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52 FLRA No. 111

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

(Agency)

and

AMERICAN FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES

LOCAL 3719, AFL-CIO

(Union)

WA-CU-20211

WA-CU-20401

_____

DECISION AND ORDER ON REVIEW

March 14, 1997

_____

Before the Authority: Phyllis N. Segal, Chair and Tony Armendariz, Member.⁽¹⁾

I. Statement of the Case

The Authority granted, in part, the Union's application for review of the Regional Director's (RD's) decision and order on petition for clarification of the bargaining unit represented by the Union. As relevant here, the RD's decision and order excluded from the unit certain employees of the Agency's Criminal Division on the ground that they are engaged in "security work which directly affects national security" within the meaning of section 7112(b)(6) of the Federal Service Labor-Management Relations Statute (the Statute). We granted the parties the opportunity to file briefs addressing the following issues:

(1) Whether the work performed in the Agency's Criminal Division--specifically in the Office of Information/Management Information Staff, the Narcotics and Dangerous Drugs Section, the Office of Enforcement Operations, the Terrorism and Violent Crimes Section, and the Office of International Affairs--involves "national security," as that phrase is defined in [Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644, 655-56 (1980) (Oak Ridge)]; and

(2) Whether, based on evidence in the record, each of the disputed employees is involved in "security work," as defined in Oak Ridge, 4 FLRA at 655, and how this work directly affects the activities described above in (1).

U.S. Department of Justice, 50 FLRA at 444. In granting review, the Authority noted the six cases ⁽²⁾ in which it previously had dealt with the issue of employees engaged in security work, and stated:

With the exception of [United States Attorneys Office for the District of Columbia, 37 FLRA 1077 (1990) (U.S. Attorneys)], in which there was no dispute as to the issue of national security, each of these cases involved agencies whose security work affected the military strength of the United States. In contrast, the case now before the Authority presents as an issue of first impression the question whether the work engaged in by the employees in this civilian Agency constitutes security work which directly affects national security within the meaning of section 7112(b)(6) of the Statute.

U.S. Department of Justice, 50 FLRA at 441-42.

After the Authority granted the application for review, Authority staff representatives met with the parties' representatives at their request to discuss the issues on which the Authority granted review. Thereafter, the Agency and the Union submitted supplemental briefs on the issues. After consideration of the application for review, the opposition to the application, the parties' supplemental briefs, and the entire record, we find, for the reasons set forth below, that the employees in dispute are excluded from the bargaining unit.

II. Background and Regional Director's Decision

The Union represents a bargaining unit of approximately 1200 nonprofessional employees of the Agency. The Agency claimed that over 200 employees in the Agency's Criminal Division should be excluded from the unit because they are engaged in security work within the meaning of section 7112(b)(6) of the Statute.⁽³⁾ The application for review challenges the RD's findings that 84 of these employees should be excluded from the unit.⁽⁴⁾

Pursuant to the parties' stipulation, the RD considered the duties of employees who were representative of all the employees in dispute. Applying the definitions of the terms in section 7112(b)(6) that were set forth in Oak Ridge, 4 FLRA at 655-56, and the examples in U.S. Attorneys, 37 FLRA at 1084, of employees who had been excluded from units by the Authority under section 7112(b)(6), the RD determined that the employees in dispute should be excluded from the bargaining unit because they are engaged in security work which directly affects national security within the meaning of section 7112(b)(6).

III. Positions of the Parties

A. Agency

As an initial matter, the Agency maintains that it is not necessary to determine whether the security work performed by employees in a civilian agency affects the military strength of the United States. According to the Agency, the Union appealed only the RD's exclusion of specific employees and, in effect, acknowledged that the Agency's Criminal Division is engaged in national security work.

The Agency argues that if the Authority does consider this issue, it should construe the phrase "security work which directly affects national security" in section 7112(b)(6) as not being limited only to security work that affects the military strength of the United States. According to the Agency, Congress did not intend to limit the scope of section 7112(b)(6) to this extent. The Agency notes that in Oak Ridge, the Authority, referencing Executive Order No. 10450 (E.O. 10450)⁽⁵⁾ and Cole v. Young, 351 U.S. 536 (1956) (Cole v. Young), defined national security as including security work performed by any agency that affects the economic and productive strength of the United States, not just its military strength. Alternatively, the Agency asserts that even if section 7112(b)(6) could be read as not encompassing other civilian agencies, it is clear that employees in the Agency's Criminal Division are engaged in security work which directly affects national security.

The Agency contends that the Authority must apply the term "national security" as it is used in E.O. 10450 and subsequent related executive orders,⁽⁶⁾ as well as in statute, and must exclude from bargaining units under section 7112(b)(6) all employees who occupy positions determined by an agency head to be "sensitive" within the meaning of E.O. 10450. The Agency asserts that "an agency head's determination that the duties performed by an employee are such that his/her position is 'sensitive' so as to require a security clearance is a determination that the incumbent 'engages . . . in security work which directly affects national security.'" Agency's Supplemental Brief at 24 (emphasis in original). Accordingly, the Agency argues, the occupant of such a position performs security work which directly affects national security, and the Authority may not second-guess that determination. Further, the Agency contends that Oak Ridge is in error insofar as it held that even if employees occupy sensitive positions and work in departments whose work includes the protection of classified information that affects national security, they may not be excluded under section 7112(b)(6) if their work involves "'mere access to and use of sensitive information.'" Id. at 18 (quoting Oak Ridge, emphasis added).

Finally, the Agency argues that even if the Agency head's determinations under E.O. 10450 are not controlling with respect to the exclusion of employees under section 7112(b)(6) and the Oak Ridge standard applies, all of the employees in dispute nonetheless must be excluded from the unit because the record shows that the duties of all of these employees "require them to actively protect and preserve classified documentation and information . . . .'" Id. at 51.

B. Union

The Union argues that Oak Ridge sets forth the correct test for determining whether employees should be excluded from a unit under section 7112(b)(6), and that under Oak Ridge, the employees in this case are not properly excluded because "[n]one of these individuals design, analyze, or monitor security systems which have a direct and significant impact on the national security/national defense of the United States." Union's Supplemental Brief at 3. The Union contends that to sustain the Agency's position that the employees should be excluded from the unit under section 7112(b)(6), the Authority "would have to expand the scope of this exclusion beyond current precedent . . . ." Id. According to the Union, such a decision "would put in doubt longstanding and successful collective bargaining relationships throughout the [F]ederal [G]overnment." Id. at 3-4.

The Union asserts that "Authority precedent linking national security to a narrow range of military matters linked to national defense is consistent with other uses of the term 'national security,' and with the Agency's own regulations on the matter." Id. at 7. The Union notes that under Oak Ridge, mere access to and use of sensitive information and material does not constitute "security work." Further, the Union contends that Congress did not intend section 7112(b)(6) to be used to exclude large groups of employees or entire subdivisions of activities, as the Agency is attempting to do here, but rather enacted section 7103(b) of the Statute for that purpose and delegated that power to the President.⁽⁷⁾

IV. Analysis and Conclusions

A. The Work of Employees of Civilian, As Well As Military, Agencies May Constitute Security Work Which Directly Affects National Security Within the Meaning of Section 7112(b)(6) of the Statute

The Authority is responsible for determining the appropriateness of units for labor organization representation under section 7112 of the Statute. In section 7112(b), Congress precluded the Authority from finding appropriate any unit that included certain employees. Specifically, as relevant here, Congress determined in section 7112(b)(6) that a unit may not include any employee engaged in security work which directly affects national security.

As an initial matter, we reject the Agency's assertion that it is not necessary in this case to determine whether the work performed by employees in a civilian agency can constitute "security work which directly affects national security" within the meaning of section 7112(b)(6) of the Statute. In granting review in this case, the Authority noted that the cases in which the Authority previously considered whether employees were engaged in security work did not specifically answer this question. An analysis of section 7112(b)(6) requires an examination of the scope of the term "national security." As part of this examination, it is appropriate for us to determine whether work performed by employees in civilian as well as military agencies can constitute "security work which directly affects national security." In this regard, it is well settled that the Authority may raise sua sponte such questions as it finds relevant and necessary in any case before it. See, for example, Naval Air Station Fallon, Fallon, Nevada, 51 FLRA 1254 (1996); and U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 87 (1995). For the following reasons, we conclude that work performed by employees in civilian as well as military agencies can constitute "security work which directly affects national security" within the meaning of section 7112(b)(6) of the Statute.⁽⁸⁾

In enacting section 7112(b)(6), Congress is presumed to have been aware of the meaning given to the term "national security" in existing statutes and executive orders. Cf. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 267-68 (1992) (The Supreme Court held that when Congress enacted a statute that used the same words that were used in previous statutes, "we can only assume it intended them to have the same meaning that courts had already given them."). Congress passed the Act of August 26, 1950 (the Act),⁽⁹⁾ the stated purpose of which was "to protect the national security of the United States by permitting the summary suspension of employment of civilian officers and employees of various departments and agencies of the Government." The Act specifically applied not only to military but also to several civilian agencies, including the Department of Justice. Section 3 of the Act stated that "the provisions of this Act shall apply to such other departments and agencies of the Government as the President may, from time to time, deem necessary in the best interest of national security."

Subsequently, several executive orders dealing with national security were issued. See Department of the Navy v. Egan, 454 U.S. 518, 527-28 (1988); Cole v. Young, 351 U.S. at 545-46. As relevant to this case, E.O. 10450 stated that, "[i]n addition to the departments and agencies specified in [the Act] . . . the provisions of [the Act] shall apply to all other departments and agencies of the Government." E.O. 10450, Section 1. Section 3(b) of the Act delegated to the "head of any department or agency" the authority and obligation to designate as sensitive "any position within his department or agency the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security." More recently, E.O. 12968 established "a uniform Federal personnel security program for employees who will be considered for . . . access to classified information[,]" the disclosure of which "can cause irreparable damage to the national security[.]" E.O. 12968, 60 Fed. Reg. 40245. Section 1.1(a) of E.O. 12968 defines "Agency" as "any 'Executive agency,' . . . and any other entity within the executive branch that comes into the possession of classified information . . . ." Id.

The Act and executive orders demonstrate that matters relating to national security can arise in any agency, civilian or military. Accordingly, we conclude that the work of employees of civilian, as well as military, agencies can constitute security work which directly affects national security within the meaning of section 7112(b)(6) of the Statute.

B. The Work Performed in the Agency's Criminal Division Involves "National Security" As That Phrase Is Defined in Oak Ridge

The first issue on which the Authority granted the application for review was whether the work performed in the Agency's Criminal Division involves "national security," as that phrase is defined in Oak Ridge. For the reasons set forth below, and consistent with the discussion in Section IV.A., above, we find that it does.

In Oak Ridge, the Authority defined "national security" as

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.

Oak Ridge, 4 FLRA at 655-56. This definition was derived from, and is consistent with, the use of the same term in relevant authorities. See, for example, 5 U.S.C. § 7531; 5 C.F.R. § 732.102(a) ⁽¹⁰⁾; and Cole v. Young, 351 U.S. at 864-67. Accordingly, we will continue to apply this definition in determining whether the work performed in an agency involves "national security."

The functions of the Agency's Criminal Division include the duty to prosecute and assist in the prosecution of criminal investigations specifically designed to protect the national security of the United States. In this regard, the Criminal Division has been delegated responsibility to, among other things,

[e]nforce[] all criminal laws relating to subversive activities and kindred offenses directed against the internal security of the United States, including the laws relating to treason, sabotage, espionage, and sedition; enforcement of . . . the Trading With the Enemy Act . . .; criminal prosecutions under the Atomic Energy Act . . .; and criminal prosecutions . . . arising out of offenses relating to national security.

28 C.F.R. § 0.61. The functions and responsibilities of the Criminal Division make it clear that the work performed in the Criminal Division involves the security of the Government in domestic and foreign affairs, against and from espionage, sabotage, subversion, and foreign aggression. Accordingly, we find that the work performed in the Agency's Criminal Division involves national security.

C. The Employees in this Case Are Involved in Security Work and This Work Directly Affects National Security Within the Meaning of Section 7112(b)(6)

The second issue on which the Authority granted the application for review was whether, based on record evidence, the disputed employees are involved in "security work," as defined in Oak Ridge, 4 FLRA at 655, and how this work directly affects national security. For the reasons set forth below, we find that the disputed employees are involved in "security work" and that this work directly affects national security within the meaning of section 7112(b)(6).

1. The Standard for Determining Whether an Employee Is Involved in Security Work Within the Meaning of Section 7112(b)(6)

At the outset, in determining the standard to decide whether an employee is engaged in security work within the meaning of section 7112(b)(6) of the Statute, we reject the Union's argument that Congress did not intend to exclude large groups or entire subdivisions of employees under section 7112(b)(6), but rather delegated that power only to the President under section 7103(b). We agree with the RD who, in rejecting this argument, found that "[u]pon a review of the legislative history of the Statute . . . there is no prohibition, express or implied, as to the number of employees within a given organization or subdivision of an agency [who] can be excluded under [] section 7112(b)(6)." RD's Decision at 10-11 n.8.

In considering the meaning of the term "security work" in section 7112(b)(6), the Authority stated in Oak Ridge that

[o]ne ordinary definition of 'security work' would be a task, duty, function, or activity related to securing, guarding, shielding, protecting, or preserving something. As used in context, 'security work' would include the design, analysis, or monitoring of security systems and procedures. It would not include work involving mere access to and use of sensitive information and material.

Oak Ridge, 4 FLRA at 655.

We find that Oak Ridge reasonably defined "security work" as a task, duty, function, or activity related to securing, guarding, shielding, protecting, or preserving something. We also affirm the holding in Oak Ridge that "security work" includes the design, analysis, or monitoring of security systems and procedures.

However, for the following reasons, we reject the statement in Oak Ridge that, in the context of section 7112(b)(6), "security work" would not also include work involving mere access to and use of sensitive information and material. With respect to the relationship between access to information and national security, 5 C.F.R. § 732.102(a) defines the term "national security position" as a position "that require[s] regular use of, or access to, classified information." Pursuant to E.O. 10450, Section 3(b), agency heads must designate as sensitive any position within the agency or any department, the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security. See also 5 C.F.R. § 732.201(a). E.O. 12968 establishes security policies to protect classified information, the disclosure of which can cause irreparable damage to the national security. 60 Fed. Reg. 40245. An employee's eligibility for access to classified information is dependent upon the results of a favorable background investigation and the employee is certified or cleared to hold such position. See E.O. 12968, Section 3.1.(a) and (b).

These provisions demonstrate that a position that requires the regular use of, or access to, classified information is one that is necessary to protect the national security. This ensures that an employee occupying a position that requires the regular use of, or access to, classified information is available to the agency when the need for security work arises. Cf. Hartness v. Bush, 919 F.2d 170, 173-74 (D.C. Cir. 1990) (random drug testing was permissible for employees with top security clearances "regardless of the fact that some employees may be rarely, if ever, exposed to" classified information; "'[t]he whole point of granting top secret security clearances in advance is to provide flexibility, to ensure that employees can be given access to top secret materials as soon as the need arises'" (citation omitted)).

Accordingly, we find that an employee is engaged in "security work" within the meaning of section 7112(b)(6) if the required tasks, duties, functions, or activities 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. If an employee is engaged in security work, as so defined, which directly affects ⁽¹¹⁾ national security, as discussed above, the employee may not be included in a bargaining unit.

2. Application of the Standard for Determining Whether the Disputed Employees in this Case Are Involved in Security Work Which Directly Affects National Security Within the Meaning of Section 7112(b)(6)

The disputed employees in this case, all of whom were excluded from the bargaining unit by the RD, work in the Agency's Criminal Division; specifically, in the Office of Information/Management Information Staff, the Narcotics and Dangerous Drugs Section, the Office of Enforcement Operations, the Terrorism and Violent Crimes Section, and the Office of International Affairs.

The Office of Information/Management Information Staff is responsible for the development and maintenance of the Criminal Division's automated information systems, which are designed to assist in the processing, and secure the handling, of classified information. The RD found, and the record shows, that the disputed employees in this office are responsible for designing security systems and/or for assuring that classified information is not disclosed to unauthorized personnel. We find that the work of these employees includes: (1) the designing of the Criminal Division's security system or procedures; and/or (2) the regular use of, or access to, classified information.

The Narcotics and Dangerous Drugs Section is involved in the investigation and prosecution of offenses involving narcotics throughout the United States pursuant to the Comprehensive Drug Control Act of 1988, in cooperation with other agencies of the Government. The RD found, and the record shows, that the disputed employees in this section are responsible for maintaining the security of classified information or documents, acting as courier of classified documents or documents, and/or review requests for classified information. We find that the work of these employees includes the regular use of, or access to, classified information.

The Office of Enforcement Operations includes employees in the Witness Security Branch, the Freedom of Information Act/Privacy Act (FOIA/PA) Unit, and the Electronic Surveillance Unit. The RD found, and the record shows, that the disputed employees in the Witness Security Branch are responsible for maintaining the security of classified information or documents, acting as couriers of the passports of protected witnesses, or compiling information gleaned from classified documents. We find that the work of the employees in the Witness Security Branch includes the regular use of, or access to, classified information.

As to the disputed employees in the FOIA/PA Unit, the RD found, and the record shows, that they are responsible for maintaining the security of classified information or documents, or for controlling access to classified information and making recommendations as to the release of classified information. We find that the work of the employees in the FOIA/PA Unit includes the regular use of, or access to, classified information.

As to the disputed employees in the Electronic Surveillance Unit, the RD found, and the record shows, that they are responsible for reviewing, managing, and making recommendations regarding applications for classified information involving narcotics and terrorism, or for maintaining the security of this classified information. We find that the work of the employees in the Electronic Surveillance Unit includes the regular use of, or access to, classified information.

The Terrorism and Violent Crimes Section investigates international terrorist incidents. The RD found, and the record shows, that the disputed employees are responsible for maintaining the security of classified information or documents, or acting as couriers of the documents, which duties require the highest possible clearance. We find that the work of these employees includes the regular use of, or access to, classified information.

The Office of International Affairs is responsible for the formulation and execution of the Agency's international criminal justice enforcement policies, including procedures for the extradition of fugitives and the acquisition of evidence dealing with treaties with Foreign Governments. The RD found, and the record shows, that the disputed employees are responsible for receiving, reviewing, and logging correspondence dealing with international affairs, or for the analysis, or the access to and control, of classified information. We find that the work of these employees includes: (1) the designing of the Criminal Division's security system or procedures; and/or (2) the regular use of, or access to, classified information.

In sum, the record shows, and we find, that each of the disputed employees performs work that involves: (1) the designing of the Criminal Division's security system or procedures; and/or (2) the regular use of, or access to, classified information. Accordingly, applying the standards set forth above, we find that each of the disputed employees is engaged in security work which directly affects national security within the meaning of section 7112(b)(6) of the Statute. Therefore, we affirm the RD's determination to exclude these employees from the bargaining unit.⁽¹²⁾

V. Order

The Regional Director is directed to take appropriate action consistent with this decision.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Wasserman took no part in this decision.

2. The cases are U.S. Attorneys, 37 FLRA at 1084; U.S. Department of the Army, Army Ordnance Missile and Munitions Center and School, Redstone Arsenal, Alabama, 35 FLRA 987, 988 (1990); Defense Mapping Agency, Hydrographic/Topographic Center, Providence Office, Brookside Avenue, West Warwick, Rhode Island, Department of Defense, 13 FLRA 128, 129 (1983); Defense Mapping Agency, Aerospace Center, Kansas City Office, Kansas City, Missouri, 13 FLRA 52 (1983); United States Department of the Navy, U.S. Naval Station, Panama, 7 FLRA 489, 495 (1981); and Oak Ridge, 4 FLRA at 655-56.

3. Section 7112(b)(6) provides, in relevant part, that "[a] unit shall not be determined to be appropriate . . . if it includes . . . any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security[.]"

4. The RD's findings as to the status of other employees, including those as to whose status the parties stipulated, is not before us and will not be addressed.

5. E.O. 10450, "Security Requirements For Government Employment," 18 Fed. Reg. 2489 (April 29, 1953).

6. The Agency filed a motion requesting the Authority to take official notice, pursuant to section 2429.5 of the Authority's Regulations, of Executive Order No. 12958, "Classified National Security Information," 60 Fed. Reg. 19825 (Apr. 20, 1995) (E.O. 12958), and Executive Order No. 12968, "Access to Classified Information," 60 Fed. Reg. 40245 (Aug. 7, 1995) (E.O. 12968). As these executive orders are relevant to the issues on review before the Authority and the Union did not oppose the motion, we grant the Agency's motion. See Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA 7, 9 n.2 (1995).

7. Section 7103(b) states, in relevant part:

(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.

8. The Agency attached to its supplemental brief two memoranda (Attachments 2 and 3) from the Deputy Attorney General for the Criminal Division to all United States Attorneys, issued after the close of the hearing in this case. The memoranda prescribe procedures to be followed within the Criminal Division regarding confidential matters that must be coordinated with other agencies. The Union moved to strike Attachments 2 and 3 on the grounds that the documents were not admissible under section 2429.5 of the Authority's Regulations because they were not presented as part of the record before the RD, and do not constitute matters as to which the Authority may take official notice under section 201 of the Federal Rules of Evidence. The Agency opposed the Union's motion. In reaching our decision in this case, we have not considered Attachments 2 and 3. Therefore, we find it unnecessary to rule on the Union's motion to strike Attachments 2 and 3.

9. Public Law 733, 5 U.S.C. §§ 22-1 et seq. The Act was amended and codified in 5 U.S.C. §§ 7531 and 7532 (1966).

10. Amendments to 5 C.F.R. § 732.101 et seq., the regulations that implement E.O. 10450, have been proposed, but are not yet final. See 61 Fed. Reg. 394 (Jan. 5, 1996).

11. The Authority stated in Oak Ridge that "an ordinary meaning of 'directly affects' would be a straight bearing or unbroken connection that produces a material influence or alternation." Oak Ridge, 4 FLRA at 655 (citation omitted). No one challenges this definition and we will continue to apply it in determining whether security work directly affects national security.

12. For two reasons, we leave for another day consideration of the Agency's argument that all employees who occupy positions determined by an agency head to be "sensitive" within the meaning of E.O. 10450 must be excluded from bargaining units under section 7112(b)(6). First, in light of our determinations set forth above, consideration of this argument is not necessary to determine the unit status of the employees in dispute in this case. Second, any consideration of this argument, which could have significant implications throughout the Federal sector labor-relations community, would benefit from the views of other agencies, labor organizations, and other interested persons.

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