Department of the Navy, Naval Telecommunications Center, Ward Circle (Activity) and Navtelcom Unit Local No. 1, American Federation of Government Employees, AFL-CIO (Petitioner)  

 6 FLRA No. 95
 
 DEPARTMENT OF THE NAVY,
 NAVAL TELECOMMUNICATIONS CENTER,
 WARD CIRCLE
 Activity
 
 and
 
 NAVTELCOM UNIT LOCAL NO. 1,
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Petitioner
 
                                            Case No. 3-RO-46
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED WITH THE AUTHORITY UNDER SECTION 7111(B)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 A HEARING WAS HELD BEFORE A HEARING OFFICER OF THE AUTHORITY.  /1/ THE
 AUTHORITY HAS REVIEWED THE HEARING OFFICER'S RULINGS MADE AT THE HEARING
 AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR.  /2/ THE RULINGS
 ARE HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING POST-HEARING BRIEFS
 FILED BY THE PARTIES, /3/ THE AUTHORITY FINDS:  AFGE SEEKS TO REPRESENT
 A UNIT OF ALL GENERAL SCHEDULE (GS) EMPLOYEES OF THE DEPARTMENT OF THE
 NAVY, NAVAL TELECOMMUNICATIONS CENTER, WARD CIRCLE (THE ACTIVITY),
 EXCLUDING ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS
 AND EMPLOYEES DESCRIBED IN SECTION 7112(B)(2), (3), (4), (6) AND (7) OF
 THE STATUTE.  /4/
 
    THE ACTIVITY AND OPM ASSERT THAT THE AUTHORITY HAS NO JURISDICTION TO
 PROCESS THIS CASE BECAUSE OF PRESIDENTIAL EXECUTIVE ORDER 12171 (44
 FED.REG. 66566(1979)) ISSUED PURSUANT TO SECTION 7103(B) OF THE STATUTE
 /5/ WHICH PERMITS THE PRESIDENT TO EXCLUDE "ANY AGENCY OR SUBDIVISION
 THEREOF" FROM COVERAGE UNDER THE STATUTE ON NATIONAL SECURITY GROUNDS.
 EXECUTIVE ORDER 12171 SECTION 1-101 PROVIDES, IN PERTINENT PART:  "THE
 AGENCIES OR SUBDIVISIONS THEREOF SET FORTH IN SECTION 1-2 OF THIS ORDER
 ARE HEREBY DETERMINED TO HAVE AS A PRIMARY FUNCTION INTELLIGENCE,
 COUNTERINTELLIGENCE, INVESTIGATIVE, OR NATIONAL SECURITY WORK. . . .
 THE AGENCIES OR SUBDIVISIONS THEREOF SET FORTH IN SECTION 1-2 OF THE
 ORDER ARE HEREBY EXCLUDED FROM COVERAGE UNDER CHAPTER 71 OF TITLE 5 OF
 THE UNITED STATES CODE." EXECUTIVE ORDER 12171 SECTION 1-205 PROVIDES
 FOR THE EXCLUSION OF "AGENCIES OR SUBDIVISIONS OF THE DEPARTMENT OF THE
 NAVY, DEPARTMENT OF DEFENSE" INCLUDING "(G) UNITS COMPOSED PRIMARILY OF
 EMPLOYEES ENGAGED IN THE OPERATION, REPAIR, AND/OR MAINTENANCE OF "OFF
 LINE" OR "ON LINE" CRYPTOGRAPHIC EQUIPMENT" AND "(H) UNITS COMPOSED
 PRIMARILY OF EMPLOYEES OF NAVAL TELECOMMUNICATIONS ACTIVITIES IN
 POSITIONS WHICH REQUIRE A CRYPTOGRAPHIC AUTHORIZATION."
 
    WHERE THE PRESIDENT HAS SPECIFICALLY EXCLUDED AN AGENCY OR ACTIVITY
 FROM COVERAGE UNDER THE STATUTE BY ISSUING AN EXECUTIVE ORDER, THE
 AUTHORITY IS CLEARLY WITHOUT JURISDICTION TO PROCESS A REPRESENTATION
 PETITION.  /6/ WHERE, HOWEVER, THE PRESIDENT ISSUES AN EXECUTIVE ORDER
 WHICH DOES NOT SPECIFICALLY EXCLUDE AN ENTIRE AGENCY OR ACTIVITY FROM
 COVERAGE BUT INSTEAD EXCLUDES PARTICULAR GROUPINGS OF EMPLOYEES, AS IN
 THE INSTANT CASE, THE AUTHORITY MUST DETERMINE WHETHER, AS A THRESHOLD
 FACTUAL MATTER, THE EXECUTIVE ORDER IS APPLICABLE TO THE EMPLOYEES IN
 QUESTION.  IF IT IS DETERMINED THAT THE EXECUTIVE ORDER APPLIES, THEN
 THE AUTHORITY IS WITHOUT JURISDICTION TO PROCESS A REPRESENTATION
 PETITION WITH RESPECT TO THOSE EMPLOYEES.  ACCORDINGLY, WE NOW TURN TO A
 CONSIDERATION OF THAT ISSUE.
 
    THE ACTIVITY IS ONE OF SIX TELECOMMUNICATIONS CENTERS WITHIN THE
 NAVAL COMMUNICATION UNIT, WASHINGTON, D.C.  THE ACTIVITY'S MISSION IS TO
 MANAGE, OPERATE AND MAINTAIN THOSE FACILITIES, SYSTEMS, EQUIPMENT AND
 DEVICES NECESSARY TO PROVIDE REQUISITE COMMUNICATION FOR THE COMMAND,
 OPERATIONAL CONTROL AND ADMINISTRATION OF THE DEPARTMENT OF THE NAVY.
 IT IS A SEPARATE ENTITY WITH ITS OWN ORGANIZATION, AND IS PART OF A
 LARGER ORGANIZATION ONLY IN THE SENSE OF BEING WITHIN A CHAIN OF
 COMMAND.  IN THIS REGARD, THE ACTIVITY HAS ITS OWN IDENTIFICATION NUMBER
 FOR FINANCIAL, PERSONNEL AND ORGANIZATIONAL MATTERS, INCLUDING ITS OWN
 ALLOCATION OF CIVILIAN CEILINGS AND ITS OWN ADMINISTRATIVE STRUCTURE.
 
    THE ACTIVITY OPERATES CRYPTOGRAPHIC EQUIPMENT WHICH PROVIDES SECURITY
 FOR ITS OWN TELECOMMUNICATIONS AS WELL AS THE TELECOMMUNICATIONS OF THE
 VARIOUS COMMANDS THAT IT SERVICES.  THERE ARE 17 INDIVIDUALS ENGAGED IN
 THE ACTIVITY'S OPERATIONS:  13 ARE MILITARY PERSONNEL;  THE OTHER 4 ARE
 CIVILIAN EMPLOYEES WHO COMPRISE THE UNIT SOUGHT HEREIN.  ALL FOUR OF
 THESE EMPLOYEES ARE ENGAGED IN THE OPERATION, MAINTENANCE AND REPAIR OF
 "OFF LINE" AND "ON LINE" CRYPTOGRAPHIC EQUIPMENT ON A DAILY BASIS.  THE
 AMOUNT OF SUCH WORK VARIES ACCORDING TO HOW EFFICIENTLY THE EQUIPMENT IS
 OPERATING ON A PARTICULAR DAY.  MINOR REPAIRS AND MAINTENANCE ARE
 PERFORMED BY THE FOUR EMPLOYEES, WHILE MAJOR REPAIRS ARE DONE ELSEWHERE.
  AT ONE TIME, ALL THE EMPLOYEES' POSITIONS REQUIRED A FORMAL
 CRYPTOGRAPHIC AUTHORIZATION;  HOWEVER, SUCH FORMAL AUTHORIZATIONS ARE NO
 LONGER REQUIRED.  INSTEAD, ALL FOUR EMPLOYEES NOW ARE REQUIRED TO HAVE A
 TOP SECRET CLEARANCE AND A "NEED-TO-KNOW" FOR ACCESS TO AREAS WHERE
 CRYPTOGRAPHIC INFORMATION CAN BE VIEWED.
 
    BASED ON THE FOREGOING, THE AUTHORITY FINDS THAT THE ACTIVITY IS A
 SEPARATE ORGANIZATIONAL UNIT OR SUBDIVISION WITHIN THE DEPARTMENT OF THE
 NAVY, AND THAT THE FOUR EMPLOYEES WITHIN THE PROPOSED UNIT ARE ENGAGED
 IN THE OPERATION, REPAIR AND MAINTENANCE OF "OFF LINE" AND "ON LINE"
 CRYPTOGRAPHIC EQUIPMENT.  ACCORDINGLY, THE ACTIVITY IS EXCLUDED FROM
 COVERAGE OF THE STATUTE PURSUANT TO SECTION 7103(B) AND EXECUTIVE ORDER
 12171, SECTION 1-205(G), /7/ AND AFGE'S PETITION MUST THEREFORE BE
 DISMISSED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 3-RO-46 BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE PETITION HEREIN, FILED BY NAVTELCOM UNIT LOCAL NO. 1,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), WAS
 INITIALLY DISMISSED BY THE REGIONAL DIRECTOR ON THE GROUND THAT THE UNIT
 SOUGHT DOES NOT CONSTITUTE AN APPROPRIATE UNIT WITHIN THE MEANING OF
 SECTION 7112 OF THE STATUTE BECAUSE IT IS COMPOSED PRIMARILY OF
 EMPLOYEES WHO WERE EXCLUDED FROM COVERAGE UNDER THE STATUTE BY
 EXECUTIVE
 ORDER 12171, SECTION 1-205(G) AND (H).  ON JULY 23, 1980, PURSUANT TO A
 TIMELY REQUEST FOR REVIEW FILED BY AFGE, THE AUTHORITY REMANDED THE CASE
 TO THE REGIONAL DIRECTOR FOR A HEARING SO AS TO DEVELOP A FULL AND
 COMPLETE RECORD.
 
    /2/ AFGE, IN ITS POST-HEARING BRIEF, CONTENDS THAT THE HEARING
 OFFICER IMPROPERLY SUSTAINED THE ACTIVITY'S OBJECTIONS TO AFGE'S
 QUESTIONS CONCERNING WHETHER UNIT EMPLOYEES ARE ENGAGED IN THE
 OPERATION, REPAIR AND/OR MAINTENANCE OF "ON LINE" AND "OFF LINE"
 CRYPTOGRAPHIC EQUIPMENT, AN ESSENTIAL FACTUAL QUESTION HEREIN.  THE
 HEARING OFFICER FOUND THE QUESTIONS IMPROPER AS TO FORM.  HOWEVER, THE
 RECORD INDICATES THAT THE HEARING OFFICER SUBSEQUENTLY ASKED QUESTIONS
 OF THREE WITNESSES WITH RESPECT THERETO, SO THAT EVIDENCE IN THIS REGARD
 IS IN THE RECORD AND HAS BEEN CONSIDERED BY THE AUTHORITY.  ACCORDINGLY,
 AFGE WAS NOT PREJUDICED BY THE HEARING OFFICER'S RULING.
 
    /3/ PURSUANT TO PERMISSION GRANTED BY THE AUTHORITY UNDER SECTION
 2429.9 OF ITS RULES AND REGULATIONS, THE OFFICE OF PERSONNEL MANAGEMENT
 (OPM) PARTICIPATED AS AMICUS CURIAE IN THIS PROCEEDING AND FILED A
 POST-HEARING BRIEF.
 
    /4/ THE UNIT IS SET FORTH AS AMENDED AT THE HEARING.
 
    /5/ SECTION 7103(B) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
   .          .          .          .
 
 
    (B)(1) THE PRESIDENT MAY ISSUE AN ORDER EXCLUDING ANY AGENCY OR
 SUBDIVISION THEREOF FROM
 
    COVERAGE UNDER THIS CHAPTER IF THE PRESIDENT DETERMINES THAT--
 
    (A) THE AGENCY OR SUBDIVISION HAS AS A PRIMARY FUNCTION INTELLIGENCE,
 COUNTERINTELLIGENCE,
 
    INVESTIGATIVE, OR NATIONAL SECURITY WORK, AND
 
    (B) THE PROVISIONS OF THIS CHAPTER CANNOT BE APPLIED TO THAT AGENCY
 OR SUBDIVISION IN A
 
    MANNER CONSISTENT WITH NATIONAL SECURITY REQUIREMENTS AND
 CONSIDERATIONS.
 
    /6/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2118 AND DEPARTMENT OF ENERGY, ALBUQUERQUE OPERATIONS, LOS ALAMOS
 AREA OFFICE, 2 FLRA 916(1980);  U.S. DEPARTMENT OF THE TREASURY, BUREAU
 OF ALCOHOL, TOBACCO AND FIREARMS, BOSTON DISTRICT OFFICE, CRIMINAL
 ENFORCEMENT, 3 FLRA NO. 4(1980).
 
    /7/ INASMUCH AS THE ACTIVITY IS EXCLUDED FROM COVERAGE OF THE STATUTE
 BY SECTION 1-205(G), THE AUTHORITY FINDS IT UNNECESSARY TO DECIDE
 WHETHER SECTION 1-205(H) PROVIDES AN ADDITIONAL BASIS FOR SUCH
 EXCLUSION.