File 2: Opinion of Member Pope

[ v62 p307 ]


Member Carol Waller Pope, concurring:

      I agree with the majority that the Physical Security Specialists involved in this case should be excluded on the ground that they are engaged in security work that directly affects national security within the meaning of § 7112(b)(6) of the Statute. I write separately because I disagree with the majority's conclusion that these employees should be excluded because they perform the same duties as the disputed physical security specialists in Social Security Administration, Baltimore, Md., 59 FLRA 137 (2003) (Chairman Cabaniss concurring and Member Pope dissenting, in part) (SSA, Baltimore), where I dissented. 59 FLRA at 148-49. I note, at the outset, that the actual duties performed by an employee control the employee's unit status, not the employee's position title. See, e.g., id. at 145. Examining the actual duties performed here and in SSA, Baltimore, it is clear that the duties of the Physical Security Specialists involved in the case now before the Authority extend beyond the conduct of site surveys and implementation of security and emergency plans that I found to have only an indirect effect on national security in SSA, Baltimore. Id. In particular, the Physical Security Specialists now before us are personally and directly responsible for granting access to individuals to Agency facilities based on plans they design and implement. See RD Decision at 7. The physical security specialists in SSA, Baltimore, on the other hand, are `involved" in granting access but, at least as to non-employees, another entity, such as the Federal Bureau of Investigation, participates in granting or denying access. 59 FLRA at 146. Moreover, among other things, the Physical Security Specialists in this case have direct responsibilities related to the work of contractors who install, maintain, and repair security systems. See RD Decision at 7 n.7, 8. There is no indication that the physical security specialists in SSA, Baltimore perform similar tasks.

      Based on the foregoing, I believe that the work of the disputed Physical Security Specialists in this case is akin to that of the Electronics Technician in SSA, Baltimore, which position was found by a unanimous Authority to be excluded from the bargaining unit under § 7112(b)(6) of the Statute. 59 FLRA at 146. In this regard, the Electronics Technician in SSA, Baltimore, like the Physical Security Specialists here, participates in the design, installation and implementation of security measures and, in so doing, works with contractor personnel in ensuring that the necessary work is properly completed. The Physical Security Specialists' work also is similar to the work of the Information Technology Specialists and Manager in dispute in United States Dep't of Justice, Washington, D.C., 62 FLRA No. 52, slip op. at 14-17 (Chairman Cabaniss dissenting as to other matters) (Justice). Those individuals are responsible for, among other things, analyzing and planning solutions to problems reported by customers of the agency's automated booking system, which contains electronic fingerprint, photographic, and biographical data collected from Federal offenders. See id. at 2, 14-17. Noting that, as well as the fact that the individuals directed and tested the work of contractors hired to implement changes to the system, the Authority concluded unanimously that they were excluded from the bargaining unit under § 7112(b)(6) of the Statute. See id. at 14-17.

      Thus, based on the case-by-case examination of job duties required in these cases, and consistent with my positions in SSA, Baltimore and Justice, I agree that the Physical Security Specialists are engaged in security work that directly affects national security under § 7112(b)(6) of the Statute. [n*]  In so doing, I continue to be concerned that because there is no inherent conflict of interest that arises when unit employees perform security work, the Authority should be especially cautious in applying § 7112(b)(6) to deny employees the right to engage in collective bargaining through a certified exclusive representative. The fact remains, however, that § 7112(b)(6) is part of the statutory scheme the Authority is bound to apply in determining unit status. As a result, if the section is now resulting in unit exclusions that were not intended at the time the Statute was enacted, then the "fix" is legislative, not adjudicatory.


File 1: Authority's Decision in 62 FLRA No. 53 and Opinion of Chairman Cabaniss
File 2: Opinion of Member Pope


Footnote # * for 62 FLRA No. 53 - Member Pope

   In addition, while I believe that the majority erred with regard to the physical security specialists in SSA, Baltimore, I do not believe it is necessary to reconsider that decision to resolve the petition here. Likewise, I agree that there is no absence of precedent. Finally, I agree with Member Beyer that: (1) there is no basis for raising sua sponte issues regarding employees holding security clearances or occupying sensitive positions; and (2) contrary to the concurring opinion, the Authority resolved the issue of automatic exclusions in Justice. See Majori