Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, AFL-CIO, WA-RP-90035, November 1, 2002, 58 FLRA No. 42

The Authority, noting the absence of precedent, granted in part the agency's application for review of an Acting Regional Director's unit clarification decision in which she rejected the agency's claim that certain SSA employees -- who, among other things, recommend improvements in SSA's main campus security systems, write and implement security action plans, and who participate in the design, installation and implementation of the security measures at SSA's most sensitive facilities -- perform "security work that is directly related to the protection and preservation of the economic and productive strength of the United States."

It accordingly asked the parties to file briefs addressing two questions: (1) "Whether, and how, the security work performed by the incumbents involves 'national security' as that phrase is defined in Oak Ridge, 4 FLRA at 655-56." (2) "If the security work performed by the incumbents involves national security, then does it 'directly affect' national security, as that phrase is defined in Oak Ridge, 4 FLRA at 655-56, and, if so, how?"

The Authority also indicated that it will publish a Federal Register Notice inviting interested persons to address these issues.

The union attempted to clarify a nationwide consolidated unit to include 8 employees occupying Electronics Technician (ET), Physical Security Specialist (PSS), and Employee Services Specialist (ESS) positions. The agency argued that the incumbents of the aforementioned positions should be excluded because they are engaged in security work within the meaning of § 7112(b)(6). It also argued that the incumbents of the ESS position should be excluded from the unit because they are supervisors within the meaning of § 7103(a)(10).

In discussing the role of the SSA in the national economy, the RD said that:

• One in six Americans receives a social security benefit,

• Social security benefits comprise 5 % of the nation's total economic output,

• SSA provides critical income support to 40,000,000 people, and

• Social security numbers are used to establish a person's identity for purposes of retirement benefits; tax reporting; educational, employment, bank and health records; and consumer credit cards--and, if blank SSA cards are stolen, they can be used to create a new identity.

Turning to the positions in question, the RD found that the incumbents of the two PSS positions conduct surveys of SSA offices nationwide and recommend improvements in the design of security systems. They also write and implement security action plans and ensure that security measures are carried out. To some extent they are also involved with granting access to SSA facilities. Although finding that these duties can be construed as security work, the RD concluded that there was no evidence that these duties directly affect national security.

She found that the incumbents of the ET position, which doesn't require a security clearance, participate in the design, installation and implementation of the security measures at SSA's most sensitive facilities. They also occasionally have access to classified documents. The RD concluded that "[w]hile their duties constitute security work, there is no evidence that this work directly affects national security."

In concluding that the incumbents of the PSS and ET positions are included in the unit, the RD said the following:

None of the individuals at issue in this petition are involved in the investigation for or the granting of security clearances. None of the employees at issue maintain classified materials. None of the employees at issue communicate top secret information as a condition of their employment, nor do any of them require security clearances.

Regarding the incumbents of the ESS position, who are senior analysts and project leaders who are called upon to resolve parking problems, the RD concluded that as they weren't supervisors.

In its application for review, the agency noted that there were few cases on national security and none directly relating to the preservation of the nation's economic and productive strength. It also argued that the bombing of the Federal building in Oklahoma City in 1995 and the attacks on the World Trade Center and the Pentagon on September 11, 2001, have altered the concept of security. It went on to challenge the RD's determinations, including her apparent reliance on the existence of a backup recovery system that would allow claims to be paid. The backup system, the agency noted, is untested. Moreover, "[w]hile claims could be paid manually, they could not be paid accurately and efficiently. When 40 million people do not receive their Social Security checks on time or in the right amount, there is a tremendous impact [on] the economy of the United States." It also challenged the RD's determination that the incumbents of the ESS position were not engaged in personnel work.

The Authority denied the agency's application with respect to the incumbents of the ESS position, finding that the agency didn't show that the RD erred in finding that there was no evidence that the incumbents met any of the supervisory indicia.

However, noting that "[n]o case is cited in which there was an assertion, such as here, that the disputed incumbents perform security work that is directly related to the protected and preservation of the economic and productive strength of the United States[,]" it granted the application as it applies to the incumbents of the PSS and ET positions. It accordingly directed the parties to address the following questions:

(1) "Whether, and how, the security work performed by the incumbents involves 'national security' as that phrase is defined in Oak Ridge, 4 FLRA at 655-56."

(2) "If the security work performed by the incumbents involves national security, then does it 'directly affect' national security, as that phrase is defined in Oak Ridge, 4 FLRA at 655-56, and, if so, how?"

The Authority also published a Federal Register Notice --see the November 29,2002, issue of the Federal Register (Volume 67, Number 230, pages 71175-71176)--in which it invited interested parties to file amici curiae briefs on the issue.

Many Federal agencies play an important and critical role in the nation's economy. Presumably all of them have security concerns that have been heightened by the nation's war on terrorism. However, it should be kept in mind that the issues raised by this case apply only to employees who perform security work.

Incidentally, the ALJ in Oak Ridge said the following in offering a definition of national security, which FLRA had adopted without comment.

The term "national security" must be interpreted to include only 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. See Cole v. Young, 76 S. Ct. 861, 351 U.S. 536 (1956); FPM Chapter 732-3, subchapter 1, paragraph 1.1; 32 C.F.R. § 156.5.