable deference to the views of Federal agencies that exercise national security functions. See id. at 5.

3.      Treasury

      Treasury contends that, under Oak Ridge, the security work performed by the incumbents of the three positions "directly affects national security" within the meaning of § 7112(b)(6). Consequently, Treasury asserts that these employees should be excluded from the bargaining unit.

      Further, Treasury contends that the test set forth in Oak Ridge for determining what constitutes "security work which directly affects national security" within the [ v59 p142 ] meaning of § 7112(b)(6) must be updated to reflect the intent of Congress and current events.

      Treasury proposes that the Authority should broadly construe the term "national security" in § 7112(b)(6) "to include expressly those `activities which are designed to prevent terrorist attacks and to reduce the vulnerability of the United States to terrorists attacks,'" which Treasury asserts is consistent with the wording of Section 101 of the Homeland Security Act. Treasury Brief at 8.

      In addition, Treasury contends that the Authority should not link national security to the presence or absence of classified information. Finally, Treasury asserts that the Authority should defer to an agency determination that an incumbent of a position performs "security work which directly affects national security" within the meaning of § 7112(b)(6).

A.     Union Briefs

1.      AFSCME

      AFSCME contends that, when the test in Oak Ridge is applied in this case, the security work performed by the incumbents of the three positions does not "directly affect national security" within the meaning of § 7112(b)(6) of the Statute. Consequently, AFSCME asserts that the Authority should affirm the RD's decision that the incumbent employees are not excluded under § 7112(b)(6).

      Further, AFSCME argues that Oak Ridge sets forth the correct test for determining whether employees should be excluded from a unit under § 7112(b)(6) and that the Authority should not expand that test. AFSCME argues that, while the incumbent employees' work concerns the security of, and access to, the Agency databases and physical facilities that are "crucial to receipt of many Americans' government benefits," that work is "not directly concerned with the protection of the Nation from internal subversion and foreign aggression." AFSCME Brief at 2.

2.      NAAE

      NAAE contends that the security work performed by the incumbents of the three positions does not "directly affect national security" within the meaning of § 7112(b)(6) of the Statute. Consequently, NAAE asserts that the Authority should affirm the RD's decision that the incumbent employees are not excluded under § 7112(b)(6).

      Further, NAAE asserts that Oak Ridge and DOJ set forth the correct test for determining whether employees should be excluded from a unit under § 7112(b)(6) and the Authority should not expand that test. NAAE argues that Congress intended the Authority to narrowly construe § 7112(b)(6). Citing § 7101(a) of the Statute, NAAE states that Congress has determined that representation by labor organizations and collective bargaining are in the public interest. NAAE adds that Congress' intent in enacting § 7112(b)(6) does not change over time. See NAAE Brief at 11.

      In addition, NAAE contends that in construing § 7112(b)(6), the Authority should consider, among other factors, the level of an employee's security clearance and the nexus between an employee's access to sensitive information and any harm to the Nation's defense of its economic or productive well-being that could flow from its misuse. NAAE adds that, in construing § 7112(b)(6), the Authority should exercise caution in excluding an employee from the bargaining unit on the grounds that the employee performs work that directly affects the economic and productive strength of the Nation. In this regard, NAAE asserts that, arguably, every Federal employee is engaged in some activity that will have some effect upon the economic and productive strength of the Nation.

VI.      Analysis and Conclusions

A.     The Statutory Framework

      Section 7105(a)(2)(A) of the Statute states that the Authority shall determine the appropriateness of units for labor organization representation under § 7112 of the Statute. Section 7112(a) reiterates that the Authority shall determine the appropriateness of any unit, and § 7112(b) excludes from bargaining units certain categories of employees. Specifically, as relevant here, § 7112(b)(6) excludes from a bargaining unit "any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security[.]" 5 U.S.C. § 7112(b)(6) (emphasis added).

      In implementing its responsibilities under § 7112(b) of the Statute to determine whether particular employees are excluded from bargaining units, the Authority applies its regulations set forth at 5 C.F.R. Part 2422. Under those regulations, the parties have the opportunity to make factual and legal arguments on the record as to why particular employees should be included in or excluded from a bargaining unit. In resolving applications for review of Regional Director determinations, the Authority makes its determinations by applying Authority precedent to the record evidence and arguments presented. The Authority bases bargaining [ v59 p143 ] unit eligibility determinations on testimony as to an employee's actual duties at the time of the hearing rather than on duties that may exist in the future. See United States Dep't of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1377 (1990). Bargaining unit eligibility determinations are not based on evidence such as written position descriptions or testimony as to what duties had been or would be performed by an employee occupying a certain position, because such evidence might not reflect the employee's actual duties. See id.

      It is undisputed by the parties that the Authority has jurisdiction to resolve the unit status of the employees at issue in this case. In this regard, we note that, in enacting the Statute, Congress also addressed the matter of national security in § 7103(b) of the Statute. There, Congress stated:

(b)(1) The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that--
     (A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and
     (B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.
(2) The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.

      No such order applies in the instant case. Unlike § 7103(b) of the Statute, which addresses agencies or other components as a whole, § 7112(b)(6) is limited to whether particular employees may be included in bargaining units. Congress gave the Authority the responsibility to make determinations under § 7112(b)(6). Accordingly, we will first consider the legal standard to apply and then apply that standard to the record in this case.

B.     The Legal Standard

      In 1980, shortly after the enactment of the Statute, the Authority considered the meaning of § 7112(b)(6) in its decision in Oak Ridge. The Authority stated that, in order to exclude an employee from a unit under this section, an agency "must show (1) that the individual employee is engaged in the designated work, and (2) that the work directly affects national security." Oak Ridge, 4 FLRA at 655. After stating that the terms "security work," "directly affects," and "national security" are not defined in the Statute, the Authority applied dictionary definitions to the terms "security work" and "directly affects."

      The Authority defined "security work" as including "the design, analysis, or monitoring of security systems and procedures[,]" but not including "work involving mere access to and use of sensitive information and material." Id. The Authority defined "directly affects" as "a straight bearing or unbroken connection that produces a material influence or [alteration]." Id.

      With respect to the term "national security," the Authority noted various statutes, executive orders, regulations, and judicial decisions comprising the "complex legal framework surround[ing] `national security' in the context of Government employment." Id. Taking into account this framework, the Authority defined the term "national security" in § 7112(b)(6) 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, including the security of the Government in domestic and foreign affairs, against or from espionage, sabotage, subversion, foreign aggression, and any other illegal acts which adversely affect the national defense.

Id. at 655-56.

      In 1997, the Authority revisited the meaning and application of the phrase "security work which directly affects national security" in § 7112(b)(6) when it issued its decision in DOJ. In DOJ, the Authority modified Oak Ridge in part and determined that an employee is engaged in "security work" within the meaning of § 7112(b)(6) 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.

      The Authority also examined the scope of the term "national security" and held that the work of employees of civilian, as well as military, agencies may constitute security work which directly affects national security within the meaning of § 7112(b)(6). DOJ, 52 FLRA at [ v59 p144 ] 1098-1100. In so doing, the Authority took into account several executive orders dealing with national security that were promulgated after the enactment of § 7112(b)(6). See id. The Authority also reviewed the definition of "national security" that had been used in Oak Ridge and found that this definition "was derived from, and is consistent with, the use of the same term in relevant authorities[,]" and that it would "continue to apply this definition in determining whether the work performed in an agency involves `national security.'" Id. at 1100-01 (citations omitted).

      In the case before us, the Authority granted review to determine whether, and how, the security work performed by the incumbents directly affects national security. In granting review, the Authority noted that no case had been 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. SSA, 58 FLRA at 174.

      Just as the Authority did in DOJ, we believe it is appropriate here to take into account executive orders and statutes that have been promulgated or enacted since the enactment of the Statute. These executive orders and statutes, referenced below, are relevant in examining the scope of the term "national security" in § 7112(b)(6), particularly as they apply to the protection and preservation of the economic and productive strength of the United States.

      Executive Order 13138, 64 Fed. Reg. 53879 (Sept. 30, 1999) provides, in relevant part: "Certain national infrastructures are so vital that their incapacity or destruction would have a debilitating impact on the defense or economic security of the United States. These critical infrastructures include . . . continuity of government." The Critical Infrastructure Protection Act, 42 U.S.C. § 5195c(b), sets forth the finding of Congress that "[t]he information revolution has transformed the conduct of business and the operations of government as well as the infrastructure relied upon for the defense and national security of the United States." In § 5195c(e), Congress defined "critical infrastructure" as the "systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters."

      In addition, § 5195c(c) provides that it is the policy of the United States government "that any physical or virtual disruption of the operation of the critical infrastructures of the United States be rare, brief, geographically limited in effect, manageable, and minimally detrimental to the economy, human and government services, and the national security of the United States." Further, in § 891 of the Homeland Security Act, Congress found that: "The Federal Government collects, creates, manages, and protects classified and sensitive but un-classified information to enhance homeland security."

      In our view, these provisions are properly taken into account as part of the complex legal framework surrounding the meaning of the term "national security" in § 7112(b)(6). As set forth in Oak Ridge and DOJ, "national security" entails, among other things, Government activities directly related to the protection of the economic and productive strength of the Nation, including the security of the Government from sabotage. There can be no doubt that such activities clearly include protecting the Nation's critical infrastructure, as defined in the authorities discussed above, as well as defending the Nation against terrorist activities. As so clarified, we reaffirm the definition of "national security" set forth in Oak Ridge.

      Additionally, we note that with respect to the meaning of the term "directly affects" in § 7112(b)(6), the Authority stated in Oak Ridge that "[a]n ordinary meaning of `directly affects' would be a straight bearing or unbroken connection that produces a material influence or [alteration]." Oak Ridge, 4 FLRA at 655 (citation omitted). DoD asserts that the term "directly affects" should be construed, as it was by "inference" in Redstone Arsenal, to include "those situations whereby the adverse effect to national security is foreseeable and a natural consequence even though some matters are yet to occur to further those adverse affects." DoD Brief at 13. In our view, the Authority's decision in Redstone Arsenal is consistent both with § 7112(b)(6) and with the definition of the term "directly affects" set forth in Oak Ridge. Accordingly, we will continue to apply the Oak Ridge definition in determining whether security work "directly affects" national security.

      DoD argues that Oak Ridge is in error to the extent that it implies that only those employees who have security clearances perform work that affects national security. See DoD Brief at 14. According to DoD, employees "may still do security work that directly affects national security, whether they have a security clearance or not." Id. DoD argues that the focus should be on the type and nature of the work performed, not on whether the employee has a security clearance or whether the position has been designated as sensitive. [ v59 p145 ]

      We agree with DoD that in determining whether § 7112(b)(6) applies to any particular employee, the focus must be on the type and nature of the work performed. We also agree that employees may perform security work that directly affects national security, irrespective of whether they have a security clearance. However, whether an employee has a security clearance and/or occupies a position designated as sensitive are significant factors in making a determination under § 7112(b)(6). E.g., United States Dep't of the Army, Corps of Engineers, United States Army Engineers Research Development Center, Vicksburg, Miss., 57 FLRA 834 (2002) (employees with highest security classification in DoD and who have access to classified information concerning matters of national security were excluded from unit). [n4] Nevertheless, the absence of such factors does not automatically compel a conclusion that § 7112(b)(6) is inapplicable in a particular situation. [n5] Rather, just as with other bargaining unit eligibility determinations, determinations under § 7112(b)(6) are to be based on the entire record as presented by the parties and developed during the representation proceeding. [n6] In sum, consistent with the Authority's exclusive jurisdiction to make appropriate unit determinations, including the resolution of questions concerning the bargaining unit status of employees, given to it by Congress, the Authority resolves these matters on a case-by-case basis by applying the statutory criteria to the record developed in each case. See, e.g., United States Dep't of HUD, Headquarters, 41 FLRA 1226, 1237 (1991). Accordingly, we next apply § 7112(b)(6) to the record in this case.

C.     Application of the standard in this case

      The disputed positions are located in the Office of Protective Security Services, Division of Security Program Services. This office provides security oversight, including 24-hour security, for all SSA facilities. The RD found that the incumbents of the positions perform "security work" within the meaning of § 7112(b)(6), and no party disputes this finding. The positions do not require a security clearance.

      As an initial matter, before examining the duties of the incumbents of the specific positions, we address the role of SSA in the Nation's economy and the RD's findings regarding the Agency's claim that there would be consequences to the Nation's economy if information contained in SSA's facilities were lost due to tragedy.

      We find that the protection of the Agency's facility and computer center involves protection of the economic strength of the Government from sabotage. The social security benefits that SSA provides are of great significance to the Nation's economic strength. As the RD stated, and the record shows, "[o]ne in six Americans receives a [s]ocial [s]ecurity benefit, and about 98 percent of all workers are in jobs covered by [s]ocial [s]ecurity." RD's Decision at 14. The RD also stated that social security benefits comprise "5 percent of the [N]ation's total economic output." Id. The RD 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.

      The RD rejected the Agency's claim that there would be consequences to the Nation's economy if [ v59 p146 ] information contained in SSA's facilities were lost due to tragedy. The RD reasoned that SSA's back up recovery system would allow claims to be paid, even if many claims had to be processed manually. See id. at 15-16.

      We find, contrary to the RD's determination, that disruption in the SSA's ability to process claims and make social security payments would have a serious adverse effect on the economic strength of the country. The record demonstrates, as argued by the Agency, that the fact that a back up recovery system exists and claims could be paid manually does not change the national security implications of a major disruption in the Agency's ability to process claims and make social security payments. See Application at 9. We agree with the Agency that "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.

      Next, we note that the RD's findings as to the duties of the incumbents of the specific positions are not in dispute. The RD found that the duties of the incumbents of the two PSS positions 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. The RD noted that the two PSS positions do not have security clearances.

      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 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 found that this information was sensitive, but not classified.

      The work of the incumbents of the two PSS positions includes the design, analyzing or monitoring of security systems for the security of, and access to, SSA's databases and physical facilities. These systems are directly related to the protection of the economic and productive strength of the Nation, including the security of the Government from sabotage, particularly its databases and physical facilities.

      Furthermore, the RD found that the duties of the incumbents of the ET position include participating in the design, installation and implementation of comprehensive security measures at SSA's most sensitive facilities, including closed-circuit television monitoring systems of the SSA. The incumbents also have access to, and the ability to adjust, the security systems for the SSA at these and other facilities and work with contractors as well as SSA management in providing guidance concerning technical security requirements.

      The work of the incumbents of the ET position includes the design, analyzing or monitoring of security systems for the security of, and access to, SSA's databases and physical facilities. These systems are directly related to the protection of the economic and productive strength of the Nation, including the security of the Government from sabotage, particularly its databases and physical facilities.

      In sum, the record shows, and we find, that the incumbents of the two PSS positions and the ET position perform work that involves the design, analyzing or monitoring of security systems for the security of, and access to, SSA's databases and physical facilities, and that these systems are directly related to the protection of the economic and productive strength of the Nation, including the security of the Government from sabotage, particularly its databases and physical facilities. We note in particular that although the incumbents of the PSS positions also sometimes perform other duties that do not affect national security, they do not lose their national security status simply because they are not engaged in matters related to national security all of the time. See, e.g., DOJ, 52 FLRA at 1102-03 (Authority found that the regular use of, or access to, classified information directly affects national security, even if that involvement with classified information "rarely" takes place). Therefore, consistent with the discussion set forth above, we find that the disputed employees are engaged in security work which "directly affects national security" within the meaning of § 7112(b)(6) of the Statute.

      Accordingly, we will direct the RD to clarify the bargaining unit to exclude these employees.

VII.      Order

      We direct the RD to clarify the bargaining unit to exclude the incumbents of 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 [ v59 p147 ]


Concurring opinion of Chairman Cabaniss:

      While I agree that the affected employees here should be excluded from bargaining unit membership status because of § 7112(b)(6), I write separately to address certain aspects of this case.

      First, I would exercise the discretion the Authority has, per § 2429.6 and 2429.26 of our regulations, to consider all briefs submitted in response to the Federal Register notice, even those not submitted in a timely manner. Although I do not condone an organization's failure to discover and comply with a notice published in the Federal Register specifically for the purpose of giving them fair opportunity to provide their views, in this case, given the importance of the issue and the lack of delay such consideration would have imposed, I would have the Authority consider all views submitted, including those in briefs submitted after the published deadline. Absent a negative impact upon our ability to consider and decide the issue in a timely fashion, which I do not find to be present, I see no legitimate reason for not exercising the discretion conferred by § 2429.6 and 2429.26 of our regulations and considering these submissions. While it is clear that some limit has to be imposed in order for the Authority to fulfill its adjudicatory function in a timely manner, absolute application of a deadline makes little sense when failing to do so would not delay resolution of the matter and only precludes us from considering views we thought important enough to solicit.

      Additionally, I find it necessary to issue a cautionary note regarding an issue indirectly before us in this case. I agree with footnote 5 of the majority decision, that footnote stating that we need not address the issue of whether the Authority, for purposes of determining whether a position directly affects national security, has the ability to look behind a position classification determination under E.O. 10450 regarding whether a position is "sensitive" such that the occupant of which could bring about a material adverse effect on national security. See also 5 Code of Federal Regulations Part 732, National Security Positions, which notes that a "national security position" (a predicate to being classified as a "sensitive" position) is a position the duties of which are related to certain activities that are "concerned with the preservation of the military strength of the United States" and require "regular use of, or access to, classified information." Id. at § 732.102.

      There is a potential tension between a dispute by the parties, as to whether an agency's designation of a position of "sensitive" does or does not reflect the actual facts of the situation, and whether the Authority as part of its factfinding process in representation cases can independently assess whether or not a position is actually "sensitive" in nature. Consistent with the Supreme Court's decision in United States Dep't of the Navy v. Egan, 484 U.S. 518 (1988), I would find that we have no ability to evaluate an agency's national security determination that a particular position is "sensitive" such that the occupant of which could bring about a material adverse effect on national security. Rather, E.O. 10450 places that responsibility in the heads of individual agencies and departments. Accordingly, the Authority is not in a position, in evaluating the factual record before it in representation cases, to examine an issue the responsibility for which has been reserved only for the position's agency or department head.


File 1: Authority's Decision in 59 FLRA No. 26 and Opinion of Chairman Cabaniss
File 2: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 26 - Authority's Decision

   Chairman Cabaniss' concurring opinion and Member Pope's opinion, concurring in part and dissenting in part, are set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 26 - Authority's Decision

   The Department of Justice (DoJ) filed an untimely amicus brief, filed outside of the time limit set forth in the Federal Register Notice, and requests that its amicus brief be considered by the Authority. DoJ also filed a request to present an oral argument in this case. NAAE filed an opposition to both DoJ's amicus brief and a request to present an oral argument. AFGE filed a request to submit a supplemental brief to address the arguments in DoJ's amicus brief. In addition, the National Treasury Employees Union (NTEU) filed an untimely amicus brief and requests that its amicus brief be considered by the Authority.

      The Federal Register notice specifically stated that "[e]xtensions of time to submit briefs will not [be] granted." 67 Fed. Reg. 71176. In addition, the record in this case is sufficient to resolve the issues presented. For these reasons, we have not considered the untimely filed amicus briefs. See, e.g., NMB, 56 FLRA 320, 320 n.3 (2000). As such, AFGE's request to submit a supplemental brief to address the arguments in DoJ's amicus brief is moot. Further, we deny the request to present oral argument because the record is sufficient to resolve the issue presented. See, e.g., United States Securities and Exchange Commission, Washington, D.C., 56 FLRA 312, 314 n.2 (2000); NTEU, 25 FLRA 1110, 1110 n.1 (1987).


Footnote # 3 for 59 FLRA No. 26 - Authority's Decision

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


Footnote # 4 for 59 FLRA No. 26 - Authority's Decision

   We note that in 5 C.F.R. Part 732, "National Security Positions," OPM has set forth certain requirements and procedures which each agency shall observe for determining national security positions pursuant to Executive Order 10450. For purposes of Part 732, OPM has defined the term "national security position" to include:

(1) Those positions that involve activities of the Government that are concerned with the protection of the nation from foreign aggression or espionage, including development of defense plans or policies, intelligence or counterintelligence activities, and related activities concerned with the preservation of the military strength of the United States; and
(2) Positions that require regular use of, or access to, classified information. Procedures and guidance provided in OPM issuances apply.

5 C.F.R. § 732.102(a).


Footnote # 5 for 59 FLRA No. 26 - Authority's Decision

   The Agency argues that the Authority should hold that if an agency determines, pursuant to E.O. 10450, that a position is "sensitive," such a determination establishes as a matter of law that the position "directly affects national security" within the meaning of § 7112(b)(6) and must therefore be excluded from a bargaining unit. SSA Brief at 5. However, as the Agency acknowledges, at the time of the proceeding before the RD the three positions involved in this case were designated as "nonsensitive." SSA Brief at 2-3. Accordingly, it is not necessary to consider this argument to determine the unit status of the employees in dispute. See DOJ, 52 FLRA at 1106 n.12 (in light of the Authority's other determinations in the case, it was not necessary