File 2: Opinion of Chairman Cabaniss
[ v62 p297 ]
Opinion of Chairman Cabaniss - Concurring in part and Dissenting in part
I agree with the conclusions reached by the Majority in regard to the Specialist and Project Manager positions insofar as they are found to be excluded from the bargaining unit pursuant to § 7112(b)(6). I write separately, however, to explain why I would grant the application for review to reconsider established precedent with regard to the meaning of § 7112(b)(6) of the Statute, and why I disagree with the Majority in regard to the Analyst position.
I have reviewed the Authority's decisions in Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644 (1980) (Oak Ridge), United States Dep't of Justice, 52 FLRA 1093 (1997) (DOJ), and Social Security Administration, Baltimore, Maryland, 59 FLRA 137 (2003) (Chairman Cabaniss concurring and Member Pope dissenting, in part) (SSA, Baltimore), and find that there is a lack of clarity in this line of cases that undercuts the guidance the Authority is providing the parties under the Statute through these decisions. The Majority comes perilously close to, if not actually, crossing the line drawn by the Supreme Court in Department of the Navy v. Egan, 484 U.S. 518 (1988) (Egan) that demarcates the appropriate level of review we may exercise in such cases. By granting the application, my intent would be to seek input from the larger labor relations community through a notice for comments in the Federal Register and to clarify our guidance.
Regarding the issue of whether employees in sensitive positions and employees who have been granted security clearances should be automatically excluded from bargaining units, on the two occasions the Authority has had the opportunity to address this issue, it was not necessary to address it to determine the unit status of disputed employees. In DOJ, 52 FLRA 1093 (1997), the Authority excluded the disputed employees from the bargaining unit under § 7112(b)(6) of the Statute on other grounds and specifically declined to address this issue, but suggested that the Authority would consider it in an appropriate case by seeking the views of interested parties. See 52 FLRA at 1106 n.12. In SSA, Baltimore 59 FLRA 137, the Authority faced a similar situation, and again declined to consider the issue because it was not necessary to determine the unit status of the employees in dispute. However, in the present case it is necessary to consider the issue in order to resolve the bargaining unit status of the analyst position.
In order for the Authority to find that an employee is engaged in security work for purposes of § 7112(b)(6), the Authority must find that the employee is either 1) involved in the designing, analyzing, or monitoring of security systems or procedures, or 2) engaged in the regular use of, or access to, classified information. SSA, Baltimore, 59 FLRA at 143. The Authority should take this opportunity to address the seeming conflicts between these two criteria in the first prong of the definition of security work that were made apparent in the Regional Director's Decision and Order in this case and the Agency's application for review.
Finally, in its analysis and conclusions, the Majority analyzes E.O. 10450 and the Office of Personnel Management's (OPM's) regulations implementing the executive order, and bases its decision not to reconsider Authority precedent on this issue partly on this analysis. Even though I disagree with the analysis in several respects, which I will not discuss in depth herein, [n1] the fact remains that we are engaged in analyzing a regulatory scheme that we do not implement, and in which we have little expertise. See SSA Baltimore, 59 FLRA at 147 (Concurring opinion of Chairman Cabaniss). I bel