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U.S. Federal Labor Relations Authority

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File 2: Opinion of Member Pope

[ v59 p148 ]

Opinion of Member Carol Waller Pope, concurring in part and dissenting in part:

      Section 7112(b)(6) of the Statute provides that individual employees are excluded from bargaining units where they are "engaged in . . . security work which directly affects national security[.]" There is no dispute that the employees at issue here are engaged in security work. The two issues to be resolved are whether the work of these employees involves the national security and, if it does, whether the work has the requisite direct effect on national security.

      I agree with the majority that Congress gave the Authority the responsibility to make bargaining unit exclusion determinations under section 7112(b)(6) and that the Authority should continue to apply the definition of the term "national security" set out in Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644, 655-56 (1980) (Oak Ridge). In my view, that definition applies easily to threats to our national security such as the recent terrorist attacks on federal buildings, even though these particular acts may not have been perceived as threats in 1978 when the Statute was enacted.

      I also agree with the majority that the protection of the central computer systems of the Social Security Administration concerns the "national security," as the Authority defined that term in Oak Ridge.  [*]  In particular, the findings of the RD concerning the importance of the social security payment system to the national economy, see Decision at 21-22, demonstrate that protecting the central computer systems that run that system is well within the Oak Ridge definition, because it is "directly related to the protection and preservation of the . . . economic[] and productive strength of the United States, including the security of the Government in domestic and foreign affairs, against . . . sabotage[.]" 4 FLRA at 655-56. The disputed positions are, therefore, subject to exclusion under section 7112(b)(6) if their duties "directly affect[]" national security.

      Applying the "directly affects" test to the Electronics Technicians (ETs), I would find that the security work that they perform does directly affect national security. It is undisputed that their duties include: (1) the design, implementation, and installation of comprehensive security systems, including closed-circuit TV monitoring systems; (2) complete access to security measures protecting buildings, including card access and security systems; and (3) the ability to program security and camera systems. The security systems these employees work on are critical to the protection of the central information system, and the decisions that they make, in installing and operating these systems, are an important aspect of the success of the system. Further, these employees are personally and directly responsible for these critical systems. That is, there are no intervening steps between the duties of these employees and the potential effects on national security. There is, therefore, a direct connection between the two.

      Applying this same test to the two Physical Security Specialist (PSS) positions, I reach a contrary conclusion. The first of these positions (PD #8B349), which is encumbered by one employee, involves conducting site surveys of field offices and headquarters facilities, drafting security policies and procedures for an administrative manual, and day-to-day responsibilities for responding to reported emergencies. The incumbent of the position also serves as a contact with outside parties, and may work with other SSA offices to correct security deficiencies that are uncovered in site surveys. Although these duties relate to the security of the agency, the actual effect of these duties on the protection of the agency is indirect, not direct.

      The second PSS position(PD #8B356), which is encumbered by two employees, also has no direct effect on national security, in my view. These employees provide routine security services for SSA facilities. Although certain of their duties are similar to those of the first PSS position, such as developing and implementing security procedures at specific facilities, they also perform day-to-day security duties, such as responding to potential threats and coordinating with local law enforcement, both over security issues and police requests to arrest or serve subpoenas on agency employees. Along with other employees, and in certain circumstances in consultation with the FBI, they have some responsibility for granting access to the facility by non-employees. However, a significant portion of these employee's work time is spent writing parking tickets. [ v59 p149 ] In my view, these routine security duties do not directly affect national security.

      The majority's conclusion that all of these employees are excluded from the unit is not based on a finding that there is a direct connection between their duties and national security. Rather, the majority finds that these employees work on "systems" that "are directly related to" national security. Majority Opinion at 23. This line of reasoning permits just what the Statute does not. Section 7112(b)(6) requires that the "employee" be "engaged in . . . work which directly affects national security[.]" By focusing on the systems the employees support, rather than the employees' work itself, the majority in effect modifies the statutory standard, permitting exclusion where the connection is indirect, rather than direct.

      For the reasons stated, I concur in the majority's conclusion that the ET positions are excluded from the bargaining unit and dissent from its conclusion that the PSS positions are excluded.

File 1: Authority's Decision in 59 FLRA No. 26
File 2: Opinion opf Member Pope

Footnote * for 59 FLRA No. 26 - Opinion of Member Pope

   Virtually all government agencies exist to promote and protect important national interests. Nevertheless, not all of their activities are, in my view, sufficiently sensitive or related to national security interests, within the meaning of Oak Ridge. Thus, the term "national security" should not be confused with "governmental security" or "governmental interests." I note, in this connection, that unlike other statutory prohibitions on inclusion in a bargaining unit --such as supervisors and management officials as set forth in § 7112(b) -- there is no inherent conflict of interest arising when bargaining unit members perform duties relating to security work. As such, the Authority should be cautious in applying § 7112(b)(6) and should take special care to ensure that employees' statutory rights to organize and bargain collectively are not unnecessarily restricted in the guise of protecting governmental security interests that, while important, do not rise to the level of national security.