American Federation of Government Employees, AFL-CIO, Local 2118 (Union) and Department of Energy, Albuquerque Operations, Los Alamos Area Office (Activity)  

 2 FLRA No. 116
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 LOCAL 2118
 Union
 
 and
 
 DEPARTMENT OF ENERGY, ALBUQUERQUE
 OPERATIONS, LOS ALAMOS AREA OFFICE
 Activity
 
                                            Case No. 0-NG-153
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    THIS MATTER IS BEFORE THE AUTHORITY AS THE RESULT OF A PETITION FOR
 REVIEW OF A NEGOTIABILITY ISSUE FILED BY THE UNION UNDER SECTION 7117(C)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC.
 7117(C)).  BY LETTER DATED JANUARY 17, 1980, THE DEPARTMENT OF ENERGY IN
 EFFECT MOVED TO DISMISS THE UNION'S PETITION, ASSERTING, AMONG OTHER
 GROUNDS, THAT THE AGENCY SUBDIVISION HERE INVOLVED WAS EXCLUDED FROM
 COVERAGE OF THE STATUTE UNDER SECTION 1-210 OF EXECUTIVE ORDER NO.
 12171, NOVEMBER 19, 1979 (44 FED.REG. 66565), /1/ AND THAT THE AUTHORITY
 IS THEREFORE WITHOUT JURISDICTION IN THIS MATTER.  /2/
 
    AS APPEARS FROM THE UNION'S PETITION, THE ACTIVITY INVOLVED IN THE
 PRESENT PROCEEDING IS THE SAME AS THAT WHICH WAS BEFORE THE FEDERAL
 SERVICE IMPASSES PANEL IN DEPARTMENT OF ENERGY, LOS ALAMOS AREA OFFICE,
 LOS ALAMOS, NEW MEXICO AND LOCAL 2118, SECURITY INSPECTORS' UNIT, AFGE,
 79 FSIP 45.  THE RECORD IN THE PANEL CASE, OF WHICH THE AUTHORITY TAKES
 OFFICIAL NOTICE, INDICATES THAT THE ACTIVITY IS PART OF THE ALBUQUERQUE
 OPERATIONS OFFICE WHICH REPORTS DIRECTLY TO THE ASSISTANT SECRETARY FOR
 DEFENSE PROGRAMS.  THE PRESIDENT, AS ALREADY MENTIONED (NOTE 1, SUPRA),
 SPECIFICALLY EXCLUDED THE OFFICES OF THE ASSISTANT SECRETARY FOR DEFENSE
 PROGRAMS FROM COVERAGE OF THE STATUTE UNDER EXECUTIVE ORDER NO. 12171.
 
    IN VIEW OF THE EXCLUSION OF THE ACTIVITY FROM COVERAGE OF THE
 STATUTE, THE AUTHORITY FINDS THAT IT IS WITHOUT JURISDICTION IN THE
 PRESENT CASE, AND THAT THE UNION'S PETITION MUST THEREFORE BE DISMISSED.
  /3/ ACCORDINGLY, THE AGENCY'S MOTION TO DISMISS IS GRANTED.
 
    ISSUED, WASHINGTON, D.C., MARCH 21, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ EXECUTIVE ORDER NO. 12171, ISSUED BY THE PRESIDENT PURSUANT TO
 THE AUTHORITY CONTAINED IN 5 U.S.C. 7103(B), EXCLUDES CERTAIN AGENCIES
 AND AGENCY SUBDIVISIONS FROM COVERAGE UNDER THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE ON THE BASIS THAT THEY HAVE BEEN
 DETERMINED TO HAVE AS A PRIMARY FUNCTION INTELLIGENCE,
 COUNTERINTELLIGENCE, INVESTIGATIVE, OR NATIONAL SECURITY WORK AND THAT
 THE STATUTE CANNOT BE APPLIED TO THEM CONSISTENT WITH NATIONAL SECURITY
 REQUIREMENTS.  SECTION 1-210 OF THIS EXECUTIVE ORDER EXCLUDES THE
 OFFICES OF THE ASSISTANT SECRETARY FOR DEFENSE PROGRAMS, DEPARTMENT OF
 ENERGY.
 
    /2/ INSOFAR AS THE AGENCY'S LETTER RAISES ADDITIONAL ISSUES, THOSE
 ISSUES HAVE NOT BEEN CONSIDERED AND THEY WILL NOT BE ADDRESSED IN THIS
 DECISION.
 
    /3/ THE PANEL, IN CASE NO. 79 FSIP 45, LIKEWISE DECLINED TO ASSERT
 JURISDICTION IN THE MATTER THERE INVOLVED BECAUSE EXECUTIVE ORDER NO.
 12171 HAD EXCLUDED THE ACTIVITY FROM COVERAGE OF THE STATUTE.