United States Department of Defense, Pentagon Force Protection Agency, Washington, D.C. (Agency) and Fraternal Order of Police DC Lodge 1, Defense Protective Service Labor Committee (Union/Petitioner) and United States Department of Defense, Pentagon Force Protection Agency, Washington, D.C. (Agency/Petitioner) and Fraternal Order of Police, DC Lodge 1, Defense Protective Service Labor Committee (Union)

[ v62 p164 ]

62 FLRA No. 42

UNITED STATES
DEPARTMENT OF DEFENSE
PENTAGON FORCE PROTECTION AGENCY
WASHINGTON, D.C.
(Agency)

and

FRATERNAL ORDER OF POLICE
DC LODGE 1
DEFENSE PROTECTIVE SERVICE
LABOR COMMITTEE
(Union/Petitioner)

and

UNITED STATES
DEPARTMENT OF DEFENSE
PENTAGON FORCE PROTECTION AGENCY
WASHINGTON, D.C.
(Agency/Petitioner)

and

FRATERNAL ORDER OF POLICE
DC LODGE 1
DEFENSE PROTECTIVE SERVICE
LABOR COMMITTEE
(Union)

WA-RP-06-0002
WA-RP-06-0022

_____

ORDER GRANTING
APPLICATION FOR REVIEW
AND REMANDING TO
REGIONAL DIRECTOR

September 28, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I.      Statement of the Case

      This consolidated case is before the Authority on an application for review filed by the Fraternal Order of Police, D.C. Lodge 1, Defense Protective Service Labor Committee (Union) under 5 C.F.R. § 2422.31. [n1]  The Union seeks review of the Regional Director's (RD's) Decision and Order (D&O) that: (1) dismissed the Union's petition to clarify the existing unit to include police officers located at the United States Department of Defense (DOD), Pentagon Force Protection Agency's (PFPA's or Agency's) Raven Rock, Pennsylvania Mountain Complex (RRMC); and (2) granted the Agency's cross-petition to exclude all police officers currently included in the existing unit because they are engaged in national security work within the meaning of § 7112(b)(6) of the Federal Service Labor-Management Relations Statute (Statute). The Agency filed an opposition to the Union's application. Pursuant to 5 C.F.R. § 2429.9, the American Federation of Government Employees (AFGE) requested, and received, permission to file an amicus curie brief.

      As explained below, we grant the application for review on the ground that there is a genuine issue over whether the RD failed to apply established law pursuant to 5 C.F.R. § 2422.31(c)(3)(i) and we remand this matter to the RD to apply established law, consistent with this decision.

II.     Background and RD's Decision

      The Union filed a petition in Case No. WA-RP-06-0002 seeking to reflect that the name of the employer of its existing unit of police officers within DOD had changed from the Defense Protective Service (DPS) to PFPA as a result of a May 2002 reorganization. The petition also sought to include in the unit approximately 158 previously unrepresented police officers located at the RRMC. The Agency filed a cross-petition in Case No. WA-RP-06-0022 seeking to exclude all of the police officers included in the existing unit, as well as the police officers located at the RRMC, pursuant to § 7112(b)(6) of the Statute on the basis that they are engaged in security work that directly affects national security.

      [ v62 p165 ] The RD found that the PFPA, which reports directly to the Office of the Secretary of Defense, was established in May 2002. D&O at 3. With its creation, the DOD's DPS was disestablished and the approximately 600 series AD-083 police officers of that organization and their functions were realigned to become the Pentagon Police Directorate (PPD), one of five directorates within the newly-formed PFPA. Id. at 2.

      According to the RD, the mission of the PFPA is "to provide force protection, security, and law enforcement, as required for the people, facilities, infrastructure and other resources at the Pentagon Reservation and for DOD activities and DOD-occupied facilities not under the jurisdiction of a Military Department within the National Capital Region (NCR)." [n2]  Id. at 3 (footnote omitted). As found by the RD, the mission of the PPD is "to promote high-quality law enforcement and security services, in order to provide a safe and orderly work environment for the DOD community in the NCR." Id. at 4 (footnote omitted). Before the RD, it was undisputed that the PFPA is now the employer of the employees in the Union's existing bargaining unit. Id.

      Regarding the Pentagon, the RD found that it is the headquarters of the DOD and houses approximately 25,000 military and civilian employees "who contribute to the planning and execution of the defense" of the United States. Id. at 3. The RD found that every major military operation involving the United States is planned or approved at the Pentagon. Id. The RD further credited testimony that the Pentagon is considered "one of the most at-risk installations in the world." Id. In addition to housing the Secretary of Defense, the RD noted that the Pentagon also houses the National Military Command Center (NMCC), which is the "command and communications center" for the defense of the United States. Id. The Pentagon is a closed facility and visitors must be pre-screened before gaining entry. Id.

      The mission of the RRMC is classified, but the facility "functions as the locale for government continuity of operations in the event of a national disaster." Id.

      As determined by the RD, all PPD police officers, including those at the RRMC, are assigned to one of three divisions within PPD: the Operations Divisions (Operations); the Special Operations Division (SOD); and the Professional Standards and Training Division (PSTD). Id. at 4. All PPD police officers have the official position title of "Police Officer." However, they occupy positions in one of five categories: Police Officer; Field Training Officer (FTO); Emergency Response Team (ERT) Officer; K-9 Officer; and Protective Services Unit (PSU) Officer. Id.

      At the hearing, testimony was provided by ten of those PPD police officers, including: two Operations officers assigned to the RRMC; one K-9 officer assigned to the Pentagon; two Field Training Officers (FTOs) assigned to the Pentagon; two ERT officers; one PSU officer; one Operations officer assigned to the Special Events Traffic Safety Unit (SETS); and one Operations officer assigned to the Pentagon. The parties stipulated that "the testimony of [these ten officers] will be representative of all the police officers in dispute and that their testimony will be used by the Regional Director as the basis for determination in the decision and order[.]" Tr. at 144. The RD concluded that, "[b]y entering into this stipulation, the parties have accepted an `all or nothing' outcome: either all of these employees are bargaining unit eligible, or they are all ineligible pursuant to [§] 7112(b)(6)." D&O at 2.

      Based on this testimony, the RD determined that all PPD police officers share certain job responsibilities. For instance, all PPD police officers are armed while on duty and have the authority to make arrests for violations of state or Federal law and are always responsible for "being on the lookout for suspicious individuals and/or activities[.]" Id. at 19. It is undisputed that all PPD police officers are required to maintain a secret security clearance. However, according to the RD, "the evidence is limited regarding [the police officers'] actual use of classified information in the course of performing their duties[.]" Id. at 19. Additionally, PPD police officers are responsible for protecting the outside perimeters of particular areas of the Pentagon. [n3] 

      As found by the RD, every PPD police officer is also required to undergo an extensive training program that includes training on local operating procedures, "vigilance, recognition and response procedures applicable to threats to the Pentagon Reservation, such as hazardous materials (including weapons of mass destruction) and suicide bombers." Id. at 18. As part of their hazardous material training, PPD police officers receive a "chemical protective ensemble[.]" Id. PPD [ v62 p166 ] police officers also receive "Pentagon familiarization training in order to give them an appreciation for the various forms of security that make up the mission of the PFPA, and to make them aware of the locations and vulnerabilities of sensitive assets within the Pentagon Reservation (such as the NMCC)." Id. PPD police officers also receive training regarding the handling of classified information. In particular, police officers learn how to recognize and safeguard classified information to which they would normally not have access, but with which they may come in contact in the course of their duties. Id.

      The RD also made findings concerning specific duties performed by police officers in the three divisions of PPD. First, the RD determined that uniformed Operations police officers working at the Pentagon control initial access to the building and operate x-ray machines to prevent explosives and contraband from entering the building. They also have traffic responsibilities, patrol the exterior areas of the Pentagon, including the parking lots, stop individuals engaged in prohibited picture-taking or other questionable activities, and file suspicious activity reports when necessary. Operations police officers also work in an Operations Center equipped with cameras situated around the Pentagon Reservation. Id. at 6.

      Second, the RD determined that uniformed SOD officers are responsible for PPD's security functions at the RRMC and are assigned to either stationary posts or patrol duty. The SOD also includes specialized programs, such as the ERT and the K-9 Program. ERT is a special weapons and tactics (SWAT) team, whose officers are "specially trained and equipped to handle the worst, most volatile, situations at the Pentagon Reservation, such as hostage situations and active shooters." Id. at 6-7. K-9 officers use specially trained dogs to detect explosives at the Pentagon. Id. at 7.

      Finally, the RD determined that the plainclothes PSU is responsible for protecting and expediting the movement of the Secretary of Defense, the Deputy Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the Deputy Chairman while they are on the Pentagon Reservation. Id. PSU officers have top security clearances, allowing them access to offices on the Secretary of Defense's floor and to the area just outside the personal offices of the Secretary and his Deputy. In addition, nearly half of PSU officers hold SCIF clearances. See id. PSU officers also have classified information related to the manner in which "the top four" -- the Secretary of Defense, the Deputy Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the Deputy Chairman of the Joint Chiefs of Staff -- would be evacuated from the Pentagon in the event of a catastrophe.

      Based on his factual determinations, the RD considered the Agency's contention that all of the police officers currently in the bargaining unit are ineligible for inclusion in a bargaining unit because they are engaged in security work that directly affects national security within the meaning of § 7112(b)(6) of the Statute. As described below, the RD agreed with the Agency, determining that the PPD police officers are engaged in "security work" that "directly affects national security." Id. at 18-20.

      The RD held that the disputed police officers are engaged in "security work" within the meaning of § 7112(b)(6) "by virtue of their access to classified information." Id. at 19. The RD explained: "In order to hold their positions, PPD Police Officers must obtain and maintain a `secret' security clearance that gives them access to classified information on an as needed basis, should appropriate circumstances arise." Id. In the RD's view, "[w]hile the evidence is limited regarding PPD Police Officers' actual use of classified information," "the definition of security work as used in [§] 7112(b)(6) is not conditioned `on any minimal amount of time for exposure to or access to classified material[.]'" Id. at 19-20.

      The RD also held that "the work performed by the PPD Police Officers directly affects `national security' within the meaning of [§ 7112(b)(6)]." Id. at 19. A number of considerations underlaid the RD's determination. In this connection, the RD held that, "[g]iven the nature of the DOD organizations located within the NCR/Pentagon Reservation, it is clear that they [the DOD organizations] are involved in national security, i.e., those sensitive activities of the government that directly concern the protection and preservation of the military strength of the United States." Id. at 18.

      The RD also considered the relationship between the duties performed by PPD police officers and the DOD organizations they are responsible for protecting. In this regard, the RD rejected the Union's contention that the PPD police officers' duties are limited to traditional law enforcement and crime prevention such as would be provided by any other Federal, state, or local uniformed police force. Instead, the RD determined that to the extent the PPD police officers' perform traditional law enforcement duties, this is done "as part of their overall responsibility for providing protection and security services to the DOD facilities, organizations and employees within the NCR under their jurisdiction." Id. In support, the RD cited the previously-described training [ v62 p167 ] that PPD police officers receive. In addition, the RD stated that no matter where PPD police officers are assigned, they are "always responsible for being on the lookout for suspicious individuals and/or activities that could constitute a threat to the Pentagon Reservation." Id. at 19. The RD also observed that PPD police officers must be able "to take quick and decisive action in the event such individuals/activities, or any other emergency situations (terrorist attacks, hostage situations, riots and/or demonstrations) are encountered." Id. 18-19. Depending on the nature of their particular assignment, the RD determined that the duties of PPD police officers "may also include": providing security to "the top four" officials at the Pentagon, or visiting dignitaries; working with a dog to detect explosives; inspecting delivery vehicles for prohibited items; ensuring that those accessing the Pentagon have proper clearance to do so; responding to security alarms throughout the Pentagon Reservation; participating in Random Anti-Terrorism Measures; patrolling outside areas of the Pentagon Reservation; and patrolling the exterior of areas inside the Pentagon to which PPD police officers do not normally have inside access. Id.

      Thus, the RD reasoned, the PPD police officers "provide, in effect, a first line of defense for the protection of the seat of the United States' military strength -- the DOD Headquarters organizations, personnel, and facilities located within the NCR, where every major military operation of this country is planned or approved." Id. at 19. Continuing, the RD stated, "it is clear from the record that the PPD Police Officers have direct responsibilities for the protection of the DOD Headquarters facilities and employees within the NCR, as well as visitors to those facilities." Id. Concluding, the RD held that "the work performed by the PPD Police Officers directly affects `national security' within the meaning of [§] 7112(b)(6)." Id. (citations omitted).

      Accordingly, the RD held that all PPD police officers -- those already in the unit, as well as those located at the RRMC-- are ineligible for inclusion in any bargaining unit under § 7112(b)(6) because they are engaged in security work that directly affects national security. Consequently, the RD dismissed the Union's petition to clarify the existing unit to include the police officers located at the RRMC, and granted the Agency's cross-petition to exclude all police officers currently included in the existing unit under § 7112(b)(6). Insofar as the existing bargaining unit consisted entirely of employees who have been found ineligible for inclusion in any bargaining unit pursuant to § 7112(b)(6), the RD concluded that the Union's certification must be revoked. Id. at 20.

      Following issuance of the RD's D&O, the parties informed the RD that there were approximately 60 police officers represented by the Union who were not assigned to the PPD. The Union filed a motion to amend the RD's D&O, or to reopen the hearing in order to present evidence with respect to the 60 positions. The RD denied the Union's motion.

III.     Positions of the Parties

A.      Union's Application for Review

      The Union requests review of the RD's decision on the grounds that the RD committed clear and prejudicial errors concerning factual matters, and that the RD failed to apply established law.  [n4]  The Union also asserts, generally, that the RD failed to consider the "actual job duties performed by the incumbents[.]" Application for Review at 4. In addition, the Union challenges the RD's denial of the Union's motion to amend the D&O, or reopen the hearing.

      With respect to the Union's motion, the Union asserts that the approximately 60 police officers represented by the Union who were not assigned to the PPD are not covered by the RD's D&O and there is no testimony in the record with respect to what these employees do. While acknowledging that the stated purpose of the Agency's cross-petition is to request "that the existing bargaining unit of Activity employees represented by the [Union] be clarified to exclude all employees in the [Police Officer] position[,]" id. at 6, the Union claims that the Agency verbally amended its petition at the hearing by stating that all of the disputed employees were located in the PPD. Id. at 7 (quoting Transcript (Tr.) at 22).

      The Union argues that review is warranted on the ground that the RD committed clear and prejudicial errors concerning substantial factual matters with respect to the use of representative testimony stipulated to by the parties. In this regard, the Union contends that the testimony of the ten representative witnesses "was representative of other police officers in the[] same position and not every police position as asserted by the RD." Id. at 11. As an example, the Union states that the testimony of ERT police officers is representative only of other ERT police officers, and the testimony of K-9 police officers is representative only of other K-9 officers. According to the Union, "[t]he RD committed prejudicial [ v62 p168 ] error by holding that a representative witness was representative of what all police officers in the bargaining unit would testify regardless of what position they encumbered." Id. In addition, the Union claims that the RD's "all or nothing" reading of the parties' stipulation, id. (quoting D&O at 2), constitutes a waiver of statutory rights under § 7112(b)(6) that is not "unequivocal, clear, and unmistakable." Id. at 12 (citation omitted).

      Further, the Union contends that the RD committed clear and prejudicial errors concerning substantial factual matters relating to the duties of the police officers. For example, the Union alleges that the RD placed "unreasonable emphasis[,]" id. at 4, on the hazardous material training and "chemical protective ensemble" that Pentagon police officers receive. Id. (quoting D&O at 5). Additionally, the Union asserts that Agency management witnesses were not competent to testify about the duties performed by police officers. The Union also disputes the RD's finding that the Pentagon is a closed facility and cites evidence in the record indicating that the outside of the Pentagon is accessible to the public. With respect to the interior of the Pentagon, the Union asserts that the RD ignored evidence that no PPD police officer can access the Naval Operations Center, the Air Force Operations Center, the Army Operations Center, the Defense Intelligence Agency, or the Joint Chiefs of Staff offices. Id. at 15 (citing Tr. at 47, 60). Further, the Union alleges that the RD ignored evidence that other agencies are responsible for performing duties related to terrorism and counter-terrorism. The Union also states that the RD's finding that the Pentagon is one of the world's most "at-risk" facilities is unsupported. Id. at 16-17 (citing D&O at 3). Further, the Union asserts that the RD disregarded evidence that police officers are not involved with chemical, biological, radiological, and nuclear materials, as well as that deliveries to the Pentagon are conducted at a Remote Delivery Facility (RDF) by contract personnel. See id. at 18. The Union also claims that the RD ignored evidence with respect to the RRMC. Further, the Union argues that the record evidence demonstrates that "no PPD [police] officer in the history of the existing unit has come into contact with classified material." Id. at 20.

      Citing a different ground for review, the Union asserts that review is warranted because the RD failed to apply established law. The Union concedes that the police officers are "by the very nature of their work, engaged in security work[.]" Id. at 33. However, the Union asserts that, even if employees are engaged in work involving security work that relates to national security, "they will not be excluded from a bargaining unit if their work does not produce a material influence on, or alteration to national security." Id. at 32-33 (citing United States Dep't of Agric., Food Safety & Inspection Serv., 61 FLRA 397, 402 (2005) (FSIS) (emphasis omitted)). The Union asserts that the duties of the PPD police officers do not have such a connection. See id. at 42. In support, the Union maintains that no police officer: accesses or makes regular use of classified material; has access to any SCIF; has access to top secret national defense information; regularly uses classified material; performs investigative duties in issuing security clearances; performs any duties in the development or approval of war plans; or designs or analyzes security systems or procedures. The Union also rejects the RD's apparent finding that the police officers are engaged in national security work by virtue of their security clearance and reasserts its claim that no bargaining unit member has ever accessed classified information. See id. at 38.

      Finally, asserting that the Authority has consistently stated that it bases unit determinations on the duties actually assigned to employees, the Union argues that the RD in the present case erroneously "focused on factors other than the [police officers'] work duties" in determining whether the police officers in the present case were engaged in security work that directly affects national security. Id. at 33. Specifically, the Union contends that, rather than look at the actual job duties performed by the incumbents, the RD modified the statutory standard for exclusion under § 7112(b)(6) by focusing his analysis on who occupies and visits the Pentagon and "the nature of the organizations occupying the Pentagon." Id. at 45 (emphasis omitted). The Union maintains that, when applying the statutory exclusion set forth in § 7112(b)(6), the Authority consistently "looks to whether there is a direct connection between the employee's duties and national security." Id. According to the Union, if the disputed employees are not engaged in the duties themselves, then the connection to national security can only be indirect. [n5] 

B.     Agency's Opposition

      The Agency asserts that the RD did not fail to apply established law. In this regard, the Agency claims that the RD correctly held that the Agency is involved in security work that directly affects national security. Moreover, the Agency asserts that the police officers are "directly involved" in the protection of the people, property, and facilities at the Pentagon, the RRMC, and the [ v62 p169 ] Agency's leased facilities, and that given the role of these facilities in "commanding and controlling every U.S. [m]ilitary operation worldwide, they directly affect the military strength of the United States." Opposition at 11. The Agency asserts that the Union has offered no testimony or evidence to counter the Agency's assertion that the organizations the police officers protect are involved in national security. See id. at 12.

      The Agency also contends that the RD properly held that the duties of the police officers are directly related to the preservation of the military strength of the United States and its national security. In support, the Agency claims that the police officers protect individuals who plan the national defense, individuals who execute the national defense, and equipment that is essential to the national defense. See id. at 16. As such, the Agency contends that the police officers "monitor security procedures" insofar as they investigate suspicious persons, conduct vehicle inspections, enforce prohibitions on photography and weapons, and conduct the evacuation of personnel. Id.

      In addition, the Agency claims that the RD properly held that police officers are engaged in security work by virtue of their access to classified and sensitive information. In support, the Agency cites the undisputed fact that police officers must maintain a secret security clearance and alleges that the Union failed to contest that police officers have access to classified material or can be exposed to classified material.

      Finally, the Agency asserts that the Union has failed to establish that the RD committed a clear and prejudicial error concerning a substantial factual matter. In this regard, the Agency argues that the record supports the RD's factual findings.

C.      AFGE's Amicus Curie Brief

      AFGE urges the Authority to amend its test for determining whether an employee is engaged in security work within the meaning of § 7112(b)(6) by including "an analysis of whether the duties of the position present a conflict with the interests of national security and whether that conflict should preclude an employee from inclusion in the bargaining unit." Amicus Brief at 2. AFGE states that in considering the applicability of other § 7112(b)(6) exclusions, such as those for supervisors and confidential employees, the Authority has "always implicitly or explicitly examined . . . whether the inclusion of particular employees in a bargaining unit would have some sort of detrimental or adverse impact upon either management or the interests of the bargaining unit." Id. at 4. AFGE argues that the Authority should apply a similar analysis when considering whether to exclude employees based on national security and states that there is "no demonstrable conflict" between the duties of the police officers in the present case and the interests of management, other employees, or national security. Id.

      AFGE also argues that the RD failed to apply established law when he determined that the police officers in this case were engaged in security work "solely on the basis of the officers' holding of `secret' security clearances." Id. at 5. AFGE argues that contrary to the RD's findings, at least three of the police officers did not have access to classified information. Acknowledging that the Authority has stated that holding a security clearance is a factor in determining whether an employee is engaged in security work within the meaning of § 7112(b)(6), AFGE asserts that the Authority has never held that a security clearance alone is sufficient to establish that an employee is engaged in security work. Since, according to AFGE, the only basis cited by the RD for finding that the employees were "engaged in `security work'" was his finding that the police officers have secret security clearances, AFGE urges the Authority to reverse the RD's finding as inconsistent with established precedent. Id.

      Finally, AFGE argues that the RD committed "prejudicial procedural error" when he determined that "agreement [by the parties] to the representative testimony of the ten police officers . . . equated to an agreement to an `all or nothing' outcome." Id. at 7 (quoting RD's Decision at 2). Even assuming the parties agreed to such an approach, AFGE asserts that the RD "cannot abdicate his responsibility to conduct a full and complete investigation based on the record as a whole." Id. at 7 (footnote omitted). According to AFGE, the record demonstrates that "police officers who are assigned to different locations and/or divisions have distinctly different duties" including "different levels of access to classified information and a different relationship to national security." Id. at 7-8. As such, AFGE contends that the RD "could have and should have made a determination that the testimony of each officer was representative of the other officers who worked in the same division and/or performed similar duties." Id. at 8 (emphasis omitted). AFGE urges the Authority to grant review on this point and remedy the RD's approach to the use of representative testimony in this case. [ v62 p170 ]

IV.     Discussion

A.     The RD did not commit a prejudicial procedural error.

      We construe the Union's challenge to the RD's denial of the Union's motion to amend the D&O, or reopen the hearing, as a claim that the RD committed a prejudicial procedural error. As indicated previously, the Union sought to introduce evidence concerning police officers represented by the Union who were not assigned to PPD, and whom the Union asserted were therefore not covered by the RD's D&O.

      Even if the RD committed a procedural error by denying the Union's motion, the Union has not established that such an error was prejudicial. The RD's D&O applies to all PPD police officers represented by the Union, as well as police officers located at the RRMC. D&O at 20. The RD's Order denying the Union's motion indicates that all but three or four of the employees at issue were police officers at the RRMC. See Order Denying Motion for Reconsideration and to Amend Decision & Order at 3. Testimony about RRMC police officers was part of the hearing record and the RD's findings. The Union has not claimed that any of the RRMC police officers, or any of the other three or four police officers working outside PPD, performed work that was different from that performed by the other representative witnesses.

      Moreover, the Union has not established that the RD committed a procedural error. As the RD stated in his Order, "when deciding representational issues based on a hearing, the Region relies on the information/evidence the parties to the proceeding place into the record to support their respective positions regarding those issues." Id. Accordingly, it was incumbent upon the parties to present or solicit evidence regarding the location of all of the police officers in its existing unit at the hearing. See, e.g., Dep't of Transp., FAA, SW Region, Tulsa Airway Facilities Sector, 3 FLRC 235, 243 (1975) (parties in a representation proceeding have "an equal responsibility to provide . . . all relevant information within their knowledge and possession whether or not the information supports their particular position"). The parties' failure to present or solicit such evidence does not establish that the RD committed a prejudicial procedural error by making his determination based on the available evidence presented at the hearing. Accordingly, we reject the Union's claim that the RD committed a prejudicial procedural error.

B.      The RD did not commit clear and prejudicial errors concerning factual matters.

      The Union disputes the weight given to the testimony of various witnesses by the RD, as well as the competency of management witnesses who testified with respect to the duties performed by police officers. Evaluating the weight afforded to witness testimony and the competency of those witnesses is within the discretion of the RD. See, e.g., Nat'l Credit Union Admin., 59 FLRA 858, 862 (2004) (disagreement over evidentiary weight not sufficient to find that RD committed a clear and prejudicial error concerning a substantial factual matter). Here, the RD's findings with respect to the police officers are supported by the record. The Union points to no contrary evidence that would controvert the matters it cites. Accordingly, we reject the Union's claim that the RD committed clear and prejudicial factual error based on the weight he afforded witness testimony and the competency of the management witnesses.

      Further, to the extent the Union challenges the RD's findings relating to the RD's conclusion that the PPD police officers are engaged in "security work," D&O at 19-20, we reject the Union's challenge. The Union asserts, in this regard, that the record evidence demonstrates that "no PPD [police] officer in the history of the existing unit has come into contact with classified material." Application for Review at 20. The Union misconstrues the RD's finding. The RD made no finding, and did not rely on the fact, that any police officer had ever accessed classified information. Instead, the RD found only that the police officers were authorized to access classified information by virtue of the fact that they hold security clearances.

      We also reject the Union's challenges to various other findings of the RD. In this regard, the Union contests the RD's determination that the Pentagon is a closed facility and that the Pentagon is one of the most at risk facilities of DOD. Additionally, the Union argues that the RD improperly failed to take notice of certain facts, such as the fact that PPD police officers do not have access to numerous facilities within the NCR; that PPD police officers do not engage in such duties as conducting surveillance, gathering intelligence, engaging in counterintelligence, investigating terrorist groups, maintaining or monitoring chemical or biological devices, maintaining camera systems, or maintaining x-ray machines; and additional similar facts that the Union argues the RD ignored. See id. at 7-31.

      [ v62 p171 ] With respect to the Union's contention that the Pentagon is not "closed," we note that whether the RD determined that the Pentagon was "closed" or open, the Union does not argue that unauthorized individuals can enter the Pentagon itself without being processed through security check points. As such, it is not clear how the RD's decision is in error, especially where even the Union concedes that any "DoD facility regardless of its nature with 300 or more employees is considered `closed.'" Id. at 13.

      Turning to the Union's assertion that the RD erred in finding that the Pentagon was one of the most "at-risk" military facilities, D&O at 3, the Union offers no evidence that the Pentagon is not one of the most "at-risk" DOD facilities. Moreover, even if the Union did offer contrary evidence, such evidence would not undermine the military importance of the Pentagon. In this respect, the RD relied upon the fact that any attack on the Pentagon could significantly impact our nation's military ability, not whether such attack was more likely at the Pentagon or other DOD facilities. Accordingly, we find with regard to this assertion that the Union has not shown that the RD committed a clear and prejudicial error concerning a substantial factual matter.

      To the extent the Union argues that the RD did not "take notice" of other evidence showing that PPD police officers are not engaged in security work, Application for Review at 17, we reject the Union's contentions on two grounds. First, as stated above, the Union concedes that PPD police officers are engaged in security work. Id. at 33. Second, the Union has failed to establish how the RD committed a clear and prejudicial error concerning a substantial factual matter where the Union is not challenging the underlying facts found by the RD to support his conclusions, and the record supports those factual findings. See, e.g., Nat'l Credit Union Admin., 59 FLRA at 862. Accordingly, for the reasons discussed above, we find that the Union has not shown that the RD committed clear and prejudicial errors concerning substantial factual matters.

C.      The RD failed to apply established law.

1.      The Authority's framework for evaluating exclusion claims under § 7112(b)(6).

      In § 7105(a)(2)(A) of the Statute, Congress delegated to the Authority the exclusive jurisdiction to determine the appropriateness of units for labor organization representation under § 7112 of the Statute. AFGE, Local 3723, 49 FLRA 1256, 1258 (1994). As relevant here, § 7112(b)(6) provides that a unit will not be considered appropriate if it includes "any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects the national security[.]"

      Under § 7112(b)(6)'s three-prong test, the RD must determine whether employees are: (1) engaged in security work that (2) directly affects (3) national security. 5 U.S.C. § 7112(b)(6). The Authority has previously defined each of these terms and explained how they are to be applied.

      First, with respect to the term "engaged in security work," the Authority has defined "security work" as "a task, duty, function, or activity related 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." Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644, 655 (1980) (Oak Ridge). Additionally, the term was modified when the Authority held that an employee is engaged in "security work" if the employee's position includes "the regular use of, or access to, classified information." United States Dep't of Justice, 52 FLRA 1093 (1997) (DOJ). Moreover, the Authority rejected an argument that the Statute required either an employee to have a security clearance, or that the employee's position be designated as "sensitive," in order for the employee to be excluded under § 7112(b)(6) of the Statute. Soc. Sec. Admin., Balt., Md., 59 FLRA 137, 144-45, 145 n.6. (2003) (Chairman Cabaniss concurring and Member Pope dissenting, in part) (SSA, Baltimore). Accordingly, in determining whether § 7112(b)(6) applies to a particular employee, "the focus must be on the type and nature of the work performed." Id. at 145. The possession of a security clearance is not in itself dispositive, but it is a "significant factor[]" in making such a determination. Id.

      Second, with regard to the term "directly affects," the Authority has defined this term to mean that the security work engaged in has a "straight bearing or unbroken connection that produces a material influence or [alteration]" on national security. SSA, Baltimore, 59 FLRA at 144; Oak Ridge, 4 FLRA at 655.

      Finally, with respect to the term "national security," the Authority has held that the term "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." SSA, Baltimore, 59 FLRA at 144; see also Oak Ridge, 4 FLRA at 655-56. In [ v62 p172 ] addition, the Authority has clarified that "such activities clearly include protecting the Nation's critical infrastructure . . . as well as defending the Nation against terrorist activities." SSA, Baltimore, 59 FLRA at 144.

2.      The RD failed to apply established law by not examining the specific duties of the various categories of police officers in reaching his § 7112(b)(6) determinations.

      The Authority bases bargaining unit eligibility determinations on testimony as to an employee's actual duties at the time of the hearing. See, e.g., United States Air Force, 82nd Training Wing, Sheppard Air Force Base, Wichita Falls, Tex., 61 FLRA 443, 445 (2006); SSA, Baltimore, 59 FLRA at 142-43. As stated by AFGE, the record demonstrates that "police officers who are assigned to different locations and/or divisions have distinctly different duties[.]" Amicus Brief at 7. For example, as set forth above, the duties of ERT officers are different from those of K-9 officers or PSU officers, just as the duties of police officers assigned to the Pentagon are different from the duties of police officers assigned to the RRMC.

      The Union now asserts that the RD erred "by holding that a representative witness was representative of what all police officers in the bargaining unit would testify [to] regardless of what position they encumbered" because that representative testimony "was representative of other police officers in their same positions and not every police position as asserted by the RD." Application for Review at 11; see also Amicus Brief at 7-8. The Union also asserts, generally, that the RD did not examine the actual duties of the disputed employees in applying the statutory test. See Application for Review at 4. We agree.

      In this connection, although the RD made specific findings with respect to the actual duties of the representative witnesses who testified at the hearing, he did not base his holdings on specific job duties when applying the statutory standard. In this regard, rather than consider the actual duties of the PPD police officers within each of the five different categories (Police Officer; FTO; ERT Officer; K-9 Officer; and PSU Officer), as they are employed at the locations involved, the RD instead made general conclusions with respect to all PPD police officers without reference to their actual duties. Specifically, the RD made the generalized findings that PPD police officers have "overall responsibility for providing protection and security services to the DOD facilities, organizations and employees within the NCR under their jurisdiction[,]" D&O at 18, and "provide, in effect, a first line of defense for the protection of the seat of the United States' military strength -- the DOD Headquarters organizations, personnel, and facilities located within the NCR, where every major military operation of this country is planned or approved." Id. at 19. Based on these generalized findings, and the further general observation that "it is clear from the record that the PPD [p]olice [o]fficers have direct responsibilities for the protection of the DOD Headquarters facilities and employees within the NCR, as well as visitors to those facilities[,]" id., the RD concluded that the work performed by the police officers directly affects national security.

      That the RD failed to base his bargaining unit eligibility determinations on an analysis of the actual duties of each category of PPD police officer is underscored by the RD's construction of the parties' stipulation. As discussed previously, the RD applied an "all or nothing" approach, stating: "[E]ither all of these employees are bargaining unit eligible, or they are all ineligible pursuant to 5 USC 7112(b)(6)." D&O at 2. However, the parties' stipulation simply confirmed that the employees who testified represented all other employees, not that duties of the representative employees should be considered together. To the extent that the RD's commitment to this "all or nothing" approach led the RD to bypass a detailed and particularized analysis of the duties of each category of PPD police officer, under the statutory standard, in making the RD's unit eligibility determinations, the RD erred.

      Accordingly, the case is remanded to the RD for clarification. Cf. Dep't of the Navy, Naval Computer & Telecomms. Area, Master Station-Atlantic, Base Level Communications Dep't, Reg'l Operations Div., Norfolk, Va., Base Communications Office-Mechanicsburg, 56 FLRA 228 (2000) (where RD failed to consider each of three statutory criteria for determining whether a unit was appropriate, case remanded to RD to consider all three factors and issue a decision consistent with those findings). On remand, the RD should examine and consider the actual job duties of each of the five categories of police officers in the different divisions, as they are employed at the locations involved, and analyze and explain with reference to these actual job duties whether the various police officer categories are excluded from bargaining unit eligibility under the criteria established pursuant to § 7112(b)(6). In so doing, the effect of the actual duties of each category of employee on national [ v62 p173 ] security, at the specific locations involved, must be evaluated to determine whether national security is "directly affect[ed.]" [n6]  Oak Ridge, 4 FLRA at 655.

V.     Order

      We grant the application for review. The case is remanded to the RD for further action consistent with this decision.



Footnote # 1 for 62 FLRA No. 42 - Authority's Decision

   Section 2422.31 of the Authority's Regulations provides, in pertinent part:

(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1)     The decision raises an issue for which there is an absence of precedent;
(2)     Established law or policy warrants reconsideration; or
(3)     There is a genuine issue over whether the Regional Director has:
     (i)      Failed to apply established law;
     (ii)     Committed a prejudicial procedural error; or
     (iii)     Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 2 for 62 FLRA No. 42 - Authority's Decision

   The NCR includes the Pentagon, 117 leased facilities, and the land and facilities of the RRMC. See D&O at 3.


Footnote # 3 for 62 FLRA No. 42 - Authority's Decision

   PPD police officers, however, normally do not have access to the interior of those areas, which include the offices of the Secretary of Defense, the Joint Chiefs of Staff, the Army Operations Center, the Navy Operations Center, the Air Force Operations Center, and the Defense Intelligence Agency. In addition, with the exception of approximately 5 PSU officers, see D&O at 11, PPD police officers do not have access to Sensitive Compartmented Information Facilities (SCIFs) except in "contingent circumstances[.]" Id. at 5.


Footnote # 4 for 62 FLRA No. 42 - Authority's Decision

   The Union concedes that by virtue of the personal security they provide to the Secretary of Defense and the Chairman of the Joint Chiefs of Staff, "the officers assigned to the [PSU] are engaged in security work which directly affects the national security." Id. at 28.


Footnote # 5 for 62 FLRA No. 42 - Authority's Decision

   The Union also requests that the Authority stay the RD's proposed decertification of the bargaining unit. See Application for Review at 47-48.


Footnote # 6 for 62 FLRA No. 42 - Authority's Decision

   We note that the Union has requested that the Authority "stay the . . . decertification[.]" Application for Review at 47-48. However, we find that such action is unwarranted as the Union has not set forth the required support for its stay request. In this regard, the moving party seeking a stay of a Regional Director decision must satisfy the requirements set forth by the Federal courts for granting stays. See Dep't of the Army, U.S. Army Aviation Missile Command, (AMCOM) Redstone Arsenal, Ala., 55 FLRA 640, 643-44 (1999). Thus, stay requests must address: (1) the likelihood that the moving party will prevail on the merits; (2) the prospect of irreparable injury to the moving party if relief is withheld; (3) the possibility of harm to other parties if relief is granted; and; (4) the public interest. The Union's request does not establish any basis for granting a stay under this framework. See id.

      Moreover, as noted by the RD in his D&O (at 20) and as pertinent here, any decertification is contingent either on the Union not filing an application for review, or