[ v62 p298 ]
62 FLRA No. 53
UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(Agency)
and
NATIONAL TREASURY
EMPLOYEES UNION
(Union/Petitioner)
WA-RP-06-0059
_____
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 National Treasury Employees Union (Union) under § 2422.31 of the Authority's Regulations. [n2] The United States Department of the Treasury, Internal Revenue Service (Agency) filed an opposition to the Union's application.
The Union filed a petition seeking to clarify the unit status of all employees encumbering the GS-080 Physical Security Specialist position. The Regional Director (RD) determined that the employees are 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) bars their inclusion in a collective bargaining unit. [n3]
For the reasons that follow, we deny the Union's application for review.
II. Background and RD's Decision
A. Background
The Union is the certified exclusive representative of a bargaining unit of all professional and nonprofessional employees within the Agency. The Union filed a petition seeking a unit determination as to the unit status of all GS-080 Physical Security Specialists (Specialists) within the Agency's Mission Assurance and Security Services (MASS), Office of Physical Security and Emergency Preparedness (OPSEP). [n4] At the hearing, the parties stipulated that the testimony of the Specialists who testified was representative of all Specialists covered by the petition. [n5] See RD's Decision at 6 n.6; Tr. at 214-16.
The Agency is responsible for collecting over $2 trillion in tax revenue each year, which represents approximately 82% of the revenue used for the operation of the Federal government. See RD's Decision at 2; see also Agency Exh. 10(A) at 9. The mission of MASS is to provide physical security and emergency preparedness for all of the Agency's 745 buildings nationwide, including three computing centers that house the Agency's master computer files, ten campuses where tax returns are processed, and over 400 taxpayer assistance centers (TACs). See id. at 4. During the peak of the tax processing season, it is not uncommon for a campus to have deposits of over one million dollars in a single weekend. See id. As a subcomponent of MASS, OPSEP is charged with protecting Agency facilities and [ v62 p299 ] property by ensuring that the physical layout of new space and alterations of existing space meet minimum security standards, as set forth in the Internal Revenue Service Manual, Part 1, Chapter 16, Physical Security Program (IRM - Physical Security Program), and with installing and maintaining security systems and procedures to protect against unauthorized access into Agency space. See id. at 5.
In addition to storing currency and sensitive taxpayer information, Agency facilities may also contain grand jury information, weapons and surveillance equipment, and banking and reporting transactions. See id. at 3. In accessing information, the Agency has an integrated data retrieval system, which means that all employees, no matter how large or small the facility where they work, have access to the same taxpayer data. See id. at 4. Moreover, the RD credited Agency testimony that a person improperly accessing the Agency's computer system would have access to all of the Agency's tax data. See id. at 4-5.
As described more fully below, Specialists engage in duties related to controlling access to Agency facilities, designing security systems for new and existing office space, conducting risk assessments and compliance reviews, and creating or updating Occupant Emergency Plans. Each Specialist is typically assigned responsibility for a number of facilities within a common geographic area. In carrying out their duties, Specialists have access to and utilize electronic databases and portals containing information regarding the security posture of each Agency facility, the square footage and the types of components housed at each facility, as well as information about the types of security systems in place at each location (i.e. surveillance cameras, alarms, etc.). Id. at 8. The RD further found that the Specialists are not required to hold a security clearance, nor do they see or handle classified information in the performance of their job duties. See id. at 6.
The Specialists control access to the buildings for which they are responsible by issuing and withdrawing identification media, such as building access cards, to or from employees and contractors. Id. at 7. Further, the Specialists are responsible for deactivating the identification cards of individuals who are no longer employed with the Agency. The Specialists are also capable of shutting down the entire key card access system for a particular facility. See id.
When Agency offices relocate within existing office space, Specialists design the security systems for the new space. In this connection, Specialists determine the placement of alarms, identification card readers, and surveillance cameras; prepare the scope of work for the contractor that will install the security system; contact vendors to secure estimates for the work; and monitor the installation and testing of the security devices. See id. at 8-9. Generally, Specialists make their recommendations consistent with IRM-Physical Security Program requirements, but Specialists have discretion in determining which security system to use. See id. at 8.
In addition, when Agency offices relocate to new office space, Specialists assess all of the office's existing security equipment and provide recommendations regarding what type of equipment will be needed at the new site. Specialists physically inspect proposed locations, evaluate crime activity reports, determine whether installation of the necessary security devices will be possible, assess whether the site has controlled parking, determine whether the building's ventilation system is secure, and determine the location's proximity to public transportation. See id. at 9-10.
Specialists are also responsible for conducting risk assessments of each of their assigned facilities, and identifying and ensuring that security vulnerabilities are minimized, if not corrected. See id. at 10. Specialists prepare reports based on their observations during an on-site inspection of the location and have the discretion to make security recommendations not otherwise contemplated by a standardized questionnaire. See id.
Further, Specialists perform compliance reviews by ensuring that Agency employees are wearing identification badges and securing taxpayer information when leaving their desks for any purpose; reviewing the number and types of locks on doors and the alarm systems in place; ensuring that Office Emergency Plans and Business Resumption Plans are current; and inspecting the facility for security weaknesses. Compliance reviews have resulted in alarms being relocated. See id. at 12. While the Specialists' written reports are prepared using a standardized form, Specialists have the discretion to make recommendations with respect to items not specifically set forth in the checklist. See id.
In addition to the duties described above, the Specialists are responsible for creating and/or updating the Occupant Emergency Plan for each of their assigned facilities; writing post orders for contract guards; and serving as the building's point of contact. Further, Specialists receive incident reports whenever there is a security situation and utilize these reports to monitor continuing problems and determine whether security at the location should be enhanced.
[ v62 p300 ] Finally, Specialists also have duties in special or emergency situations. For example, during Hurricane Katrina, Specialists worked with the Department of Homeland Security to use cameras attached to the top of an Agency facility in New Orleans to assess building conditions and make determinations regarding how to maintain operations. Similarly, following Hurricane Rita, Specialists participated in the building assessment to determine whether Agency buildings in Texas were still secure. In addition, when the Agency headquarters building in Washington, D.C. was flooded and over 2000 employees were displaced, Specialists were required to issue and monitor access cards for each of the buildings to which the displaced employees were assigned.
B. RD's Decision
As an initial matter, the RD stated that this case is similar to Social Security Administration, Baltimore, Md., 59 FLRA 137, 142-43 (2003) (Chairman Cabaniss concurring and Member Pope dissenting, in part) (SSA, Baltimore), in which the Authority found that GS-080 Physical Security Specialists were excluded from the bargaining unit pursuant to § 7112(b)(6) because they are engaged in security work that directly affects national security.
Relying on SSA, Baltimore, the RD first considered the Agency's role in the Nation's economy. The RD determined that since the Agency collects approximately 82% of the revenue used to operate the Federal government, "disruption of the [Agency's] ability to collect taxes would greatly impact the Nation's economic strength." RD's Decision at 15. The RD further found that "[m]aintaining the continuity of operations of [Agency] facilities" such as campuses that have deposits of over one million dollars in a weekend during the peak processing period, "is essential to the security of the Nation, as is the protection of other [Agency] facilities, such as the facilities which house the master files and computers through which tax returns are processed and through which financial transactions are carried out." Id. at 15-16. Based on the foregoing, the RD determined that "protecting [Agency] facilities, such as the computer centers and the campuses at which tax returns are processed, is critical to ensuring that the [Agency] can collect revenues, allowing for the funding of governmental operations." Id. at 16. Consequently, the RD found that "security work that protects these facilities from sabotage and any other illegal acts, protects the economic strength of the United States[,]" id. (citing SSA, Baltimore, 59 FLRA at 145-46; Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644, 655-56 (1980) (Oak Ridge)), effectively concluding that such work affects national security.
Turning to the specific duties of the Specialists, the RD found that the Specialists are engaged in security work, insofar as they design, analyze, and monitor security systems for the security of, and access to, Agency facilities. See RD's Decision at 16. In this regard, the RD found that the Specialists are involved in designing security systems for offices that are relocated into existing space, as well as offices that relocate to new space. In each of these situations, the RD found that Specialists determine what type of security systems (e.g., surveillance cameras, detection systems, locks, etc.) will be used and where such systems will be placed. The Specialists also consult with vendors, write statements of work, and monitor installation of the security systems by contractors.
The RD noted that the security work of the physical security specialists in SSA, Baltimore, included conducting site surveys to develop knowledge of security systems, making recommendations for the improvement of security systems, and writing and implementing emergency plans. The RD found that the Specialists in the present case perform similar work insofar as they: conduct risk assessments and compliance reviews, during which they review existing operations to determine whether additional security systems are needed or existing systems need modification; test alarm systems by triggering the alarms and timing response times; and write Occupant Emergency Plans and make sure that they are current. Id. at 16.
As further support that the Specialists design, analyze, and monitor security systems, the RD found that the Specialists are responsible for issuing identification media that allows access and prevents unauthorized access to facilities. In this connection, the RD relied on the Specialists' responsibility for ensuring that the identification cards of separated employees have been retrieved or deactivated and the Specialists' ability to shut down the entire key card access system for a particular facility. Based on the foregoing, the RD concluded that "it is clear that the Specialists are engaged in security work, as they design, analyze[,] and monitor security systems, to ensure th[e] safety of [Agency] employees and [Agency] resources." Id. (citing SSA, Baltimore, 59 FLRA at 146).
In so finding, the RD rejected the Union's contention that the Specialists are not involved in the design of security systems because they do not exercise independent judgment, but merely rely on the detailed instructions provided in the IRM - Physical Security Program [ v62 p301 ] and computer software. Contrary to the Union's assertion, the RD found that the record demonstrates that the "Specialists exercise independent judgment, in that they can recommend security measures which are in addition to requirements in the Manual or software package." Id. at 16-17. In this regard, the RD found that the Specialists can modify post of duty orders to require that security guards alter their patrol schedule as the result of reports of vandalism at a specific location; exercise independent judgment in making recommendations regarding security issues they personally observe; have the discretion to decide what type of locking devices or access systems should be on a desk or door; and monitor facilities with high numbers of taxpayer-related incident reports (i.e., irate taxpayers) to determine if the incidents require changes in security at that facility.
Finally, the RD considered whether the Specialists' work "directly affects" national security under § 7112(b)(6) and concluded that "there is sufficient evidence of a straight bearing or unbroken connection between the security work performed by the Specialists and national security." Id. at 17 (citing Oak Ridge, 4 FLRA at 655). In this regard, the RD found that the Specialists' security work is designed to protect Agency employees and processes, such as computer systems. In support, the RD relied on Specialists' role in ensuring the security of the ten campuses that process millions of tax returns and can process deposits of over one million dollars in one weekend, as well as other Agency facilities that contain computers having access to the Agency's integrated data retrieval system. See id. In this respect, the RD found that the Specialists restrict access to these facilities and regularly conduct risk assessments and compliance reviews in order to detect security vulnerabilities at these facilities.
The RD also found that when natural disaster emergencies occur, Specialists are directly involved in efforts to secure or monitor the security of the affected facilities, and cited the Specialists' role during Hurricanes Katrina and Rita in support. In such emergencies, the RD also found that Specialists engage in security-related activities to promote the continuity of Agency operations, such as when Specialists worked quickly to acquire and issue identification media to thousands of employees who were displaced as a result of the flood at Agency headquarters.
Based on the foregoing, the RD concluded that the security work performed by the Specialists "directly relates to the security of [Agency] physical facilities and databases and these systems are directly related to the protection of the economic and productive strength of the United States." Id. The RD further found that "[t]his includes the security of the Government from sabotage, particularly its databases, processes[,] and facilities." Id. (citing SSA, Baltimore, 59 FLRA at 146). While acknowledging that the Specialists may also engage in work that does not directly affect national security, such as conducting security training for building occupants, the RD found that the Specialists "do not lose their national security status simply because they do not perform national security work all of the time." Id. at 17-18 (citing United States Dep't of Justice, 52 FLRA 1093, 1102-03 (1997) (DOJ) (for the proposition that regular use of, or access to, classified information directly affects national security even if the involvement with classified information occurs rarely)).
Accordingly, having concluded that the Specialists are engaged in security work that directly affects national security within the meaning of § 7112(b)(6) of the Statute, the RD found that the Specialists must be excluded from the bargaining unit.
III. Positions of the Parties
A. Union's Application for Review
The Union requests review on the ground that the RD failed to apply established law, or, in the alternative, that Authority precedent warrants reconsideration. The Union also claims that the RD's Decision and Order presents an issue for which there is an absence of precedent.
With respect to its first claim, the Union asserts that the Authority should "reexamine its approach" to § 7112(b)(6) cases because, if "the . . . [RD]'s decision . . . correctly appl[ies] current Authority precedent[]," then the result is "manifestly unjust" and "at odds with the plain meaning of [§ 7112(b)(6)]." Application for Review at 5. The Union argues that, if the RD correctly applied established law, then SSA, Baltimore "should be reexamined or clarified because it defies logic to say that the work of the employees at issue here `directly affects' national security." Id. at 6.
Regarding the RD's decision, the Union asserts that the RD's analysis of the "directly affects" portion of § 7112(b)(6) "is a multi-step process that makes clear that any effect of the employees' work on the national security is indirect rather than direct." Id. (emphasis in original). As an example, the Union claims that the Specialists' duties with respect to the flood at Agency headquarters were related to national security only through a series of "indirect connections[.]" Id. at 7. The Union asserts that the connection is only indirect because, the Specialists' duties directly related only to securing Agency facilities, which in turn only directly [ v62 p302 ] related to the protection of Agency databases, which in turn directly related to the protection of the economic and productive strength of the United States (i.e., national security). See id. at 6. In support, the Union cites the dissenting opinion in SSA, Baltimore.
Further, again citing the dissent in SSA, Baltimore, the Union urges the Authority to apply the § 7112(b)(6) exclusion cautiously, pointing out that, "[u]nlike other statutory prohibitions on unit inclusions, the (b)(6) exclusion does not derive from notions of inherent conflict of interest." Id. at 7. In support, the Union cites National Labor Relations Board (NLRB) precedent concerning whether private sector screeners have the right to organize and collectively bargain. Id. at 7-8 (citation omitted).
Finally, the Union alleges that there is an absence of precedent with regard to whether an employee can be engaged in "security work" that directly affects national security where an agency "grants that employee no access to classified or even sensitive governmental information." Id. at 8. The Union acknowledges that, under existing precedent, an employee will be found to be engaged in "security work" within the meaning of § 7112(b)(6) if the employee's duties include: (1) the designing, analyzing, or monitoring of security systems or procedures; or (2) the regular use of, or access to, classified information. See id. (citations omitted). However, the Union argues that the lack of a security clearance is "strong evidence" that an employee's duties do not constitute security work within the meaning of § 7112(b)(6) and "should be a powerful presumption" in favor of finding that an employee is not excluded under § 7112(b)(6). Id. at 9.
B. Agency's Opposition
The Agency asserts that the Union has failed to establish that review is warranted under any of the grounds set forth in 5 C.F.R. § 2422.31(c). In this regard, the Agency argues that reconsideration of established law is not warranted because the Authority has already reconsidered and fully developed the definition of "directly affects national security" based on the briefs submitted in response to the Federal Register Notice issued in SSA, Baltimore. The Agency asserts that the arguments raised by the Union here are "essentially no different" from those raised by the amici curiae in SSA, Baltimore, and, as such, the facts of this case do not demonstrate that reconsideration is warranted. Opposition at 5.
The Agency further argues that the RD properly applied established law. As in SSA, Baltimore, where the Authority held that the failure of millions of people to receive Social Security checks would directly impact the national economy, the Agency contends that the Agency's inability to collect the taxes which fund Federal government operations would have a comparable, if not greater, effect on the national economy. See id. at 7. In addition, the Agency also objects to the Union's assertion that the RD's application of the "directly affects" analysis is "tautological" and would categorize all employees as being engaged in work that directly affects national security. Id. (quoting Application for Review at 6-7). According to the Agency, the Union's argument overlooks the narrow framework the Authority has established for evaluating whether an employee is engaged in security work that directly affects national security within the meaning of § 7112(b)(6). The Agency argues that here, the RD specifically applied this framework when he found that the Specialists design, monitor, and analyze security systems, and that they have the ability to alter and influence the safety and emergency preparedness of Agency locations and databases that are vital to the national security. Id. at 8. Thus, in the Agency's view, the RD correctly applied established law.
Finally, the Agency urges the Authority to reject the Union's claim that there is a lack of precedent regarding whether an employee must have access to classified or sensitive information in order to be engaged in "security work" within the meaning of § 7112(b)(6). In this connection, the Agency asserts that the Authority has already addressed this issue, holding that "employees may perform security work that directly affects national security, irrespective of whether they have a security clearance." Id. at 9 (quoting SSA, Baltimore, 59 FLRA at 145). The Agency also argues that there is no absence of precedent regarding the issue raised by the Union because the Authority has already acknowledged that "whether an employee has a security clearance and/or occupies a position designated as sensitive are significant factors in making a determination under § 7112(b)[(]6)." Id.
IV. Analysis and Conclusions
A. The RD did not fail 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 [ v62 p303 ] 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 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); see also United States Dep't of Def., Pentagon Force Prot. Agency, Wash., D.C., 62 FLRA 164, 171 (2007). The Authority has previously defined each of these terms and explained how they are to be applied.
With respect to the first prong, an employee will be found to be "engaged in security work" within the meaning of § 7112(b)(6) if the employee's duties include: (1) the designing, analyzing, or monitoring of security systems or procedures; or (2) the regular use of, or access to, classified information. See, e.g., SSA, Baltimore, 59 FLRA at 144; DOJ, 52 FLRA at 1103. The Authority rejected an 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. SSA, Baltimore, 59 FLRA at 144-45, 145 n.6. 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 mere possession of a security clearance, without more, 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.
2. The Specialists' work directly affects national security.
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]." 5 U.S.C. § 7112(b)(6); SSA, Baltimore, 59 FLRA at 143 (quoting Oak Ridge, 4 FLRA at 655).
Here, the RD found that the Specialists perform "security work" within the meaning of § 7112(b)(6) because they design, analyze, and monitor security systems, and the Union does not dispute this finding. [n6] The Union also does not dispute that the relevant security systems concern national security as that term was applied by the Authority in SSA, Baltimore. Accordingly, the only disputed issue is whether the RD's finding that the Specialists' work "directly affects" national security conflicts with established law, namely SSA, Baltimore.
As explained below, we find that the RD correctly determined that the Specialists' work "directly affects" national security and, thus, that the RD did not fail to apply established law.
In finding that the Specialists' work "directly affects" national security, the RD properly considered whether "there is sufficient evidence of a straight bearing or unbroken connection between the security work performed by the Specialists and national security" and concluded that there was such a connection. RD's Decision at 17 (citing Oak Ridge, 4 FLRA at 655). The RD's determination is consistent with SSA, Baltimore. In this regard, in findings not challenged by the Union, the RD found that the Specialists' security work "is designed to protect [Agency] employees and [Agency] processes, such as computer systems." Id. In support, the RD cites the Specialists' responsibility for: granting and restricting access to Agency facilities; participating in the design, installation, and implementation of security measures; adjusting security systems; directing the work of contractors who install, maintain, and repair security systems; regularly conducting risk assessments and compliance reviews in order to detect security vulnerabilities; securing or monitoring the security of facilities affected by natural [ v62 p304 ] disasters; and engaging in security-related activities to promote the continuity of Agency operations during natural disasters. The RD concluded on these bases that the Specialists' security work directly affects national security because it "directly relates to the security of [Agency] physical facilities and databases and these systems are directly related to the protection of the economic and productive strength of the United States." RD's Decision at 17.
This approach is consistent with SSA, Baltimore. In that case, the Authority held that the disputed employees were engaged in security work that "directly affects" national security where their work included designing, analyzing, or monitoring security systems for the security of, and access to, the agency's databases and physical facilities, and, those security systems were directly related to the protection of the economic and productive strength of the Nation. See SSA, Baltimore, 59 FLRA at 146.
The effect of the Specialists' work on "national security" is comparable to the effect found by the Authority in SSA, Baltimore. There, the incumbents of the disputed positions were responsible for designing, analyzing, or monitoring "security systems for the security of, and access to, [the Social Security Administration's] databases and physical facilities" and these systems were "directly related to the protection of the economic and productive strength of the Nation, including the security of the Government from sabotage, particularly [of] its databases and physical facilities." SSA, Baltimore, 59 FLRA at 146. As found by the RD here, and supported by the record, the Specialists are responsible for designing, analyzing, and monitoring security systems for the security of, and access to, the Agency's (Internal Revenue Service's) databases and physical facilities, and the Union does not dispute that these systems are directly related to the protection of the economic and productive strength of the Nation, including the security of the Government from sabotage, particularly of its databases and physical facilities. Thus, the RD correctly applied SSA, Baltimore.
Further, contrary to the Union's assertion that the Specialists' duties are related to national security only through a series of "indirect connections[,]" Application for Review at 7, the record evidence supports a conclusion that the chain of causation between the Specialists' work and national security is direct. As found by the RD, any disruption to the Agency's ability to collect taxes, which allows for the funding of governmental operations, would greatly impact the Nation's economic strength, and, thus, the national security. See RD's Decision at 15. Consequently, protecting Agency facilities where tax returns are processed is essential to ensuring that the Agency can collect revenue to fund the operations of the Federal government, which is a national security concern. In this regard, the record demonstrates that the work the Specialists perform and the security decisions they make are critical to protecting the Agency's databases and physical facilities. The Specialists are personally and directly responsible for designing, analyzing, and monitoring the security of their assigned physical facilities. Specifically, the Specialists: grant and restrict access to Agency facilities through the issuance and deactivation of key cards; determine the type of security systems to be utilized in Agency facilities (i.e. alarms, surveillance cameras, locks), as well as the placement of such systems; have direct responsibilities related to the work of contractors who install, maintain, and repair security systems; periodically test the effectiveness of these security measures (i.e. alarms); detect security vulnerabilities at Agency facilities and make the necessary adjustments; and secure and monitor facilities affected by natural disasters (e.g. Hurricanes Katrina and Rita) in order to promote the continuity of Agency operations. There are, therefore, no intervening steps between the Specialists' duties and the potential effects on national security if the Specialists fail to perform their duties. Thus, there is a direct connection between the Specialists' duties and national security.
Based on the foregoing, we find that the Specialists are engaged in security work that directly affects national security and we reject the Union's claim that the RD failed to apply established law.
B. Authority precedent does not warrant reconsideration.
The Union claims that SSA, Baltimore warrants reconsideration because, as applied here, it sanctions the exclusion from a bargaining unit of employees whose duties have only an indirect connection to national security. In support, the Union cites and essentially relies upon the reasoning set forth in the dissent in SSA, Baltimore. However, the Union does not argue that a standard other than that applied in SSA, Baltimore, and here by the RD, should be used to evaluate whether the "directly affects" test set forth in SSA, Baltimore is satisfied.
[ v62 p305 ] Accordingly, the Union's claim fails to establish that reconsideration of Authority precedent is warranted. [n7] The Union's claim that reconsideration is warranted, relying exclusively on the position taken by the dissent in SSA, Baltimore, amounts only to a disagreement with SSA, Baltimore. See, e.g, United States Dep't of Agric., Forest Serv., Los Padres Nat'l Forest, Goleta, Cal., 60 FLRA 644, 651 (2005) (Chairman Cabaniss dissenting) (no basis for reconsideration of Authority precedent where respondent raised substantively identical arguments to those that had been previously raised and rejected); see also United States Dep't of Veterans Affairs, VA Conn. Healthcare System, West Haven, Conn., 61 FLRA 864, 870 n.4 (2006) (review not warranted where union asserted, without explanation, that Authority precedent warranted reconsideration).
C. There is not an absence of precedent.
For the reasons set forth below, we find that the Union's claim, that there is an absence of precedent regarding whether employees who do not have access to classified or sensitive information may be excluded under § 7112(b)(6), is without merit.
Initially, contrary to the Union's claim, Authority precedent specifically addresses whether possession of a security clearance is necessary for an employee to be excluded from a bargaining unit pursuant to § 7112(b)(6). In this connection, in SSA, Baltimore, the Authority explicitly held that employees may perform security work that directly affects national security, "irrespective of whether they have a security clearance." SSA, Baltimore, 59 FLRA at 145. The Authority further 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). However, the Authority clearly held that "the absence of such factors does not automatically compel a conclusion that § 7112(b)(6) is inapplicable in a particular situation." Id. at 145. Thus, under existing precedent, whether or not an employee holds a security clearance, or occupies a position designated as sensitive, is not dispositive of whether that employee should be included or excluded under § 7112(b)(6).
Moreover, contrary to its claim, the Union acknowledges that under existing precedent, an employee is engaged in "security work" within the meaning of § 7112(b)(6) if the employee's duties include either: (1) the designing, analyzing, or monitoring of security systems or procedures; or (2) the regular use of, or access to, classified information. See, e.g., SSA, Baltimore, 59 FLRA at 143; DOJ, 52 FLRA at 1103. In particular, the Union recognizes that the test for determining whether an employee is engaged in "security work" is applied in the disjunctive. Application for Review at 8-9. Further, the Union does not challenge the RD's finding that the Specialists are engaged in the designing, analyzing, or monitoring of security systems or procedures. Accordingly, the Union's claim does not demonstrate that review of the RD's decision is warranted. In this regard, even if the Authority were to apply the test urged by the Union -- under which the lack of a security clearance would be "a powerful presumption" in favor of finding that an employee is not excluded under § 7112(b)(6), Application for Review at 9 -- application of such a test would not change the outcome in this case because the RD's undisputed finding that the Specialists design, analyze, or monitor security systems or procedures would remain undisturbed. Thus, for this reason as well, the union's claim lacks merit.
Accordingly, we reject the Union's contention that there is an absence of precedent regarding whether employees who do not have access to classified or sensitive information may be excluded under § 7112(b)(6).
V. Order
The application for review is denied.
File 1: Authority's Decision in 62
FLRA No.
53 and Opinion of Chairman Cabaniss
File 2: Opinion of Member Pope
Footnote # 1 for 62 FLRA No. 53 - Authority's Decision
The concurring opinions of Chairman Cabaniss and Member Pope are set forth at the end of this decision.
Footnote # 2 for 62 FLRA No. 53 - 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. 53 - Authority's Decision
As relevant here, 5 U.S.C. § 7112(b)(6) excludes from a bargaining unit "any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security[.]"
Footnote # 4 for 62 FLRA No. 53 - Authority's Decision
Prior to the filing of the petition, the disputed positions were classified as GS-342 Facilities Management Consultant positions and were in the bargaining unit. Following the reclassification of these positions as GS-080 Physical Security Specialists, the Agency determined that the positions were excluded from the unit pursuant to § 7112(b)(6) of the Statute on the basis that the Specialists are engaged in security work that directly affects national security, and removed the positions from the unit. See RD's Decision at 6.
Footnote # 5 for 62 FLRA No. 53 - Authority's Decision
The petition initially encompassed 94 employees; the Union withdrew its petition with respect to one employee at the hearing. See Tr. at 10.
Footnote # 6 for 62 FLRA No. 53 - Authority's Decision
Although the Union asserts that there is an absence of Authority precedent regarding whether an employee who does not hold a security clearance can be found to be engaged in security work, see Part C infra., the Union does not directly challenge the RD's determination that the Specialists are engaged in security work because they design, analyze, or monitor security systems or procedures.
Footnote # 7 for 62 FLRA No. 53 - Authority's Decision
Member Beyer notes that it is undisputed that the employees at issue in this case do not hold security clearances or see classified information, supra at 3, and also notes that there is no indication that the employees have been designated as "sensitive" under Executive Order 10450. Concurring Opinion of Chairman Cabaniss at 1. In this circumstance, there is no basis for raising sua sponte the issue of whether the Authority's precedent concerning such employees should be clarified and reconsidered. Further, contrary to the concurring opinion, the Authority clearly and plainly resolved the issue of automatic exclusions in United States Dep't of Justice, Washington, D.C., 62 FLRA No. 52, slip op. at 12, 13 (2007).