United States Department of the Air Force, Davis-Monthan Air Force Base, Arizona (Agency/Activity) and American Federation of Government Employees, Local 2924 (Union/Petitioner)
[ v62 p332 ]
62 FLRA No. 58
DEPARTMENT OF THE AIR FORCE
DAVIS-MONTHAN AIR FORCE BASE, ARIZONA
OF GOVERNMENT EMPLOYEES
APPLICATION FOR REVIEW
January 8, 2008
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member [n1]
I. Statement of the Case
This case is before the Authority on an application for review filed by the American Federation of Government Employees, Local 2924 (Union) under § 2422.31 of the Authority's Regulations. [n2] The United States Department of the Air Force, Davis-Monthan Air Force Base (Activity) filed an opposition to the Union's application.
As amended at the hearing, the Union filed a petition seeking to clarify the unit status of six employees. 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
As amended at the hearing, the Union filed a petition seeking to clarify the unit status of the following six employees: a GS-0318-07/09 Secretary (Office Automation) ("Secretary 1"), a GS-0318-08 Secretary (Office Automation) ("Secretary 2"), a GS-0301-11 Protocol Officer ("Protocol Officer"), and three GS-0343-12 Program Analysts ("Analyst 1," "Analyst 2," and "Analyst 3"). The Activity asserted that each of the disputed employees is engaged in national security work within the meaning of § 7112(b)(6). [n4]
As found by the RD, all of the disputed employees are employed by the Activity's 12th Air Force (AFSOUTH), which is the air component of the United States Southern Command (USSOUTHCOM). USSOUTHCOM's area of responsibility (AOR) includes 32 countries in Central and South America. AFSOUTH conducts air, space, and information operations "in support of USSOUTHCOM and other agencies conducting a global war on terrorism, counternarco-terrorism, force protection, humanitarian assistance, and theater security cooperation operations." RD's Decision at 4. AFSOUTH is divided into the Combined Air Operations Center (CAOC) and the Air Force Forces (AFFOR).
[ v62 p333 ] All of the disputed employees possess at least a secret security clearance. [n5] See id. at 4. As described below, several of the employees have access to a classified computer network, called SIPRNET, which contains unclassified data and data classified up to the secret level.
Secretary 1 is the secretary for the Vice Commander (VC) and the Chief of Staff (COS) of AFSOUTH; she is primarily responsible for scheduling and maintaining the calendars of the VC and COS. Secretary 1 views classified documents several times per week. In this regard, Secretary 1 reads everything that the VC and COS sign, including classified materials, checking for typographical and formatting errors. In addition, Secretary 1 secures classified documents in a safe and is responsible for shredding classified documents that are ready to be destroyed. Further, Secretary 1 distributes incoming classified materials to the VC and COS, "which may include information on troop movements and monthly reports on the status of personnel, training, and equipment resources." RD's Decision at 5. Each morning, either Secretary 1 or Secretary 2 accesses the office safe containing the SIPRNET laptops and is responsible for setting the laptops up and/or securing them at the end of the day. In the absence of the VC or COS, Secretary 1 answers classified phones approximately once per month. In Secretary 2's absence, Secretary 1 also performs secretarial duties for the Commander of AFSOUTH.
Secretary 2 serves as the secretary to the Commander of AFSOUTH; she is primarily responsible for reviewing unclassified correspondence requiring the Commander's signature, scheduling and maintaining the Commander's calendar, answering phones, and screening visitors. Secretary 2 views classified information on a weekly basis, "which may include information on troop deployments." Id. at 6. In reviewing classified documents, Secretary 2 checks for typographical and formatting errors. Like Secretary 1, Secretary 2 answers classified phones in the Commander or VC's absence. In addition, Secretary 2 accesses her own SIPRNET account approximately six to seven times per year with regard to travel itineraries.
The Protocol Officer is responsible for preparing for, and hosting, all visitors to AFSOUTH. The visits of individuals such as the President of the United States, four-star generals, and the Commander of USSOUTHCOM are classified. The Protocol Officer's duties entail planning itineraries; arranging for meals, lodging, and transportation; coordinating with escorts and briefers; and answering questions that invitees have about how to address a dignitary or how to line up when the dignitary's plane lands. The Protocol Officer also prepares "visit books" for visitors that may contain classified information. Id. at 8. Sometimes the Protocol Officer's duties require her to travel to the AOR; she receives classified intelligence briefings prior to doing so. In addition, the Protocol Officer attends classified security briefings on at least a weekly basis.
Analyst 1 primarily performs personnel-related duties for civilian and military employees of the CAOC. Analyst 1 uses his SIPRNET account weekly to obtain classified information "such as mission data relevant to incoming personnel and facts needed to develop position papers, decision papers, or briefings on manpower, organizational, and other issues." Id.
Analyst 2 serves as a Foreign Disclosure Officer; his primary duties involve reviewing publications and developing "concepts for team cooperation with partner nations in South America consistent with combatant commanders' theater strategies." Id. at 9. In this connection, Analyst 2 "reviews Air Force, joint, and multi-service publications dealing with aerospace doctrine in order to update the publications with respect to current military tactics, techniques, and procedures, and to correct for grammar and punctuation." Id. Analyst 2 also helps compose orders for the Commander, as directed by his supervisor. In addition, Analyst 2 reviews classified operational plans every two to three years. Further, Analyst 2 accesses his own SIPRNET account on a daily basis to perform research and to maintain situational awareness on the USSOUTHCOM's AOR. Analyst 2 sees classified information daily.
Analyst 3 is primarily "devoted to the mission of fostering and maintaining military contacts with countries in the AOR." Id. at 11. In addition, Analyst 3 reviews contingency plans for events in the AOR, such as disasters necessitating humanitarian relief, and updates or helps write new contingency plans as necessary. Analyst 3 uses classified intelligence information in updating some of his plans. Like Analyst 2, Analyst 3 accesses his own SIPRNET account on a daily basis. Analyst 3 sees both classified and intelligence information multiple times per week. [ v62 p334 ]
B. RD's Decision
The RD found that each of the six employees holds a position that requires the regular use of, or access to, classified information. See id. at 16-18. Based on this finding, the RD concluded, citing United States Department of Justice, 52 FLRA 1093 (1997) (DOJ), that each of the employees is engaged in "security work" within the meaning of § 7112(b)(6). See id.
The RD rejected the Union's assertion that the employees' work does not directly affect national security. According to the RD, in DOJ the Authority held that positions requiring the regular use of, or access to, classified information "by their nature are necessary to protect the national security." Id. at 18. Relying on this interpretation, the RD concluded that "the positions at issue in th[e] petition directly affect national security and, consistent with DOJ, are clarified as excluded from the bargaining unit." Id. at 18-19. [n6]
III. Positions of the Parties
A. Union's Application for Review
The Union requests review of the RD's decision on the ground that the RD failed to apply established law. Specifically, although the Union does not dispute that the employees are engaged in "security work" within the meaning of § 7112(b)(6), the Union claims that the RD failed to examine whether the employees are "engaged in activities that ha[ve] a direct or unbroken material influence on national security[.]" Application for Review at 3. In this connection, the Union asserts that the RD failed to consider witness testimony that the employees are not engaged in work that directly affects national security.
The Union further argues that this case is similar to United States Department of Defense, Pentagon Force Protection Agency, Washington, D.C., 62 FLRA 164, 171 (2007) (Pentagon), in which the Authority found that the RD erred by failing to consider the actual duties of the disputed employees and remanded the case to the RD to determine whether the employees' work directly affects national security. The Union contends that the RD committed a similar error here and requests that the Authority grant the application for review and remand to the RD "to conduct an analysis of the relationship between the actual duties of the employees [in] question and national security." Id. at 5.
B. Activity's Opposition
The Activity asserts that the RD properly determined that the employees are excluded from the unit under § 7112(b)(6) of the Statute, as set forth in its post-hearing brief to the RD. There, in arguing that the six disputed employees should be excluded under § 7112(b)(6), the Activity relied on its assertion that all of the employees have access to classified information that "goes to the military strength of the United States." Post-Hearing Brief at 26. With respect to Analyst 2 and Analyst 3, the Activity also argued that their involvement with classified information goes beyond mere access and entails analysis of classified material. The Activity further argued that the length of time the disputed employees perform work involving classified material is not dispositive of whether they perform "security work" under the Statute. In this regard, the Activity contends that the Authority has stated that the purpose of granting security clearances "is to have available employees eligible for access to classified information whenever the need arises." Id. at 27 (citing United States Dep't of the Army, Corps of Eng'rs, U.S. Army Eng'r Research Dev. Ctr., Vicksburg, Miss., 57 FLRA 834, 837 (2002) (Army Corps of Eng'rs) (citing DOJ, 52 FLRA at 1103)).
A. Legal Standard
In order to determine whether an employee is excluded under § 7112(b)(6), the analysis must consider whether employees are: "(1) engaged in security work that (2) directly affects (3) national security." Pentagon, 62 FLRA at 171 (citing 5 U.S.C. § 7112(b)(6)).
As relevant here, an employee will be found to be "engaged in security work" within the meaning of § 7112(b)(6) if the employee's duties include "the regular use of, or access to, classified information." See, e.g., Social Security Administration, Baltimore, Md., 59 FLRA 137, 143 (2003) (Chairman Cabaniss concurring and Member Pope dissenting, in part) (SSA, Baltimore); DOJ, 52 FLRA at 1103.
[ v62 p335 ] The Authority has defined the term "directly affects" 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; Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644, 655 (1980) (Oak Ridge).
Further, the Authority has held that the term "national security" includes:
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.
SSA, Baltimore, 59 FLRA 143 (quoting Oak Ridge, 4 FLRA at 655-56).
B. The RD's Decision is consistent with established law.
As set forth previously, the Union does not dispute the RD's finding that the employees are engaged in "security work." Application for Review at 3. Thus, in the present case, we need only consider whether the RD failed to apply established law with respect to the second and third prongs of the test set forth above -- whether the employees' security work (2) directly affects (3) national security.
We find that the RD's decision is consistent with established law. In DOJ, the Authority held that "a position that requires the regular use of, or access to, classified information is one that is necessary to protect the national security." DOJ, 52 FLRA at 1103 (citation omitted). Applying that principle, the Authority ruled that particular employees who occupied such positions were engaged in security work that directly affected national security. In reaching this conclusion, the Authority did not explicitly analyze whether the disputed employees' work "directly affect[ed]" national security within the meaning of § 7112(b)(6). See id; see also Army Corps of Eng'rs, 57 FLRA at 836-37.
Although DOJ and Army Corps of Eng'rs did not include explicit findings on the "directly affects" prong of the § 7112(b)(6) analysis discussed above, the decisions should not be read as making it unnecessary to find that (1) the employees in question perform security work and that (2) the work directly affects (3) national security. Not only is the Statute plainly worded on this point; the Authority also clearly stated in both cases that the appropriate analysis includes consideration of whether the work of the disputed employees "directly affects" national security. See Army Corps of Eng'rs, 57 FLRA at 836 ("If an employee is engaged in security work, as so defined, which directly affects national security, the employee may not be included in a bargaining unit."); DOJ, 52 FLRA at 1101 ("The employees in this case are involved in security work and this work directly affects national security . . . .").
Here, the RD concluded that the work performed by the employees who occupied the disputed positions directly affects national security within the meaning of § 7112(b)(6) based on his finding that the positions require the regular use of, or access to, classified information. The RD did not explicitly analyze whether the disputed employees' work "directly affected" national security. RD's Decision at 18. Nevertheless, we find that the RD's conclusion that the disputed positions directly affect national security within the meaning of § 7112(b)(6) is supported by the record.
In this regard, it is apparent from the record that the classified information being used or accessed by the employees relates to the nation's military strength. Specifically, the record demonstrates that this information pertains to troop movements, troop deployments, the travel of the President and other high-level military officials, mission data, operational plans, and contingency plans. See RD's Decision at 5-10. Thus, the employees' duties affect "national security" insofar as they relate to the "the protection and preservation of the military . . . strength of the United States[.]" SSA, Baltimore, 59 FLRA at 143.
Further, it is apparent from the record that the effect of the employees' work on national security is "direct." In this regard, given the nature of the classified information that each of the six employees regularly uses and accesses (i.e., information pertaining to troop movements, troop deployments, the travel of the President and other high-level military officials, mission data, operational plans, and contingency plans), it is clear that there are no intervening steps between the employees' failure to prevent unauthorized disclosure of the classified information that they use and/or access on a regular basis and the potential effect on national security should they fail to do so. Accordingly, there is a direct connection between the employees' duties and national security.
The present case is distinguishable from United States Department of Justice, Wash., D.C., 62 FLRA [ v62 p336 ] No. 52 (2007) (Chairman Cabaniss concurring in part and dissenting in part) (Dep't of Justice). In Dep't of Justice, the disputed employees held security clearances, but there was no evidence that the employees' duties included the regular -- or any -- use of, or access to, classified information. Here, not only do the employees hold security clearances, but the record is clear that they also have regular use of, or access to, classified information. Thus, this case contrasts with Dep't of Justice, in which the employees held security clearances in the event they would need to use or access classified information at some point in the future, but had never actually used or accessed such information at the time of the hearing.
The present case is also distinguishable from Pentagon. In Pentagon, all of the disputed employees held top secret clearances, but "the evidence [was] limited regarding [the employees'] actual use of classified information in the course of performing their duties[.]" Pentagon, 62 FLRA at 165 (citation omitted). In this regard, the record showed that all of the disputed employees received training concerning the handling of classified information: specifically, they learned "how to recognize and safeguard classified information to which they would normally not have access, but with which they may come in contact in the course of their duties." Id. at 166 (citation omitted) (emphasis added). However, with the exception of one category of employees (i.e., the Protective Services Unit officers), there was no evidence that the other categories of employees had regular -- or any -- use of, or access to, classified information.
Based on the foregoing, we find that each of the six employees is engaged in security work that directly affects national security, and that the RD's decision to this effect is consistent with established law. [n7]
The application for review is denied.
Concurring Opinion of Chairman Cabaniss:
I agree that the Regional Director properly found the positions excluded from the bargaining unit as employees that are engaged in security work that directly affects national security under § 7112(b)(6).
I once again raise those concerns that I addressed in my Dissenting Opinion in United States Department of Justice, Washington, D.C., 62 FLRA No. 52, slip op. at 19-20 (2007), and my Concurring Opinion in United States Department of the Treasury, Internal Revenue Service, 62 FLRA No. 53, slip op. at 14 (2007), regarding our failure to squarely address the lack of clarity surrounding the line of cases in Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644 (1980), United States Department of Justice, 52 FLRA 1093 (1997), and Social Security Administration, Baltimore, Maryland, 59 FLRA 137, 143 (2003) (Chairman Cabaniss concurring and Member Pope dissenting, in part).
Footnote # 1 for 62 FLRA No. 58 - Authority's Decision
Footnote # 2 for 62 FLRA No. 58 - Authority's Decision
(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. 58 - 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. 58 - Authority's Decision
The Activity also asserted that Secretary 1 and Secretary 2 are confidential employees within the meaning of § 7112(b)(2), and that Analyst 1 is a personnelist in other than a purely clerical capacity within the meaning of § 7112(b)(3).
Footnote # 5 for 62 FLRA No. 58 - Authority's Decision
At the time of the hearing, Secretary 1, the Protocol Officer, and Analyst 3 held secret security clearances; Analyst 1 and Analyst 2 held higher top secret clearances; and Secretary 2 held an even higher top secret/SCI clearance. See RD's Decision at 5, 6, 7, 8, 10. The RD also found that Secretary 1 was in the process of obtaining a top secret clearance, which is necessary to hold her position. See id. at 5. All references to classified information refer to data at or above the level of a secret security clearance.
Footnote # 6 for 62 FLRA No. 58 - Authority's Decision
Having found that all of the disputed positions are excluded under § 7112(b)(6), the RD did not consider the additional bases upon which the Activity asserted that Secretary 1, Secretary 2, and Analyst 1 should be excluded. As we agree with the RD's finding regarding § 7112(b)(6), it is unnecessary to address the additional bases. However, an RD should consider whether it is appropriate to consider the alternative bases for exclusion. The RD is clearly in the best position to make such determinations. Moreover such practice fosters judicial economy by avoiding the need to remand to the RD in the event the Authority overturns the RD's principal rationale for resolving the case. In addition, such practice provides guidance to the parties and the larger labor relations community.
Footnote # 7 for 62 FLRA No. 58 - Authority's Decision
To the extent the Union's Application for Review could be construed as arguing that the RD failed to consider each of the employee's actual duties, we reject this claim. In this regard, it is clear that the RD made specific findings regarding the actual duties of each employee. See RD's D