In a recent article, we reported that the U.S. Circuit Court of Appeals for the Federal Circuit( the Federal Circuit)had chastised the Merit Systems Protection Board (the Board) for imitating the camel as in “If the camel once gets his nose in the tent, his body will soon follow” regarding position sensitivity. The federal Circuit reiterated the Supreme Court’s 1988 admonition to the Board reminding it that position sensitivity determinations are the sole prerogative of an Agency. All the Board may review is whether due process (notice of the proposed determination and a right to reply) was provided the employee.
How Does the FLRA Figure in This?
First, let’s check out the statute on bargaining unit inclusions and exclusions. It reads:
5 U.S. Code § 7112 “(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes – (1) except as provided under section 7135(a)(2) of this title, any management official or supervisor; (2) a confidential employee; (3) an employee engaged in personnel work in other than a purely clerical capacity; (4) an employee engaged in administering the provisions of this chapter; (5) both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit; (6) any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or (7) any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity. “ (my emphasis)
The crucial question, of course, is who decides whether an employee is “engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security.” Anybody who has read my articles knows that I have repeatedly questioned the FLRA’s self centered arrogance in making determinations about Agency prerogatives and authorities. And I am not alone. The D.C. Circuit, in a case involving Air Force basically told the Authority to Mind Your Own Statute. In a Prisons case, the DC Circuit lambasted the Authority for substituting its judgment defining “mission critical’ for the Agency’s. FLRA got beat up by the Office of Government Ethics for interpreting OGE’s regulations without asking. In what was arguably one of the Authority’s biggest faux pas, other than home addresses before the Supreme Court, it tried to teach the National Labor Relations Board’s General Counsel how to suck eggs . In that case, the DC Circuit was not amused by FLRA’s shenanigans and ruled: “We hold the decision of the Authority conflicts with the Act, and accordingly grant the Board‘s petition for review and deny the Authority‘s cross-petition for enforcement of its order”.
Does an Agency Have an Unfettered Right to Decide?
In Egan v. Navy (U.S. Supreme Court, 1988) and Berry v. Conyers (Federal Circuit, 2012), both courts drew the MSPB up short for trying to second guess Agency position sensitivity and security determinations. The FLRA case that got my attention is NRC and NTEU (66 FLRA No.56 (2011)). The case reports that: “The Agency filed a petition to clarify the bargaining unit status of twenty-four Criminal Investigators (CIs) of the Agency’s Office of Investigation (OI). The Regional Director (RD) determined that twelve of the CIs should be excluded from the bargaining unit (unit) under § 7112(b)(6) of the Federal Service Labor-Management Relations Statute (the Statute) (§ 7112(b)(6)), and that the remaining twelve CIs should be included in the unit.” The Authority decided that all but four of those the Agency claimed were engaged in national security work were and ordered the rest to be included in the unit.
The FLRA’s reasoning in this case, in light of Egan and later Conyers, literally staggers the mind. Some examples:
Example #1: “Where the Statute does not define a pertinent term, the Authority has found it appropriate to consider dictionary definitions of the term. AFGE, Local 1827, 58 FLRA 344, 345-46 (2003) (Chairman Cabaniss concurring in part and Member Armendariz dissenting in part). The Statute does not define the terms “intelligence” and counterintelligence.” Accordingly, like the RD, we consider dictionary definitions of those terms.”
They’re kidding, right? We have the Department of Defense, the National Security Agency, the Central Intelligence Agency, the Department of Homeland Security and others to ask and FLRA goes to a dictionary. Perhaps that’s all you need to know about their decision making but it doesn’t stop there.
Example #2: “The Authority has defined “security work” as “a task, duty, function, or activity related to securing, guarding, shielding, protecting, or preserving something.” U.S. DoD, Pentagon Force Protection Agency, Wash., D.C., 62 FLRA 164, 171 (2007). “ In addition, as stated previously, the Authority has held that an employee will be found to be engaged in “security work” within the meaning of § 7112(b)(6) if the employee’s duties include “the regular use of, or access to, classified information.” U.S. DoJ, 52 FLRA 1093, 1103 (1997) (Justice). In Justice, the Authority rejected its previous holding in Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 644, 655-56 (1980), that security work does “not include work involving mere access to and use of sensitive information and material.” 52 FLRA at 1102. Instead, the Authority considered pertinent regulations and Executive Orders concerning classified material and concluded that the regular use of, or access to, such material is security work. See id. at 1102-03.”
FLRA Makes Same Mistake as MSPB
This is exactly the trap MSPB fell into. In Conyers, the Federal Circuit said; ““The Board and Respondents’ focus on one factor, eligibility of access to classified information, is misplaced. Government positions may require different types and levels of clearance, depending upon the sensitivity of the position sought.”
The FLRA is dead wrong yet again. The problem is that there is no direct appeal of a unit determination into the courts. See below.
So What’s to be Done?
First, an Agency has is to review its bargaining units to determine which employees, in its view, are engaged in “ in intelligence, counterintelligence, investigative, or security work which directly affects national security”. The determination should be backed by sound reasoning and address any statutory delegation made to the Agency regarding these matters. Get your lawyers, labor relations and security people together and turn them loose to make the case.
There are two choices if you decide to go forward. You’ll then tell the union that certain employees are no longer in the bargaining unit or file a Clarification of Unit (CU) petition with the FLRA.
Based on both FLRA’s past decisions and its amazingly self-centered view of the world, you’ll lose the CU. Once the Agency is on board, If it were up to me, I’d just go ahead and change the employee’s bargaining unit status and advise the union. (Of course, I’m just an old retired civil servant living on a fixed income and have no say in any of this.)
The union will likely file an unfair labor practice which you will also lose, again judging from FLRA’s prior rulings. You’ll then refuse to carry out the order in the FLRA’s decision and they will go to court to enjoin you to comply. You will then, for the first time, get a hearing before a real judge where you’ll argue that FLRA’s order violates the law as determined by Egan, Conyers and whatever other cases, statutes, etc. you can put together to show that FLRA has once again overstepped its bounds.
This is exactly what happened in the case discussed above involving the National Labor Relations Board’s General Counsel who was forced to do this to counter FLRA’s unilateral and, as proven by the decision, illegal order.
As the DC Circuit reminded the parties in the NLRB case, “We review the Authority‘s decision holding the Board engaged in an unfair labor practice only ―to determine whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‘ Nat’l Ass’n of Gov’t Employees v. FLRA, 363 F.3d 468, 474–75 (D.C. Cir. 2004) (quoting 5 U.S.C. § 706(2)(a)). The issue in this case is solely one of accord with the law.”
OPM Should Step Up to the Plate on This Issue
The Office of Personnel Management deserves much praise for doing the right thing in Berry v. Conyers. Whether it decides to help Agencies pursuing the kind of option stated above or files for reconsideration of past FLRA national security unit exclusion decisions based on Egan and Conyers, it would be doing the right thing as well as demonstrating a leadership role. Nuclear Regulatory Agency, which had the latest case, may seek reconsideration under these cases. If so, I wish them luck but wouldn’t count on my chances before FLRA but would count on the D.C. Circuit for a fair outcome. Two quotes, Thomas Edison said “Opportunity is missed by most people because it is dressed in overalls and looks like work,” Churchill said: “The pessimist sees difficulty in every opportunity. The optimist sees the opportunity in every difficulty.”
As always, any opinion voiced above is my sole responsibility.