U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Department of the Army, Corps of Engineers, Army Engineer Research Development Center, Vicksburg, Mississippi and American Federation of Federal Employees, Local 3310, AFL-CIO and National Federation of Federal Employees, Federal District 1, IAMAW, AFL-CIO and International Federation of Professional and Technical Engineers, Local 4, Chapter 1, AFL-CIO, CLC and International Federation of Professional and Technical Engineers, Local 1017, AFL-CIO, CLC, AT-RP-00038, WA-RP-00080, June 6, 2002, 57 FLRA No. 180.

FLRA turned down NFFE's application for review of a Regional Director's determination that 177 employees involved in an agency unit clarification request following a reorganization were engaged in security work because they had access to classified material. It reaffirmed its decision in Department of Justice, 52 FLRA No. 111, where it had revised its definition of "security work" to include access to classified information. The Authority said that "[c]ontrary to NFFE's contention, in DOJ, the Authority did not condition the definition of security work on any minimum amount of time for exposure to or access to classified material."

The agency had sought a unit clarification concerning a new organizational subdivision--the Engineer District Development Center (ERDC) in Vicksburg, Mississippi--to which employees from four sites had been transferred. This mission of one of the components of ERDC is to provide knowledge of the battlefield through research and development, acquisition and operational support, and the application of expertise in the topographic and related sciences. Work in these areas is often classified at the "sensitive compartmented information" (SCI) level. (SCI is defined as "classified information concerning, or derived from intelligence sources methods, or analytical processes, which is required to be handled within formal access control systems established by the Director of Central Intelligence.") This component has a facility, called the Sensitive Compartmented Information Facility (SCIF), for handling the SCI technical data, SCI systems and equipment, hardware and computer software. Access to SCIF is restricted to cardholders with appropriate security clearance. Cardholders with such access have unescorted use at any time of all SCI technical and performance information, hardware and software communications systems and other materials.

The agency wanted to excluded 177 employees occupying positions designated with a special security classification (the highest security classification in the Department of Defense) who have access to the SCIF. The need and frequency to access the SCIF varies and may change as the need for security work arises.

The Regional Director (RD) determined that the work performed by the employees at issue involves national security, given that it involves the "preservation of the military strength of the Government in domestic and foreign affairs, against and from espionage, sabotage, subversion, and foreign aggression." He also found that all of these employees are able to access the SCIF and thus have access to classified information. Although they spend little of their working time in the SCIF, the RD concluded that their work includes the regular use of, or access to, classified information concerning matters of national security. Applying DOJ, 52 FLRA 1093, where FLRA had expanded the definition of security work to include the regular use of, or access to, classified information, the RD found that all 177 employees are engaged in security work that directly affects the national security within the meaning of § 7112(b)(6) and thus should be excluded from the bargaining unit.

NFFE filed an application of review in which it contended that Congress didn't intend to give § 7112(b)(6) the "sweeping coverage the Authority did in DOJ." Even if FLRA decided to uphold the DOJ decision, NFFE contended that the RD improperly applied that decision to the facts of this case because the RD ignored the amount of time certain employees have access to classified information, claiming that fewer than half of the employees have access to classified information on a weekly basis. NFFE claimed that the amount of time spent with classified material is the controlling factor in determining bargaining unit status.

The Authority reaffirmed its decision in DOJ, noting that it had revised its definition of a security position to include access to classified information because 5 CFR 732.102(a) defines a "national security position" as a position "that require[s] regular use of, or access to, classified information." See DOJ, 52 FLRA at 1102-03. Moreover, the legislative history proffered by NFFE involving testimony by an OPM official and a congressman was misplaced: the testimony from the former pertained to the LMR program under EO 11491, not the FSLMRS, and the testimony of the latter concerned exclusion of entire agencies, not that of individual employees.

Finally, "[c]ontrary to NFFE's contention, in DOJ, the Authority did not condition the definition of security work on any minimum amount of time for exposure to or access to classified material."

Finding that NFFE failed to demonstrate that the RD misapplied the Authority's standard for determining whether an employee's position constitutes "security work" within the meaning of § 7112(b)(6), the Authority affirmed the Regional Director's Decision and Order.