United States Department of Justice, Washington, D.C. (Agency) and American Federation of State, County and Municipal Employees, Local 3097 (Union/Petitioner)

[ v62 p286 ]

62 FLRA No. 52

UNITED STATES
DEPARTMENT OF JUSTICE
WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION OF STATE
COUNTY AND MUNICIPAL
EMPLOYEES, LOCAL 3097
(Union/Petitioner)

WA-RP-05-0077

_____

DECISION AND ORDER
ON REVIEW

November 27, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on an application for review filed by the Agency under § 2422.31 of the Authority's Regulations. [n2]  The Union filed an opposition to the Agency's application.

      The Union filed a petition seeking to clarify the unit status of four employees. The Regional Director (RD) determined that the employees are not engaged in security work that directly affects national security and, thus, that § 7112(b)(6) of the Federal Service Labor-Management Relations Statute (the Statute) does not bar their inclusion in a collective bargaining unit. In an order issued following the filing of the application for review, the Authority granted the application for review and deferred action on the merits of the application.

      For the reasons that follow, we conclude that the RD failed to apply established law with regard to three of the disputed positions. We deny the application for review in all other respects.

II.     Background and RD's Decision

      The Justice Automated Booking System (JABS) is the Agency's electronic database of information concerning federal offenders. This system enables the Agency's law enforcement entities, including Bureau of Prisons, Drug Enforcement Administration, Federal Bureau of Investigation (FBI), Bureau of Alcohol, Tobacco, Firearms, and Explosives, and United States Marshals Service, to maintain and share electronic fingerprint, photographic, and biographical data when a federal offender is booked. See RD's Decision at 3. JABS is also used by the United States Secret Service, the United States Department of Homeland Security's (DHS's) Immigration and Customs Enforcement (ICE), and the federal judiciary. In addition, Department of Defense (DoD) military installations are using JABS to input military detainee information. See id.

      Further, JABS transmits fingerprint, photographic, and biographical data to the Integrated Automated Fingerprint Identification System (IAFIS), which is a national fingerprint and criminal history database maintained by the FBI containing the fingerprints and criminal histories of more than forty-seven million subjects. See id. JABS also provides its users access to IAFIS. JABS also maintains a civil applicant system that federal agencies use to check the criminal histories of applicants for federal employment and to clear private contractors to work for the federal government.

      The employees at issue in this case are employed in the JABS Program Management Office (Office), which is responsible for overseeing the information technology aspects of the JABS system.

      The Union is the certified exclusive representative of a bargaining unit of professional and nonprofessional employees within the Agency. The Union filed a petition seeking to clarify the unit to include four individuals who work in the Office -- two GS-14 Information Technology Specialists (Specialist 1 and Specialist 2), a GS-14 Information Technology Project Manager [ v62 p287 ] (Project Manager), and a GS-13 Program Analyst (Analyst).

      According to the RD, Specialist 1's primary responsibility is to implement JABS within three "customer organizations" of federal agencies. RD's Decision at 3-4. The RD found that Specialist 1 gathers information from each of the customer organizations to determine its specific requirements for JABS, relays these requirements to contractors who implement them, and makes certain that the implementation is on schedule and within the customer's budget. The RD noted that, to perform these tasks, Specialist 1 learns about the customer agencies' operations, data needs, and computer network. The RD also found that Specialist 1 "ensures that the customer agencies he works with adhere to JABS security policies[.]" Id. at 4. The RD further found that Specialist 1's duties do not require him to access the information on the JABS system or have access to the customer organization's databases or systems and that he is not enrolled as a JABS user. See id.

      Specialist 2 performs similar customer service responsibilities as Specialist 1, according to the RD. In addition, the RD determined that he serves as the Contracting Officer Technical Representative (COTR) for the contractor that operates the JABS Help Desk and services CORE JABS, which is the Agency's basic computer infrastructure for the JABS system.  [n3]  See id. at 5. The RD found that Specialist 2 is responsible for overseeing the contractor's performance by making sure that the work the contractor performs is within budget and that contractor invoices are processed timely.

      The RD determined that the Project Manager works primarily with CORE JABS, overseeing contractors who perform work on the JABS infrastructure and software. According to the RD, in making modifications to CORE JABS, fellow project managers share background information concerning a desired change with the incumbent so that he and the contractors he oversees properly design and implement the requested change. See id. The RD concluded that the Project Manager also serves as a COTR, reviewing contractors' work on the JABS code, designs, and testing plans, including work "affecting the security of access to the JABS system." Id. at 6.

      The RD found that the Analyst performs administrative functions within the Office, including ordering equipment for customer organizations based upon requests by the servicing project manager. According to the RD, she also tracks expenditures, answers office phone calls, and opens office mail. The RD determined that the Analyst may see sensitive materials while opening the office mail, or may overhear discussions regarding sensitive JABS information within the Office, but she does not have access to JABS. See id.

      As discussed below, the RD concluded that the incumbents of the four positions should be included in the bargaining unit, rejecting the Agency's claim that the incumbents should be excluded on the basis that they are engaged in "security work which directly affects national security" within the meaning of § 7112(b)(6) of the Statute.

      As an initial matter, the RD rejected the Agency's assertion that its decision to grant a security clearance to each of the four incumbents establishes as a matter of law that the incumbents are excluded from the bargaining unit pursuant to § 7112(b)(6). Specifically, the RD found the Agency's reliance on Department of the Navy v. Egan, 484 U.S. 518 (1988) (Egan), to be misplaced because, in making a determination under § 7112(b)(6), the Authority "is not reviewing or passing judgment on the Agency's decision to grant the four positions at issue a security clearance." RD's Decision at 8.

      The RD next determined that the duties of the four employees do not include the regular use of, or access to, classified information. The RD also found that the information in the JABS system is sensitive, but is not classified. The RD further concluded that the employees are not responsible for any classified information and are not able to access any secure repository of sensitive national security information. See id. at 9 (citing United States Dep't of Justice, 52 FLRA 1093 (1997) (DOJ); United States Dep't of the Army, Corps of Eng'rs, United States Army Eng'r Research Dev. Ctr., Vicksburg, Miss., 57 FLRA 834 (2002)). The RD acknowledged that each of the four employees has a top secret security clearance with a sensitivity level of "special- sensitive" and that this factor is considered important for determining bargaining unit eligibility under § 7112(b)(6). RD's Decision at 8. However, the RD found no evidence that the nature and type of work performed by the incumbents involved the regular use of, or access to, classified information.

      According to the RD, the employees' duties do not include the designing, analyzing, or monitoring of security systems or procedures. Noting that JABS is a [ v62 p288 ] "secure computerized repository of identifying and biographical data concerning [f]ederal offenders, and is used in connection with the protection and security of the United States," the RD found that the four incumbents "are not responsible for securing, guarding, shielding, protecting or preserving JABS." Id. at 10. The RD concluded that other personnel and other offices, such as Information Technology Security Staff, Operations Services, and FBI, are responsible for the security and maintenance of JABS. The RD also determined that the four do not write security action plans, participate in the design and installation of security measures, have access to, or the ability to adjust, security systems, or provide advice and guidance on security measures. See id. In addition, the RD found that the incumbents do not determine who has access to JABS and their own access to the system is limited or non-existent.

      Based on the foregoing, the RD concluded that the incumbents are not engaged in "security work which directly affects national security" within the meaning of § 7112(b)(6) of the Statute, and the RD clarified the unit to include the incumbents' positions. Id.

III.     Positions of the Parties

A.     Agency

      The Agency requests review of the RD's decision on the grounds that: (1) Authority precedent regarding the meaning of 5 U.S.C. § 7112(b)(6) as it applies to employees who occupy "sensitive" positions, or who have security clearances, warrants reconsideration; and (2) the RD committed a clear and prejudicial error concerning a substantial factual matter, or failed to apply established law, by finding that the incumbents did not perform security work under 5 U.S.C. § 7112(b)(6).

      The Agency urges the Authority to reconsider its precedent and hold that any employee who is designated "sensitive" under Executive Order (E.O.) 10450 or who has been granted a security clearance is, "based on that factor alone," excluded from the coverage of the Statute pursuant to § 7112(b)(6). Application for Review at 24. In support, the Agency argues that E.O. 10450 delegates to agency heads the exclusive authority to designate as sensitive any position within their departments "the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security . . . ." Id. at 25 (quoting 5 U.S.C. § 7311 app. (E.O. 10450, § 3(b), 18 Fed. Reg. 2489 (1953) (E.O. 10450)). Further, the Agency cites Egan for the proposition that an administrative body "does not have authority to review an agency's security clearance determination because such a determination is the exclusive responsibility of agency heads." Id. (citing Egan, 484 U.S. at 530). Specifically, the Agency disputes the RD's finding that the Authority is not passing judgment on an agency head's decision to designate a position as sensitive. According to the Agency, where an agency has already determined that a position is sensitive, a finding by the Authority that the position is not engaged in security work is "contrary to the [agency head's] conclusion that the employee by virtue of the nature of his position could bring about `a material adverse effect on the national security.'" Id. at 27.

      In addition, the Agency asserts that the national security exclusion set forth in § 7112(b)(6) should cover any employee who has been granted a security clearance. The Agency argues that existing precedent "fails to recognize the flexibility that agencies require in order to respond quickly to unforeseen events threatening national security." Id. at 30 (footnote omitted). As a way to prepare for such unforeseen events, the Agency cites the need to have employees available who are immediately eligible to access classified information. See id. at 31. According to the Agency, existing Authority precedent "hampers the agency head's ability to do so because it causes certain employees' bargaining unit status to be in constant flux and thus places the [A]gency at risk of operating contrary to Congress's view that [the] public interest does not favor collective bargaining for employees covered by the national security exclusion." Id. at 31-32.

      Turning to its argument that the RD committed prejudicial factual errors and failed to apply established law, the Agency contends that the RD erred in finding that the four positions should not be excluded from the unit. The Agency asserts that Specialist 1 is "clearly involved in the design, analysis, and monitoring of JABS." Application for Review at 16. In support, the Agency states that if a change is requested in order to enhance the security of the JABS system, then the incumbent must test the system and ensure its integrity and strength. The Agency also claims that the incumbent provides advice and guidance on security requirements insofar as he ensures that the components and agencies that use JABS adhere to security policies governing JABS. See id. at 17 (citing Transcript (Tr.) at 78, 79, 168-72). Further, the Agency notes that Specialist 1 serves as a contact and discusses problems that law enforcement entities that utilize JABS may have with JABS, including design and security problems, and resolves such problems. See id. In addition, the Agency asserts that the incumbent learns sensitive information about the security of CORE JABS and the projects [ v62 p289 ] assigned to other project managers. See id. (citing Tr. at 81-83). While the Agency acknowledges that the incumbent testified that he has never accessed information maintained in the JABS database, the Agency asserts that, as an authorized user of JABS, the incumbent "could access it." Id. at 17.

      With regard to Specialist 2, the Agency argues that the incumbent's duties include any type of security-related change that the manager in charge of security for JABS wishes to implement and that these changes must be "routed through" the incumbent, who has the authority to direct contractors to make the requested change. Id. at 19. The incumbent also performs "exceptions testing" on such changes, according to the Agency. Id. The Agency also claims that the incumbent "has significant knowledge about weaknesses in JABS' security" and that he is involved in resolving such weaknesses. Id. at 20. Further, the Agency notes that the incumbent oversees contractors who report weaknesses to him and he is responsible for relaying this information to the security team. The Agency also cites the incumbent's work with the Secret Service and ICE in assuring that the agencies' computers can interface with JABS, as well as the incumbent's oversight of contractors who make changes to CORE JABS, and the incumbent's oversight and supervision of the Help Desk contract.

      According to the Agency, the Program Manager's duties include responsibility for the security of part of CORE JABS. In support, the Agency cites the incumbent's testimony that he had recently been involved with installing two changes that affected security. See id. at 18 (citing Tr. at 150-51). The Agency also cites the incumbent's testimony that he knows sensitive information regarding CORE JABS "super structure" [sic] including knowledge of the following: how to access and use the system; its telecommunication circuits; its location; the information it contains; its database structure; and how to modify, change, delete, and access records. Id. at 18-19 (citing Tr. at 153-54).

      As for the fourth disputed position, the Agency claims that the duties of the Analyst include the analysis or monitoring of JABS. In support, the Agency states that the incumbent is responsible for all procurements necessary to support and maintain JABS and, as such, she is aware of any security-related equipment that law enforcement components require to use JABS. Id. at 21 (citing Tr. at 102, 103-04, 206-07). The Agency also notes that the incumbent "serves as a `back-up' for the employee who enrolls law enforcement officers to use JABS." Id. Finally, the Agency asserts that the incumbent has access to information relating to the design, analysis, or monitoring of JABS because she views material sent to JABS by its users and is present when the supervisor and project managers discuss issues relating to JABS.

      With respect to all four employees, the Agency claims that the Authority should grant review because the RD erred as a matter of fact and law by failing to consider the employees' duties in conjunction with their security clearances and the designation of their positions as sensitive. See id. at 23. Under Social Security Administration, Baltimore, Maryland, 59 FLRA 137 (2003) (Chairman Cabaniss concurring and Member Pope dissenting, in part) (SSA, Baltimore), the Agency asserts that the RD should have "given `significant' weight" to the employees' security clearances and the designation of their positions as sensitive in conjunction with his consideration of their duties. Id. (citing SSA, Baltimore, 59 FLRA at 145).

B.     Union

      The Union urges the Authority to reject the Agency's request to reconsider Authority precedent regarding the national security exclusion set forth in § 7112(b)(6). Specifically, the Union asserts that "[t]he broad application of the national security exclusion sought by the Agency . . . would eliminate the Authority's fact-finding function and eviscerate its representation case processing role under [§] 7105(a)(2)(A) of the Statute." Opposition at 4. Moreover, the Union contends that the "broad expansion suggested by the Agency runs directly contrary to Congress's mandate in [§] 7112(a) . . . `to ensure employees the fullest freedom in exercising the rights guaranteed [under the Statute].'" Id. The Union argues that, under the standard advocated by the Agency, if an agency designated a position as sensitive or determined that a position required a security clearance, then the Authority would no longer have a role in considering the duties of the position actually performed by the incumbent. See id. at 5. The Union further claims that the Agency has not offered any reason why an employee's duties in connection with a law enforcement agency are incompatible with being represented by a union and notes that there are "[m]any federal employees working in law enforcement, or whose work relates to law enforcement, [who] are represented by unions." Id.

      The Union also asserts that the RD correctly applied established law, including SSA, Baltimore, and that the RD's decision is consistent with the hearing record. In support, the Union states that the employees testified that they "had no duties relating to classified information or access to such information" and "do not have access to information maintained in systems of the [ v62 p290 ] customers and users . . . of JABS." Id. at 3 (citing Tr. at 145, 146, 155, 158-59, 160-62, 177, 181, 200, 203).

IV.     Analysis and Conclusions

A.      Authority precedent does not warrant reconsideration.

      The Agency argues that the Authority should reconsider its precedent holding that exclusions under § 7112(b)(6) of the Statute are determined on a case-by-case basis and that the Authority should instead find that a position is automatically excluded from a bargaining unit under that section where the Agency has determined that a position is "sensitive" pursuant to E.O. 10450 [n4]  or where the employee has been granted a security clearance. For the reasons set forth below, we find that Authority precedent does not warrant reconsideration. [n5] 

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[.]"

      In Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644, 655 (1980) (Oak Ridge), the Authority first interpreted § 7116(b)(6), holding that in order to exclude an employee from a unit on the basis that the employee is "engaged in . . . security work which directly affects national security[,]" an agency "must show (1) that the individual employee is engaged in the designated work, and (2) that the work directly affects national security." Id. at 655. 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 further stated that "`directly affects' [means] a straight bearing or unbroken connection that produces a material influence or [alteration]." Id. Taking into account the various statutes, executive orders, regulations, and judicial decisions comprising the "complex legal framework surround[ing] `national security' in the context of Government employment[,]" the Authority defined "national security" to include:

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 DOJ, the Authority modified Oak Ridge, in part, holding that an employee is also engaged in "security work" within the meaning of § 7112(b)(6) if the employee's position includes "the regular use of, or access to, classified information." DOJ, 52 FLRA at 1103. The Authority also reexamined 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" within the meaning of § 7112(b)(6). See id. at 1100. In doing so, the Authority considered several executive orders concerning national security that were promulgated after the enactment of § 7112(b)(6), as well as the definition of "national security" used in Oak Ridge, which it found to be consistent with those executive orders and other relevant authority.

      The Authority again reexamined the term "national security" as used in § 7112(b)(6) in SSA, Baltimore, and held that the term applied to security work related to the economic and productive strength of the United States. See SSA, Baltimore, 59 FLRA at 144. In doing so, the Authority again considered executive orders and statutes that had been promulgated or enacted since the enactment of the Statute. [n6]  Reaffirming Oak Ridge and DOJ, [ v62 p291 ] the Authority held that "national security" within the meaning of § 7112(b)(6), "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." Id. In addition, the Authority clarified 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." Id. The Authority also stated that it would continue to apply the Oak Ridge definition in determining whether security work "directly affects" national security within the meaning of § 7112(b)(6) of the Statute. See id.

      In SSA, Baltimore, the Authority also rejected the union's argument that the Statute required either that an employee 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. See id. at 144-45, 145 n.6. The Authority found that in determining whether § 7112(b)(6) applies to a particular employee, "the focus must be on the type and nature of the work performed[,]" and not on whether the employee has a security clearance or whether the position has been designated as sensitive. Id. at 145. In this connection, the Authority stated that employees may perform security work that directly affects national security "irrespective of whether they have a security clearance." Id. However, the Authority also stated that whether an employee holds a security clearance and/or occupies a position designated as "sensitive" are "significant factors in making a determination under § 7112(b)(6)." Id. (citation omitted). The Authority explained that "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." Id. (footnote omitted).

      In sum, in SSA, Baltimore, the Authority reaffirmed its practice of resolving matters arising under § 7112(b)(6) on a case-by-case basis by applying the statutory criteria to the record developed in each case, 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. [n7]  The Agency requests that the Authority modify this approach and find that any employee who is designated "sensitive" under Executive Order (E.O.) 10450 or who has been granted a security clearance is, "based on that factor alone," excluded from the coverage of the Statute pursuant to § 7112(b)(6). Application for Review at 24.

2.     Sensitive Positions

      Section 3(b) of E.O. 10450 requires agencies to designate as "sensitive" any position where the occupant "could bring about, by virtue of the nature of the position, a material adverse effect on the national security . . . ." The Office of Personnel Management (OPM) has issued regulations that implement this requirement at 5 C.F.R. Part 732, "National Security Positions." Specifically, these regulations require agencies to designate employees in one of three categories of sensitivity, mandate that agencies follow standards for investigating each level of sensitivity, and provide due process rights for employees subject to unfavorable determinations concerning sensitive positions. See 5 C.F.R. §§ 732.201-203, 732.301. [n8] 

      The Supreme Court's decision in Egan indicates that administrative bodies like the FLRA do not have the authority to independently review an agency's national security determination that a particular position is sensitive under E.O. 10450. In particular, the Court held in Egan that the Merit Systems Protection Board [ v62 p292 ] lacked the statutory authority in a removal hearing to review the underlying reasons for the denial of an employee's security clearance where the employee lost his job for cause due to such denial. An agency's sensitivity determination under E.O. 10450 invokes similar national security issues as the Court discussed in Egan and may be based on an employee's "regular use of, or access to, classified information." 5 C.F.R. § 732.102(2) (relationship to classified information is basis for designating position "national security position" under E.O. 10450). Thus, as the Agency argues, Egan supports a conclusion that the same deference applied to clearance determinations is also due sensitivity determinations under E.O. 10450.

      Consistent with the foregoing, the Agency is correct in asserting that the Authority may not review its determination under E.O. 10450 that a particular position "could" have an "adverse effect on the national security[.]" However, the Agency does not explain why this determination necessarily disposes of the issue before the Authority. We note that § 7112(b)(6) requires that an employee be "engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security[.]" This standard is not only different from the standard set out in the Executive Order, it is narrower. Rather than the potential adverse effect on national security that "could" result from the nature of positions covered by the Executive Order, § 7112(b)(6) requires that the employee actually be "engaged" in particular work which has a "direct" effect on national security. The requirements of engagement and directness indicate that the statutory exemption describes a narrower class of positions than does the Executive Order.

      Further, the Agency is incorrect insofar as it asserts that "[i]n order to designate a position as `sensitive,' the agency head must first determine that the position could `have a material adverse effect on national security.'" Application for Review at 26. Contrary to the Agency's assertion, E.O 10450 provides only that positions that could have a material adverse effect on national security must be designated as sensitive; it does not preclude an agency from designating a position as "sensitive" on grounds other than a possible adverse effect on national security. Thus, the category of sensitive positions may be broader than only those positions that fall under the Executive Order's definition.

      As a general matter, the Authority has noted that "[i]n enacting section 7112(b)(6), Congress is presumed to have been aware of the meaning given to the term `national security' in existing statutes and executive orders," including E.O. 10450, which was in effect when the Statute was passed. DOJ, 52 FLRA at 1099-1100. If Congress had wished to exclude all employees designated "sensitive" from bargaining units, it could have done so by incorporating the Executive Order standard into the Statute. Instead, Congress included a standard in § 7112(b)(6) that focused on particular duties that employees must be engaged in and excluded only those employees who are actually performing those duties. The Agency provides no reason why the Authority should apply the broader standard set out in the Executive Order when Congress chose a narrower standard for the statutory exclusion.

      In addition to the specific terms of § 7112(b)(6), we also note that the Statute contains three additional national security-related exclusions: 5 U.S.C. §§ 7103(a)(3)(B), (C), and (D) (excluding the FBI, the Central Intelligence Agency, and the National Security Agency); 5 U.S.C. § 7103(b)(1) (authorizing the President to exclude any agency or subdivision thereof from coverage of the Statute if "the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work[.]"); and 5 U.S.C. § 7103(b)(2) (authorizing the President to suspend any provision of the Statute with respect to "any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that suspension is necessary in the interest of national security."). Congress has, therefore, set forth a comprehensive scheme with multiple national security protections, and the Agency provides no reason to interpret § 7112(b)(6) in a manner that adds an exclusion that it does not expressly contain. We therefore deny the Agency's request that the Authority reconsider its standards concerning the application of § 7112(b)(6) of the Statute to employees in sensitive positions.

3.      Security Clearances

      As set forth above, the Authority has determined that an employee is engaged in "security work" within the meaning of § 7112(b)(6) of the Statute if the employee's duties include "the regular use of, or access to, classified information." DOJ, 52 FLRA at 1103. Here, the RD found, and it is not disputed, that the information contained in the JABS system is not classified and that none of the employees at issue regularly use or have access to classified information. Applying the DOJ standard, the RD found that the employees' duties do not provide a basis for excluding them from the bargaining unit on the basis of their use of, or access to, classified information.

      The Agency argues that the Authority should hold that an agency's decision to grant an employee a security [ v62 p293 ] clearance is sufficient to satisfy the statutory exemption. According to the Agency, the granting of a security clearance makes the employee "immediately eligible to access classified information when the need arises" and a standard that permits such employees to remain in bargaining units "fails to recognize the flexibility that agencies require in order to respond quickly to unforeseen events threatening national security." Application for Review at 29-30.

      The Agency does not provide any authority indicating that potential future access to classified information satisfies the requirement of § 7112(b)(6) that an employee be "engaged" in security work that "directly affects national security." Rather, the Agency asserts that there are situations where flexibility and the need to act quickly are paramount, using the Agency's response to the September 11, 2001, attacks as an example. However, the Agency's discussion of the actions it was required to take in the wake of that tragedy does not provide any basis on which to conclude that the Agency's flexibility was, or would be, compromised by the bargaining unit status of an employee with a security clearance. The Agency also posits a hypothetical situation where one of the employees at issue in this case is "unexpectedly . . . needed tomorrow to assist with a six-month project requiring that he regularly use classified information." Id. at 32. However, as with the Agency's prior example, the Agency does not provide any basis to conclude that its ability to carry out such an assignment would be compromised by the bargaining unit status of an employee. Thus, even if, as the Agency claims, the bargaining unit status of an employee temporarily assigned to classified duties would be unclear, the Agency does not explain either why this potential dispute would affect the employee's assignment or why such dispute could or should not be resolved at the time it arises. For the above reasons, we find that the Agency has not established that the Authority should reconsider its precedent with regard to the meaning of § 7112(b)(6) of the Statute and automatically exclude employees with security clearances from the coverage of the Statute.

B.      The RD failed to apply established law with respect to three of the four positions.

      As relevant here and explained above, the exclusion set out at § 7112(b)(6) of the Statute is satisfied where: (1) the tasks and duties of the employee's position include the designing, analyzing, or monitoring of security systems or procedures; (2) the system concerns "national security;" and (3) the work "directly affects" national security as "a straight bearing or unbroken connection that produces a material influence or [alteration]."  [n9]  SSA, Baltimore, 59 FLRA at 143 (quoting Oak Ridge, 4 FLRA at 655). As the second of these criteria applies equally to all four positions, we address it initially.

      The RD found that JABS itself "is a secure computerized repository of identifying and biographical data concerning federal offenders, and is used in connection with the protection and security of the United States[.]" RD's Decision at 10. This uncontested finding supports a conclusion that JABS is a national security system meeting the second criterion set forth above. It is undisputed that following the attacks of September 11, 2001, JABS has been utilized in a number of ways to defend the Nation against terrorist activities. Specifically, there is no dispute that following the attacks, the Agency expedited the installation of JABS computer hardware at every Agency site in the nation in an effort to fight terrorism. See Application for Review at 3 (citing Tr. at 26). Further, there is no dispute that JABS has been used by the DoD in recent military operations to input military detainee information. See id. at 3. In this connection, JABS was used to process military insurgents and other individuals who were incarcerated in Abu Ghraib Prison in Iraq. Application for Review at 4 (citing Tr. at 138). JABS was also used in Afghanistan and Guantanamo Bay, Cuba, to process detainees in the custody of coalition forces. See id. (citing Tr. at 139). It is also undisputed that JABS was utilized by the FBI to create an "index of known or suspected terrorists" that is maintained in JABS. Application for Review at 4 (citing Tr. at 139-40). Based on the foregoing, we conclude that JABS is a system that concerns national security.

      The RD nevertheless concluded that the four employees should not be excluded because their work did not satisfy the first criterion above. He found that they were not performing "security work" because their duties did not include the designing, analyzing, or monitoring of security systems or procedures and the four employees "are not responsible for securing, guarding, shielding, protecting or preserving JABS." RD's Decision at 9-10. [n10]  The Agency argues that the RD erred in concluding that the work of the four employees did not constitute "security work" as the Authority has defined that statutory term. [ v62 p294 ]

1.     Specialist 1

      Among other duties, the RD found that Specialist 1 "ensures that the customer agencies he works with adhere to JABS security policies[.]" Id. at 4. This finding supports the Agency's contention that Specialist 1 is involved in the designing, analyzing, or monitoring of JABS. The Agency asserts, and the record supports, that if a change is requested in order to enhance the security of the JABS system, Specialist 1 must test the system and ensure its integrity. See Application for Review at 16 (citing Tr. at 66, 165). The Agency further asserts, and the record supports, that customer agencies serviced by Specialist 1 contact him with regard to any concerns related to the security or functioning of the JABS system, following which Specialist 1 gathers information concerning the requested modifications and helps with the design of those modifications. See id. at 17 (citing Tr. at 78-79, 168-72). Further, the Agency claims that the customer agencies serviced by Specialist 1 contact him if they discover design and security problems and Specialist 1 then plans the analysis that will be used to identify and repair the problem. See id. Specialist 1 is also responsible for testing the system to make sure that what the contractors have done is correct. See id. In addition, the record supports the Agency's assertion that Specialist 1 is responsible for testing the integrity of the security of JABS, works with the JABS security team to further define customer agency security needs, and has ultimate responsibility and accountability for the required security modifications. See id. at 16 (citing Tr. at 66-67).

      The RD's general conclusion that none of the four employees at issue is responsible for designing, analyzing, or monitoring any security systems or procedures is not consistent with the RD's specific findings concerning Specialist 1's duties or with the uncontested record evidence relied on by the Agency. While the RD may be correct that other offices have responsibility for securing the JABS system, this does not mean that the duties Specialist 1 performs implementing the security requirements of customers and ensuring that these customers comply with the Agency's security standards are not also "security work" within the meaning of § 7112(b)(6). The findings of the RD, as supported by the record, demonstrate that Specialist 1 is responsible for monitoring the security of the JABS system by directing and testing any security-related changes the contractors make to the system. As such, we find that the RD failed to apply established law when he held that the duties of Specialist 1 did not involve the designing, analyzing, or monitoring of JABS. See, e.g., SSA, Baltimore, 59 FLRA at 146; DOJ, 52 FLRA at 1104. Consistent with the preceding discussion, we thus find that Specialist 1 is engaged in security work within the meaning of § 7112(b)(6) of the Statute.

      Having concluded that Specialist 1 is engaged in security work that satisfies the first two SSA, Baltimore criteria, we now consider whether that work satisfies the third criterion -- whether it "directly affects" national security as "a straight bearing or unbroken connection that produces a material influence or [alteration]." SSA, Baltimore, 59 FLRA at 143 (quoting Oak Ridge, 4 FLRA at 655). For the reasons that follow, we find that the work Specialist 1 performs and the decisions he makes with regard to the security of the JABS system are critical to protecting the information contained within that system. Specifically, Specialist 1 is personally and directly responsible for monitoring the security of the JABS system by directing and testing any security-related changes the contractors make to the system. See Application for Review at 16 (citing Tr. at 66-67). Further, he is ultimately accountable for the accuracy of any such security modifications. See id. There are, therefore, no intervening steps between the duties of Specialist 1 and the potential effects on national security if Specialist 1 fails to perform his duties. Thus, there is a direct connection between the duties of Specialist 1 and national security. Accordingly, we find that Specialist 1 is engaged in security work that directly affects national security.

2.     Specialist 2

      The RD found that Specialist 2 serves as the COTR for the contractors who are responsible for servicing CORE JABS and "oversees contractor work ensuring that JABS is operational, that necessary system maintenance is performed, and that unexpected downtime is kept to a minimum." RD's Decision at 5. The RD also found that Specialist 2 is "able to bring the JABS system down in order to perform system maintenance." Id. The Agency notes that, as COTR, Specialist 2 has oversight over all interactions with the contractors. Application for Review at 19 (citing Tr. at 99). As a result, according to the Agency, Specialist 2 is responsible for helping to maintain the security of JABS insofar as any type of security-related change to JABS has to be routed through him. See id. In this connection, the Agency further notes that only Specialist 2 has the authority to direct the contractors to make such changes to the system. See id. at 19-20. Consistent with the RD's findings, the record supports the Agency's assertion that contractors bring any security issues they discover within the system to the attention of Specialist 2, who then is responsible for reporting those issues to the security team. See id. at 20 [ v62 p295 ] (citing Tr. at 100). Further, the RD's finding that the incumbent has "limited or non-existent" access to JABS, RD's Decision at 10, is not supported by the record. In this regard, Specialist 2 testified that he has access to "everything that's in JABS." Tr. at 180. Insofar as the RD specifically credited Specialist 2's testimony with regard to his description of the duties of his job, see RD's Decision at 5, and did not discredit Specialist 2's testimony with respect to this, or any other issue, we credit the testimony of Specialist 2 and find that he has access to "everything that's in JABS." Tr. at 180.

      As with Specialist 1, the RD's conclusion that none of the four employees at issue is responsible for designing, analyzing, or monitoring any security systems or procedures is not consistent with the RD's specific findings concerning Specialist 2's duties or with the uncontested record evidence relied on by the Agency. With regard to the latter point, it is uncontested that Specialist 2 is responsible for overseeing all contractor work on CORE JABS, including work related to security. The findings of the RD, as supported by the record, demonstrate that Specialist 2 is responsible for monitoring the security of the JABS system by overseeing the security work performed by contractors on CORE JABS. As such, we find that the RD failed to apply established law when he held that the duties of Specialist 2 did not involve the designing, analyzing, or monitoring of JABS. See, e.g., SSA, Baltimore, 59 FLRA at 146; DOJ, 52 FLRA at 1104. Consistent with the preceding discussion, we further find that Specialist 2 is engaged in security work within the meaning of § 7112(b)(6) of the Statute.

      Turning to the third SSA, Baltimore criterion, we find that Specialist 2 is engaged in security work that directly affects national security. As with Specialist 1, for the reasons that follow, we find that the work Specialist 2 performs and the decisions he makes with regard to the security of the JABS system are critical to protecting the information contained within that system. Specifically, Specialist 2 is personally and directly responsible for overseeing all contractor work on CORE JABS, including work related to the security of the JABS system. See Application for Review at 19 (citing Tr. at 99). Further, only Specialist 2 has the authority to direct the contractors to make such security changes to the system. See id. There are, therefore, no intervening steps between the duties of Specialist 2 and the potential effects on national security if Specialist 2 fails to perform his duties. Thus, there is a direct connection between the duties of Specialist 2 and national security. Accordingly, we find that Specialist 2 is engaged in security work that directly affects national security.

3.     Project Manager

      The RD found that the Project Manager "reviews contractors' work on JABS' code, designs[,] and testing plans, includ[ing] work affecting the security of access to the JABS system." RD's Decision at 6. The Agency argues, and the record supports, that the Project Manager is responsible for the security of the part of CORE JABS that he maintains. See Application for Review at 18 (citing Tr. at 89-90). In this connection, the record also supports the Agency's assertion that the Project Manager is responsible for ensuring that any changes to CORE JABS are performed correctly. See id. The Project Manager also works with contractors to resolve weaknesses in the security or integrity of JABS. See id. Further, the Agency asserts, and the record supports, that the Project Manager had been involved in two changes that affected security just prior to the hearing in this case. See id. (citing Tr. at 150-51).

      As with the previous two positions, the RD's conclusion that none of the four employees at issue is responsible for designing, analyzing, or monitoring any security systems or procedures is not consistent with the RD's specific findings concerning the Project Manager's duties or with the uncontested record evidence relied on by the Agency. With respect to the latter point, it is uncontested that the Program Manager is responsible for overseeing contractor work related to the security of the part of CORE JABS that he maintains. The findings of the RD, as supported by the record, demonstrate that the Program Manager is responsible for monitoring the security of the JABS system by overseeing the security work performed by contractors on CORE JABS. As such, we find that the RD failed to apply established law when he held that the duties of the Program Manager did not involve the designing, analyzing, or monitoring of JABS. See, e.g., SSA, Baltimore, 59 FLRA at 146; DOJ, 52 FLRA at 1104. Consistent with the preceding discussion, we further find that the Project Manager is engaged in security work within the meaning of § 7112(b)(6) of the Statute.

      Applying the third criterion set forth above, we find that the Project Manger is engaged in security work that directly affects national security. As with Specialists 1 and 2, for the reasons that follow, we find that the work the Project Manager performs and the decisions he makes with regard to the security of the JABS system are critical to protecting the information contained within that system. Specifically, the Project Manager is personally and directly responsible for maintaining the [ v62 p296 ] security of the part of CORE JABS that he maintains and ensuring that any changes to CORE JABS are performed correctly. See Application for Review at 18 (citing Tr. at 89-90). There are, therefore, no intervening steps between the duties of the Project Manager and the potential effects on national security if the Project Manager fails to perform his duties. Thus, there is a direct connection between the duties of the Project Manager and national security. Accordingly, we find that the Project Manager is engaged in security work that directly affects national security.

4.     Analyst

      With respect to the Analyst, the Agency does not dispute the RD's finding that the incumbent performs administrative tasks such as ordering equipment needed by customer organizations, answering phones, and opening mail. Similarly, the Agency does not point to any duties performed by the incumbent that demonstrate that she is involved in the designing, analyzing, or monitoring of security systems or procedures. While the incumbent may have limited access to sensitive information, which she may see when opening the mail or overhear in the office, the incumbent has no access to the JABS system itself. Contrary to the Agency's assertion that the incumbent serves as a "back-up" to the employee who enrolls JABS users, the record demonstrates that she has not had access to JABS for the three years prior to the hearing, she does not have a JABS password, and she has not served as the "back-up" in those three years because there is another "back-up" person. See Tr. at 203-04.

      In contrast with the previous three positions, the RD's conclusion that the Analyst is not responsible for designing, analyzing, or monitoring any security systems or procedures is consistent with the RD's specific findings concerning the Analyst's duties and with the uncontested record evidence. The undisputed evidence demonstrates that the Analyst does not have access to or responsibility for any part of the JABS system. The record also reveals that the Analyst is responsible for ordering equipment for JABS only at the direction of the servicing project manager. In addition, unlike the other three incumbents -- who direct, oversee and are responsible for the work of contractors relating to the security of JABS -- there is no record evidence that the Analyst is responsible for overseeing the work of others who are involved in monitoring the security of JABS. There is similarly no record evidence that the Analyst is otherwise responsible for designing, analyzing, or monitoring any security systems or procedures. As such, we find that the RD did not fail to apply established law when he held that the duties of the Analyst did not involve the designing, analyzing, or monitoring of JABS. In light of this conclusion, there is no need to address the third criterion.

      In addition to its claims based on the specific work of the employees and apart from its claim that Authority precedent should be reconsidered, the Agency argues that the RD failed to apply established law by not giving the proper weight to the Analyst's security clearance status and the designation of her position as sensitive, as required by SSA, Baltimore. In support, the Agency states that, under SSA, Baltimore, security clearances and designations of positions as sensitive are "significant factors" in determining bargaining unit status. Application for Review at 23 (quoting SSA, Baltimore, 59 FLRA at 145).

      Contrary to the Agency's claim, the RD's decision specifically acknowledged that the Analyst has a top secret security clearance and that her position is designated as special-sensitive. See RD's Decision at 9. Further, consistent with SSA, Baltimore, the RD noted the importance of these factors for determining bargaining unit eligibility under § 7112(b)(6). See id. at 8. Nevertheless, the RD found no evidence that the nature and type of work performed by the Analyst involved the regular use of, or access to, classified information and found that she was not involved in the designing, monitoring, or analyzing of security programs or policies. Based on the foregoing, the Agency has not established that the RD failed to afford appropriate weight to the incumbent's security clearance status and the designation of her position as sensitive.

      For the above reasons, we find that the Agency has not established that the RD failed to apply established law or made prejudicial factual errors with regard to the Analyst.

V.     Order

      We conclude that the RD failed to apply established law with respect to the positions encumbered by Specialist 1, Specialist 2, and the Project Manager. On review, Specialist 1, Specialist 2, and the Project Manger are excluded from the bargaining unit pursuant to § 7112(b)(6). We deny the application for review in all other respects.


File 1: Authority's Decision in 62 FLRA No. 52
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 62 FLRA No. 52 - Authority's Decision

   Chairman Cabaniss' opinion, concurring in part and dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 52 - 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;
     (iii) Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 3 for 62 FLRA No. 52 - Authority's Decision

   According to the Agency, "CORE JABS is the JABS hardware and software, and the network infrastructure that houses the databases and servers." Application for Review at 7 n.8 (citing Transcript at 49-50, 114-16).


Footnote # 4 for 62 FLRA No. 52 - Authority's Decision

   We note that a similar argument was raised before the Authority in SSA, Baltimore. In that case, the Authority published a Federal Register Notice requesting briefs addressing whether, and how, the security work performed by certain incumbents of the Social Security Administration "directly affect[ed] national security," as defined in Oak Ridge. In its decision, the Authority held that it was not necessary to address the alleged preclusive effect of a designation of "sensitive" because, at the time of the proceeding before the RD, the positions involved in that case were designated as "nonsensitive." SSA, Baltimore, 59 FLRA at 145 n.5. As the positions in this case are designated as "sensitive," it is necessary to address the issue here.


Footnote # 5 for 62 FLRA No. 52 - Authority's Decision

   As we find the record sufficient to resolve this issue, we see no need to seek comment from the labor-management relations community prior to doing so. As noted above, n.4., the Authority previously sought and considered views of this community in resolving issues regarding national security under § 7112(b)(6) of the Statute. 67 Fed. Reg. 71175 (2002).


Footnote # 6 for 62 FLRA No. 52 - Authority's Decision

   In this regard, the Authority specifically considered E.O. 13138, 64 Fed. Reg. 53879 (Sept. 30, 1999); the Critical Infrastructures Protection Act of 2001, 42 U.S.C. § 5195c, incorporated as § 1016 of the USA Patriot Act; and § 891 of the Homeland Security Act of 2002.


Footnote # 7 for 62 FLRA No. 52 - Authority's Decision

   In SSA, Baltimore, the Authority also noted that Congress addressed national security in § 7103(b) of the Statute, which grants the President the authority to order the exclusion of any agency or component from coverage of the Statute based on national security considerations. See SSA, Baltimore, 59 FLRA at 143. In this regard, the Authority stated that, unlike § 7103(b), which addresses agencies or other component as a whole, § 7112(b)(6) is limited to whether particular employees may be included in bargaining units. See id. Here, it is undisputed that no such § 7103(b) order applies in the present case.


Footnote # 8 for 62 FLRA No. 52 - Authority's Decision

   In 5 C.F.R. § 732.102(a), the term "national security position" is defined to include:

[t]hose positions that involve activities of the Government that are concerned with the protection of the nation f