[ v61 p397 ]
61 FLRA No. 73
FOOD SAFETY AND
THE NATIONAL JOINT COUNCIL
OF FOOD INSPECTION LOCALS
OF GOVERNMENT EMPLOYEES
APPLICATION FOR REVIEW
December 7, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on an application for review filed by the Agency under § 2422.31 of the Authority's Regulations. [n1] The Union filed an opposition to the Agency's application for review.
The Union filed a petition seeking to clarify the unit status of employees encumbering the position of Food Inspector (Import), who had been transferred from the Agency's Office of Field Operations to its Office of International Affairs. The Regional Director (RD) determined that the inspectors are not 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) does not bar their inclusion in a collective bargaining unit. [n2] The RD also determined that the inspectors are appropriately included in a stand-alone successor unit in the Office of International Affairs, and he directed the certification of that unit. [n3]
For the following reasons, we deny the application for review.
II. Background and RD's Decision
The Agency realigned the inspectors from its Office of Field Operations to its Office of International Affairs and asserted that the inspectors could no longer be represented by the Union because they were engaged in security work that directly affects national security within the meaning of § 7112(b)(6) of the Statute. The Union filed a petition seeking to clarify the bargaining unit status of the inspectors.
The RD found that the Agency's mission is to ensure that the nation's commercial supply of meat, poultry and egg products is safe, wholesome and correctly labeled and packaged. The RD determined that, prior to importation into the United States, these products must first pass inspection within the products' country of origin. RD Decision at 3. The RD also found that, in addition to being inspected abroad, all cargo entering the United States is subject to inspection by the United States Customs and Border Protection (CBP), a component of the United States Department of Homeland Security, as well as the Animal and Plant Health Inspection Service (APHIS), a component of the Department of Agriculture. In this regard, the RD found that CBP plays a leading role in protecting the country against the importation of cargo that poses a risk for terrorism and weapons of mass destruction, and that APHIS conducts agricultural inspections of incoming [ v61 p398 ] cargo to protect the United States from potential carriers of animal and plant pests and diseases that could cause serious damage to the country's crops, livestock, pets and environment.
The RD determined that, once the products pass inspection abroad and with the CBP and APHIS domestically, they are sent to import houses. The RD found that the import houses are Agency-regulated, privately-owned and -operated warehouse facilities where products are stored and inspected by the inspectors before they are released into domestic commerce. The RD determined that an Agency-wide computer database (the computer database) stores, tracks, and analyzes data regarding inspected products. The RD found that the computer database generates the inspectors' daily assignments, which can involve an inspection of the packaging and paperwork of a product, or a more involved inspection of the product itself, checking for items such as bones, blood clots or foreign materials. The RD determined that, when an inspector decides to refuse entry of a product, he or she must notify the import house's management, his or her supervisor, and the Import Surveillance Liaison Inspector (ISLI), and that only the ISLI and the supervisor may enter that information into the computer database.
The RD also determined that, in addition to inspections, the computer database sometimes randomly generates a requirement that products be tested in an Agency laboratory and that, even where the computer does not generate such a requirement, the inspector may determine that laboratory testing is warranted. However, the RD found that the inspector cannot override the instructions in the computer database and, thus, must request that his or her supervisor or an ISLI access the computer database to obtain the desired instruction.
Addressing whether the inspectors are engaged in "security work," the RD found that the inspectors are not responsible for the physical security of their work areas, do not determine who has access to secured facilities, do not design or analyze security systems, and do not currently hold a security clearance or have access to classified information. The RD also found, however, that the Agency's re-inspection procedures "ha[ve] the attributes of a `security system'" because they are "designed to guard, shield, and protect the food supply from the importation of unsafe, adulterated, damaged or ineligible food products." Id. at 8. Accordingly, the RD concluded that, as the inspectors are responsible for conducting these procedures, "they may reasonably be found to be involved in `security work,'" and that "national security" under § 7112(b)(6) includes the protection and preservation of the United States' food supply from sabotage and terrorist attack. Id.
The RD also concluded that the record did not establish that the inspectors' security work "has a clear and direct connection to national security." Id. In this regard, the RD determined that the inspectors "are not responsible for the detection and interception of bio-terrorism agents or weapons of mass destruction, nor have they been trained in such duties." Id. at 9. In addition, the RD found that the inspectors are not responsible for the security of, or determining who has access to, any critical system or facility. Further, the RD determined that the inspectors "have no authority to detain a shipment and if they witness anything suspicious they would notify the appropriate authorities." Id. In this regard, the RD found that the inspectors perform routine re-inspections of food shipments from countries that the Agency already has approved for product importation, and only after the shipments have been cleared by CBP and APHIS examination and inspection. The RD also found that the re-inspection process is defined, step-by-step, in the Agency's manual and directives "and was not shown to involve the exercise of independent judgment and discretion." Id. Moreover, according to the RD, the inspectors are not involved in any intelligence or surveillance work similar to the ISLIs, have not been assigned ISLI duties, and have little contact with the ISLIs. The RD concluded that "[w]hile the Agency's reinspection process is an important tool to ensure the safety of imported food products, the record did not show the reinspection process and ... [i]nspector duties to be directly related to the protection of the economic and productive strength of the [n]ation." Id.
In reaching this conclusion, the RD noted three additional points. First, he noted the Agency's assertion that diseases such as foot-and-mouth and "mad cow" disease can have a serious, adverse effect on a country's economy, but he found that the inspectors "do not . . . inspect for such diseases." Id. at 9 n.5. Second, he noted that "[t]here are several intervening layers of personnel and processes involved in the security of imported food products including CBP, APHIS, the ISLIs and the port facility security personnel." Id. at 9 n.6. Third, he noted that, "[o]ther th[a]n being more visually aware of the [import house's] surroundings, there was no indication" that, subsequent to September 11, 2001, the inspectors' duties "changed to include duties that directly affect our national security." Id.
The RD acknowledged that the Agency intends that the inspectors will be "playing an increased role in food security beyond their existing reinspection duties [ v61 p399 ] as reflected by their revised position description[.]" Id. at 9. However, the RD noted that the Authority bases bargaining unit eligibility determinations on evidence of employees' actual duties at the time of the hearing, rather than on written position descriptions or possible future assignments, training or duties. In this regard, the RD found that, at the time of the hearing, inspectors had not been trained in, appraised on, or ordered to assume the duties performed by ISLIs.
For the foregoing reasons, the RD concluded that the inspectors are not engaged in security work that directly affects national security. Accordingly, he determined that § 7112(b)(6) of the Statute does not preclude the inspectors from being included in a bargaining unit.
III. Positions of the Parties
The Agency asserts that the RD's decision raises an issue for which there is an absence of precedent. In this regard, the Agency claims that the standard set forth in United States Department of Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 37 FLRA 239 (1990) (Yuma) -- requiring that, in making unit determinations, the Authority considers only duties currently performed by employees -- "does not adequately address the impact that an application for a security clearance can have on the assignment of and ability to perform duties newly assigned to a position." Application at 10. Specifically, the Agency contends that duties that require a security clearance cannot be assigned until the security clearance is granted, and "[d]emonstrated intent to assign the duties should be considered sufficient to establish that the duties in question should be considered `assigned'" in determining unit eligibility. Id.
The Agency also asserts that there is a genuine issue over whether the RD committed clear and prejudicial errors concerning substantial factual matters. In this connection, the Agency challenges the RD's failure to rely on the duties that the Agency intends to assign inspectors in the future and disputes his finding that the inspectors' current duties do not directly affect national security under § 7112(b)(6).
With regard to the RD's failure to rely on the duties that the Agency intends to assign inspectors in the future, the Agency contends that "consideration" must be given to Yuma, "which established guidelines for determining the bargaining unit status of an employee who has recently encumbered a position." Application at 10. According to the Agency, the RD "disregarded the Agency's intent and steady movement toward assigning the duties" which will require access to classified information and performance of ISLI duties. [n4] Id. at 12. In the latter connection, the Agency asserts that although the inspectors "currently lack the experience and knowledge to properly perform the new duties" in their PDs, "pending" training and assignments to work with ISLIs will provide the inspectors with the necessary experience and knowledge to perform those duties. Id. at 13.
With regard to the actual duties performed by the inspectors at the time of the hearing, the Agency asserts that the RD credited the inspectors with "doing nothing more than what every citizen should be doing, i.e., being vigilant, taking notice of surroundings, and reporting suspicious behavior or activities immediately to local authorities." Id. at 13-14. The Agency also asserts that the decision fails to acknowledge that imported food products may be intentionally infected with bacteria and pathogens, and that the inspectors play a significant role in taking appropriate action to secure the food supply against such threats. With respect to the RD's reliance on the duties performed by CBP, APHIS and ISLIs, the Agency contends that CBP's review of products is "superficial[,]" APHIS's review does not focus on processed food, and there are several areas where ISLIs are not assigned. Id. at 14 (emphasis removed). Additionally, the Agency asserts that "the height of corruption happens at the docks," where the food products await transportation to the import house, and that the immediate area around an import house is not secure. Id. Moreover, the Agency claims that the decision "weighs heavily on a misplaced assumption" that the inspectors' duties are routine, follow a step-by-step procedure, and do not involve the exercise of independent judgment. Id. In this regard, the Agency contends that the inspectors exercise independent judgment in determining when to override the computer database's instructions, and although inspectors require a supervisor or ISLI to override those instructions, the Agency relies on the inspector to identify the need for such an override.
Finally, the Agency requests that the Authority stay the RD's decision and order. In this connection, the Agency contends that the application raises "a unique issue not addressed in precedent." [n5] Id. at 15. [ v61 p400 ]
The Union contends that the Agency's request for a stay should be denied. In this regard, the Union contends that issuance of a security clearance is not equivalent to access to classified information, and the record does not show that inspectors' access to classified information is "impending." Opposition at 6.
The Union asserts that the RD's decision does not raise an issue for which there is an absence of precedent. According to the Union, "clear Authority precedent" applies here and dictates that actual duties, not position descriptions or security clearance levels, govern unit eligibility. Id. at 3 (citing Veterans Admin. Med. Ctr., Prescott, Ariz., 29 FLRA 1313 (1987) (VAMC Prescott)). In addition, the Union argues that the Agency's reliance on Yuma, 37 FLRA 239, is misplaced because that decision addresses employees who are not assigned duties solely because of lack of experience on the job, while the inspectors at issue here have been on the job for many years and have not been assigned any new duties. With regard to the Agency's claim that the RD failed to acknowledge the inspectors' role in identifying instances of potential terrorist activity and taking appropriate action to safeguard the food supply, the Union contends that the RD "clearly addresses this role throughout the decision," and cites as an example the RD's determination that inspectors have no authority to detain a shipment and would notify appropriate authorities if they witness something suspicious. Opp'n at 5. Further, with regard to the Agency's discussion of foot-and-mouth disease and "mad cow" disease, the Union notes the RD's finding that the inspectors do not inspect for such diseases.
IV. Analysis and Conclusions
A. The Agency has not demonstrated that the decision raises an
issue for which there is an absence of
The Authority repeatedly has held that it bases unit determinations on duties actually assigned to employees at the time of a representation hearing, rather than on plans to assign the duties in the future. See United States Dep't of the Air Force, 82nd Training Wing, 361st Training Squadron, Aberdeen Proving Ground, Md., 57 FLRA 154, 157 (2001) (Aberdeen Proving Ground); United States Army Plant Representative Office, Mesa, Ariz., 35 FLRA 181, 186 (1990); VAMC Prescott, 29 FLRA at 1315; United States Army Eng'r Topographic Labs., Fort Belvoir, Va., 10 FLRA 125, 127 n.3 (1982). Nevertheless, in Yuma, the Authority also held that, for an employee newly assigned to a position, duties that have not yet actually been assigned to the employee will be considered assigned duties where: (1) it has been demonstrated that, apart from a position description, the employee has been informed that he or she will be performing the duties; (2) the nature of the job clearly requires the duties; and (3) the employee is not performing the duties at the time of the hearing solely because of lack of experience on the job. See Yuma, 37 FLRA at 245. By contrast, the Authority will not consider the duties to have been actually assigned to a new incumbent where: (1) the assignment of duties is speculative because the nature of the job may change or the nature of the job does not require such duties; or (2) although the duties may be included in a written position description, it is not clear that the duties will actually be assigned to the employee or that the employee has been informed that he or she will perform the duties. See id.
Subsequent to Yuma, the Authority stated that unit determinations must reflect the conditions of employment at the time of the hearing, "unless there are definite and imminent changes planned by the agency." Def. Logistics Agency, Def. Contract Mgmt. Command, Def. Contract Mgmt. Dist., N. Cent. Def. Plant Representative Office-Thiokol, Brigham City, Utah, 41 FLRA 316, 327 (1991) (DLA). In DLA, the Authority declined to consider future changes because it was not clear "whether or when those changes would take place." Id. at 328. Accord United States Dep't of the Navy, Fleet & Indus. Supply Ctr., Norfolk, Va., 52 FLRA 950, 968 (1997) (citing DLA and "noting particularly that there is no evidence to establish that any other reorganizations are imminent").
The Agency asserts that there is an absence of precedent regarding the impact that a security clearance can have on the ability to perform newly-assigned duties, and that the Authority should establish a standard where demonstrated intent to assign duties requiring a security clearance is sufficient for satisfying the requirements of Yuma. We note, however, that Yuma applies by its terms only to employees newly assigned to a position, which these employees were not. Further, the Agency provides no explanation why the Authority's existing standard, set out in DLA, which permits the RD to consider future duties in certain circumstances, cannot be [ v61 p401 ] applied appropriately to resolve the issues in this case. Accordingly, we find that the Agency has not demonstrated that review is warranted on the ground that the RD's decision raises an issue for which there is an absence of precedent.
B. The Agency has not demonstrated that the RD committed a clear
and prejudicial error concerning a substantial factual matter.
1. The RD did not commit a clear and prejudicial error in connection with duties
alleged to be performed by the inspectors in the future.
The Agency asserts that, in assessing the inspectors' unit eligibility, the Authority should consider the duties that the inspectors will be assigned in the future, specifically, the duties that will require access to classified information and duties currently performed by ISLIs. As discussed previously, the Authority has acknowledged that duties to be assigned in the future may be considered in assessing unit eligibility under certain circumstances. See, e.g., DLA, 41 FLRA at 327 (may consider "definite and imminent changes planned by the agency"); Yuma, 37 FLRA at 245 (may consider future duties when, among other things, the nature of the job clearly requires the duties and employees are not performing the duties at the time of the hearing solely because of lack of experience).
In assessing the unit eligibility of the inspectors, the RD did not take into account the duties that the Agency alleges will be assigned in the future. However, there is no record evidence indicating that, before the RD, the Agency argued that the assignment of these duties is definite and imminent. In this regard, the parties did not make opening or closing statements before the RD, and the Agency's post-hearing brief to the RD focused primarily on the duties that are specified in the inspectors' new PD, without addressing when those duties would be assigned. See generally Agency Post-Hearing Brief.
Further, under Authority precedent, there was no basis for the RD to consider these future duties because there is no evidence that the assignment of duties requiring access to classified information, and the performance of the ISLIs' duties, is definite and imminent, under DLA, or that the employees are not performing these duties solely because of lack of experience, under Yuma. In this regard, undisputed record evidence indicates that it may be an extended period of time before the inspectors receive the security clearances necessary for them to access classified information. See, e.g., Tr. at 218-19 (testimony by Director of Import Inspection Division that it could take an indeterminate number of months to receive security clearances, that it is a product of the backlog of necessary background investigations, and that there has been a "tremendous surge" of security clearance applications throughout the Federal government). Moreover, the Agency acknowledges that the inspectors "currently lack the experience and knowledge to properly perform" those duties. Application at 13. Although the Agency argues that "pending" training and assignments to work with ISLIs will provide the inspectors with the necessary experience and knowledge, there is no record evidence as to when the inspectors will receive this "pending" training or will work with the ISLIs to develop the necessary experience. Id. In fact, undisputed testimony indicates that, at the time of the hearing, some aspects of the training were still in development, and it was unclear when the training would occur. See, e.g., Tr. at 223-24 (some aspects of training were still being developed); id. at 420-21 (testimony by supervisor that he did not know when training would occur). Thus, the record evidence supports the conclusion that the timing of the assignment of these duties is not imminent, and the reasons the duties have not been assigned involve delays of indeterminate length caused by a variety of administrative factors, not the lack of job experience of the employees at issue.
In these circumstances, we find that the RD did not commit a clear and prejudicial error in declining to assess the duties that allegedly will be assigned to the inspectors in the future. However, we emphasize that, if and when the assignment of the future duties cited by the Agency becomes definite and imminent, the Agency may file a petition to exclude the inspectors from the bargaining unit on the ground that they are engaged in security work that directly affects national security. [n6] In that event, the RD would be required to apply the applicable legal standards to determine whether the changed duties warrant the inspectors' exclusion from the unit.
2. The RD did not commit a clear and prejudicial error in connection with duties
currently performed by the inspectors.
The Agency asserts that the inspectors' current duties warrant exclusion from a bargaining unit under § 7112(b)(6) of the Statute. As noted previously, under § 7112(b)(6) of the Statute, a bargaining unit is not appropriate if it includes any employee engaged in "security work which directly affects national security." 5 U.S.C. § 7112(b)(6). The Authority has determined [ v61 p402 ] that an employee is engaged in "security work" if the task and duties of the employee's position include: (1) the designing, analyzing, or monitoring of security systems or procedures; or (2) the regular use of, or access to, classified information. United States DOJ, 52 FLRA 1093, 1103 (1997). The Authority has determined that "national security" includes "sensitive activities of the government that are directly related to the protection and preservation of the . . . economic . . . strength of the United States[.]" Dep't of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644, 655-56 (1980).
The RD found that the inspectors "may reasonably be found to be involved in `security work'" because the re-inspection procedures that they follow are "designed to guard, shield, and protect the food supply from the importation of unsafe, adulterated, damaged or ineligible food products." RD Decision at 8. The RD also found that "national security" includes the protection and preservation of the United States' food supply from sabotage and terrorist attack. Id. Neither party excepts to these findings.
The Agency disputes the RD's finding that the work performed by the inspectors does not directly affect national security. In this regard, the Authority defines "direct effect" as "a straight bearing or unbroken connection that produces a material influence or [alteration]." SSA, Balt., Md., 59 FLRA 137, 143 (2003) (SSA) (Chairman Cabaniss concurring and Member Pope concurring in part and dissenting in part on other grounds).
In determining whether the inspectors' work has a straight bearing or unbroken connection that produces a material influence on, or alteration to, national security, we reject the Agency's claim that the RD found that inspectors' security responsibilities are the same as those of the general public. Contrary to the Agency's claim, the RD thoroughly assessed the duties performed by the inspectors and assessed whether those duties directly affect national security. Further, we note that the record supports the RD's finding that, after September 11, the inspectors' duties changed only insofar as they are required to be more vigilant. RD Decision at 9 n.6; see, e.g., Tr. at 226-27 (most significant post-September 11 change has been heightened awareness, enhanced observation skills); id. at 565-67 (bioterrorism training received post-September 11 trained inspectors to be more aware and more suspicious, but didn't train them how "to identify abnormalities in shipments coming in").
As for the RD's assessment of the inspectors' duties, the record supports the RD's findings that the inspectors' role in protecting the United States' food supply from sabotage or terrorist attack is limited. In this regard, the RD found, and it is undisputed, that the inspectors are not responsible for the detection and interception of bioterrorism agents or weapons of mass destruction, have not been trained in those duties, and do not inspect for diseases such as foot-and-mouth disease and "mad cow" disease. The RD also found, and it is also undisputed, that by the time products arrive at the import houses they already have been inspected by CBP and APHIS for, respectively, weapons of mass destruction and potential carriers of animal and plant pests and diseases. As for the Agency's assertions that inspectors play a significant role in securing the food supply against intentional infection with bacteria and pathogens, record evidence supports the RD's findings that inspectors do not inspect for diseases such as foot-and-mouth disease and "mad cow" disease. See Tr. at 141-42 (Assistant Administrator of the Agency's Office of Food Security and Emergency Preparedness responding "[n]o" when asked if inspectors inspect for those diseases).
In addition, the RD found that inspectors generally inspect products that have passed inspection in its country of origin, and that countries that are allowed to export such products to the United States must have passed a three- to five-year extensive review process, including one or more on-site audits, to determine that their food inspection systems are "equivalent" to the United States' food inspection system. RD Decision at 3. That is, generally, inspectors deal with products that have been approved by facilities that meet the Agency's requirements for inspection. Although products may arrive at the import house from a non-approved country or establishment, record evidence indicates that the Agency's computer database does not permit the inspector to enter that information into the computer, thereby alerting inspectors to the fact that such product is not permitted in circumstances where inspectors otherwise may not be aware of that fact. See Tr. at 550. As discussed previously, inspectors do not have the authority to override instructions from the computer database without the assistance of an ISLI or a supervisor. Thus, the inspector's ability to influence whether food from an uncertified country is permitted into domestic commerce is limited in this respect.
The inspectors' discretion is limited in other respects as well. In this regard, the RD found that the computer database generates the inspectors' daily assignments, specifying what type of inspection to conduct [ v61 p403 ] and which samples require laboratory analysis. Additionally, the RD found that the inspection process is defined, step-by-step, in the Agency's manual and directives. Further, in the instances where the inspectors exercise discretion, their impact on the process is indirect. In this regard, when the inspectors determine that circumstances warrant a heightened inspection or laboratory analysis, the inspector must request that his or her supervisor or an ISLI override the computer database's instruction to the contrary. Thus, although the inspectors may determine that a more detailed inspection and/or a laboratory analysis is warranted, they must go through another individual -- the ISLI or the supervisor -- before they can actually conduct a more extensive review. This indicates that, although their ability to exercise discretion may have some impact on what product gets refused, this ability is less than direct.
Further, the RD found that the import houses are owned and operated by private industry. Although the Agency asserts that the immediate area around an import house is not secure, the RD found, and it is undisputed, that the inspectors are not responsible for the physical security of their work areas, do not determine who has access to the facilities, and do not design or analyze security systems for the facilities. These factors indicate that the inspectors' ability to "influence or alter" what food leaves the premises and enters commerce is not "material[.]" SSA, 59 FLRA at 143. They also support a conclusion that the inspectors do not perform work that has been held to directly affect national security because it involved, for example: writing and implementing security action plans, emergency plans, and agency administrative manuals relating to security matters; participating in the design, installation and implementation of comprehensive security measures at an agency's most sensitive facilities; having access to and ability to adjust the security systems; and/or providing guidance regarding technical security requirements. See id. at 146. In this connection, the inspectors do not write and implement security action plans or participate in the design or installation of comprehensive security measures at the Agency's facilities, do not have access to and ability to adjust security systems, and do not provide guidance on security requirements.
For the foregoing reasons, we conclude that the RD did not err in his factual findings.
The application for review is denied.
Footnote # 1 for 61 FLRA No. 73 - 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
(iii) Committed a clear and prejudicial
error concerning a substantial
Footnote # 2 for 61 FLRA No. 73 - Authority's Decision
Section 7112(b)(6) of the Statute provides, in pertinent part, that a bargaining unit is not appropriate if it includes "any employee engaged in . . . security work which directly affects national security[.]"
Footnote # 3 for 61 FLRA No. 73 - Authority's Decision
Footnote # 4 for 61 FLRA No. 73 - Authority's Decision
The Agency states that the ISLI positions were reclassified and retitled as "Import Surveillance-Liaison Officers," or "ISLO[s]," in 2004. Application at 5 n.2. For purposes of consistency with the RD's decision, we refer to these positions as ISLI positions throughout this memorandum.
Footnote # 5 for 61 FLRA No. 73 - Authority's Decision
In light of our denial of the application (discussed further below), there is no basis on which to grant the Agency's request for a stay, and we deny that request. See United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602, 612 n.5 (1993).
Footnote # 6 for 61 FLRA No. 73 - Authority's Decision