Is It Time for FLRA to Rethink Its “National Security” Bargaining Unit Policy?

View this article online at https://www.fedsmith.com/2019/02/19/time-flra-rethink-national-security-bargaining-unit-policy/ and visit FedSmith.com to sign up for free news updates
By on February 19, 2019 in Human Resources with 0 Comments

Wooden judge's gavel sitting on top of an open law book on a bookshelf with two stacks of books on either side pictured with a library of bookshelves in the background

The Federal Labor Relations Authority (FLRA) has recently opened a door that every Agency should consider stepping through. Before we get there though, it’s important to keep a few thoughts in mind:

  • There is no appeal permitted to a U.S. Circuit Court of Appeals from an FLRA decision on matters related to bargaining unit inclusions or exclusions or, for that matter on virtually any bargaining unit determination made.
  • The mandate of the FLRA under the law (5 US Code §7105) limits its scope of decision-making to a single chapter of Title 5, specifically, labor-management relations found at Subpart F Subchapter 71 of that code.
  • The Supreme Court has definitively addressed the issue this article covers and in such a way as should guide FLRA decisions if not mandate their specific terms.
  • FLRA has not, until recently, responsibly addressed the issues inherent in national security determinations. As a matter of fact, prior decisions were dismissive of many critical issues and, frankly, appeared to ridicule such concerns. The case decided did not involve a unit determination, but its principal finding set the stage for a thorough review of prior, poorly considered holdings.

The case mentioned above, 70 FLRA 586 (2018), involved Department of Veterans Affairs, St. Petersburg Regional Benefit Office and American Federation of Government Employees, Local 1594. In the case, DVA refused to permit a union official to undergo an access card credentialing process. There was a lot of back and forth, but eventually the union asked FLRA to reconsider its support of the Agency’s denial. It said:

On remand, the Arbitrator issued a second award (remand award) and ordered the Agency to allow the Union vice president to undergo the PIV-credentialing process as outlined in VA Handbook 0735 and, upon the successful completion of the credentialing process, to grant him either a PIV card or a nonPIV card.

The Agency filed exceptions to the Arbitrator’s remand award.  Those exceptions present us with one primary issue.

The Agency alleges that the award is contrary to Homeland Security Presidential Directive 12 (HSPD12) and an Office of Personnel Management (OPM) memo dated July 31, 2008 (OPM Memo) because the decision “to sponsor and authorize an individual to undergo” the PIVcredentialing process “is solely within the [a]uthority of the Agency.” We find that the OPM Memo grants the Agency the discretion and the authority alone to determine what is a security risk that warrants not submitting an individual to the PIV-credentialing process.  Because the remand award usurped that discretion, we agree with the Agency and vacate that award.”(my emphasis)

So What?

I think this case is significant, not because the FLRA deferred to a Presidential Directive or OPM policy but because it flies in the face of the previously articulated underlying principles of FLRA’s case law on the issue of eligibility to be represented by a union if the job involves national security. 

5 USC §7106 states: 

(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— (6) any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; (my emphasis)

To understand FLRA’s policies on this issue, it’s well worth your time to take a look at the Federal Labor Relations Authority Office of The General Counsel Representation Case Law Outline, pages 55 to 61, but I’ll try to summarize.

In the past, FLRAs have taken broad latitude in determining which positions are excluded from a bargaining unit based on the performance of and the amount of time spent related to national security. FLRA has authorized its regional directors to make a determination as to whether a position is so engaged under criteria solely developed by FLRA. I can’t help but call attention to their definitions of intelligence, counterintelligence, investigative and security work. The Handbook and the case law (NRC and NTEU 66 FLRA No.56 (2011) and others) say that the definitions are those of Mirriam Webster’s dictionary. 

In the case, FLRA said:

In context, “intelligence” means “evaluated information concerning an enemy or possible enemy or a possible theater of operations and the conclusions drawn therefrom.”  Webster’s 3d New Int’l Dictionary 1174 (2002) (Webster’s).  “[C]ounterintelligence” means “organized activity of an intelligence service designed to block an enemy’s sources of information by concealment, camouflage, censorship, and other measures, to deceive the enemy by ruses and misinformation, to prevent sabotage, and to gather political and military information.” (my emphasis)

That was 2011. Webster’s has since changed both definitions.

Does anyone else out there think that using a dictionary definition that does not consider the complexity of those terms when applied in the context of the United States Government which has threats that may be internal or external; military or non-military; data-based or human is other than frivolous? Please remember its decisions cannot be appealed.

In the Handbook regarding Investigative work, FLRA says, “Neither the Statute nor Authority case law defines “investigative” work, but parties have agreed that employees performed investigative work in at least two cases. (my emphasis) Really, the case law definition of investigative work” is what a single small Agency and its unions agree it is. Amazing!

The definition of security work is even more interesting. This is a direct cut and paste from the FLRA’s cited case (Dep’t of Energy, Oak Ridge Operations, Oak Ridge, Tenn., 4 FLRA 644, 655 (1980)):

Neither “security work,” “directly affects,” nor “national security” Is defined in the statute. One 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. An ordinary meaning of “directly affects” would be a straight bearing or unbroken connection that produces a material influence or alternation. See Webster’s seventh new collegiate dictionary. (my emphasis)

The above goes to prove they might have been arrogant but at least they were consistent. I wonder if anyone at the august body ever considered asking the Defense Department or other Agencies involved in security work for their ideas.

It gets even flakier. To wit, the Handbook addresses how the Authority determine whether the employee’s work directly affects national security. It says:

“Directly affects” means that there is “a straight bearing or unbroken connection that produces a material influence or alter[]ation.” Oak Ridge, 4 FLRA at 655. This definition means that § 7112(b)(6) doesn’t permit the exclusion of positions merely because they have some relationship to national security – even “important national [security] interests.” U.S. Dep’t of the Treasury, IRS, 65 FLRA 687, 690 (2011) (Treasury) (Member Beck dissenting in part). This requirement is applied narrowly to implement Congress’s determination in § 7101(a) to “safeguard[] the public interest” through the institution of collective bargaining for federal employees. Id. at 691. So this requirement is met only in limited circumstances.” Id. at 690.”(my emphasis)

The Point

So, let’s see if I’ve got this right so far: 

  • Getting into a bargaining unit justifies a narrow application of the idea that an employee’s work directly affects national security? 
  • The definitions used by FLRA on critical matters of national security are those of a general nature published by a private company for a broad popular audience?
  • FLRA relies on a Regional Director’s application of dictionary definitions of critical issues without consultation with anyone in government on the government’s definitions and an Agency Head’s authority to determine what constitutes the performance of national security work?
  • An FLRA RD has no specific training in security matters and may act on a union’s arguments in a case tipped in its favor by the FLRA’;s own admission?

FLRA, Please Read Egan V. Navy

In 1988, the Supreme Court decided a case that is directly applicable to the determination of what constitutes national security and who gets to decide what it is. See Department of Navy v. Egan, 484 US 518 (1988).

Here’s the critical language of the Court:

It should be obvious that no one has a “right” to a security clearance. The grant of a clearance requires an affirmative act of discretion on the part of the granting official. The general standard is that a clearance may be granted only when “clearly consistent with the interests of the national security.” See, e. g., Exec. Order No. 10450, §§ 2 and 7, 3 CFR 936, 938 (1949-1953 Comp.); 10 CFR § 710.10(a) (1987) (Department of Energy); 32 CFR § 156.3(a) (1987) (Department of Defense). A clearance does not equate with passing judgment upon an individual’s character. Instead, it is only an attempt to predict his possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information. It may be based, to be sure, upon past or present conduct, but it also may be based upon concerns completely unrelated to conduct, 529*529 such as having close relatives residing in a country hostile to the United States. “[T]o be denied [clearance] on unspecified grounds in no way implies disloyalty or any other repugnant characteristic.” Molerio v. FBI, 242 U. S. App. D. C. 137, 146, 749 F. 2d 815, 824 (1984). The attempt to define not only the individual’s future actions, but those of outside and unknown influences renders the “grant or denial of security clearances . . . an inexact science at best.” Adams v. Laird, 136 U. S. App. D. C. 388, 397, 420 F. 2d 230, 239 (1969), cert. denied, 397 U. S. 1039 (1970).

Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For “reasons . . . too obvious to call for enlarged discussion,” CIA v. Sims, 471 U. S. 159, 170 (1985), the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk. The Court accordingly has acknowledged that with respect to employees in sensitive positions “there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information.” Cole v. Young, 351 U. S. 536, 546 (1956).

What May Agencies Do?

This issue has no chance to be resolved, as the Supreme Court has ruled, unless cases come forward to FLRA raising questions about the appropriate unit status of employees engaged in national security work.

There is no bar to an Agency filing of a clarification of unit petition on one or more positions. Petitions such as this may be filed at any time. The only bar is the intestinal fortitude of the filing Agency.

By the way, expect the FLRA Regional Office to try to talk you out of filing. The petition information can be found online.

As always, the above represents my views and does not purport to represent anyone else. BTW, I have no idea how FLRA will rule on such a petition but read in its cases a need for change. Change is begging to be made in this matter.

© 2019 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

Tags:

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

Top