American Federation of Government Employees, AFL-CIO, Local 2118 (Union) and Department of Energy, Albuquerque Operations, Los Alamos Area Office (Activity) (Authority decision, March 21, 1980)

Final FLRA decision. The Authority dismissed the negotiability petition for lack of jurisdiction without ruling on the disputed proposal. Judicial review of final Authority orders is governed by 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 2118 sought review of a negotiability issue involving the Department of Energy's Los Alamos Area Office. The Department argued that the office was excluded from the federal labor relations statute by Executive Order 12171. The Authority found that the office reported to the Assistant Secretary for Defense Programs, whose offices the order expressly excluded. It granted the Department's motion to dismiss for lack of jurisdiction and did not reach the proposal's negotiability.

Decision snapshot

• Authority: 5 U.S.C. § 7103(b); Executive Order 12171.
• Outcome: Petition dismissed for lack of jurisdiction.
• Key point: The office fell within the order's exclusion of Defense Programs offices.

Full text (FLRA public release)

[ v02 p917 ]

02:0917(116)NG

The decision of the Authority follows:

2 FLRA No. 116

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
LOCAL 2118
Union

and

DEPARTMENT OF ENERGY, ALBUQUERQUE
OPERATIONS, LOS ALAMOS AREA OFFICE
Activity

Case No. 0-NG-153

DECISION ON NEGOTIABILITY APPEAL

THIS MATTER IS BEFORE THE AUTHORITY AS THE RESULT OF A PETITION FOR
REVIEW OF A NEGOTIABILITY ISSUE FILED BY THE UNION UNDER SECTION 7117(C)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC.
7117(C)). BY LETTER DATED JANUARY 17, 1980, THE DEPARTMENT OF ENERGY IN
EFFECT MOVED TO DISMISS THE UNION'S PETITION, ASSERTING, AMONG OTHER
GROUNDS, THAT THE AGENCY SUBDIVISION HERE INVOLVED WAS EXCLUDED FROM
COVERAGE OF THE STATUTE UNDER SECTION 1-210 OF EXECUTIVE ORDER NO.
12171, NOVEMBER 19, 1979 (44 FED.REG. 66565), /1/ AND THAT THE AUTHORITY
IS THEREFORE WITHOUT JURISDICTION IN THIS MATTER. /2/

AS APPEARS FROM THE UNION'S PETITION, THE ACTIVITY INVOLVED IN THE
PRESENT PROCEEDING IS THE SAME AS THAT WHICH WAS BEFORE THE FEDERAL
SERVICE IMPASSES PANEL IN DEPARTMENT OF ENERGY, LOS ALAMOS AREA OFFICE,
LOS ALAMOS, NEW MEXICO AND LOCAL 2118, SECURITY INSPECTORS' UNIT, AFGE,
79 FSIP 45. THE RECORD IN THE PANEL CASE, OF WHICH THE AUTHORITY TAKES
OFFICIAL NOTICE, INDICATES THAT THE ACTIVITY IS PART OF THE ALBUQUERQUE
OPERATIONS OFFICE WHICH REPORTS DIRECTLY TO THE ASSISTANT SECRETARY FOR
DEFENSE PROGRAMS. THE PRESIDENT, AS ALREADY MENTIONED (NOTE 1, SUPRA),
SPECIFICALLY EXCLUDED THE OFFICES OF THE ASSISTANT SECRETARY FOR DEFENSE
PROGRAMS FROM COVERAGE OF THE STATUTE UNDER EXECUTIVE ORDER NO. 12171.

IN VIEW OF THE EXCLUSION OF THE ACTIVITY FROM COVERAGE OF THE
STATUTE, THE AUTHORITY FINDS THAT IT IS WITHOUT JURISDICTION IN THE
PRESENT CASE, AND THAT THE UNION'S PETITION MUST THEREFORE BE DISMISSED.
/3/ ACCORDINGLY, THE AGENCY'S MOTION TO DISMISS IS GRANTED.

ISSUED, WASHINGTON, D.C., MARCH 21, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ EXECUTIVE ORDER NO. 12171, ISSUED BY THE PRESIDENT PURSUANT TO
THE AUTHORITY CONTAINED IN 5 U.S.C. 7103(B), EXCLUDES CERTAIN AGENCIES
AND AGENCY SUBDIVISIONS FROM COVERAGE UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE ON THE BASIS THAT THEY HAVE BEEN
DETERMINED TO HAVE AS A PRIMARY FUNCTION INTELLIGENCE,
COUNTERINTELLIGENCE, INVESTIGATIVE, OR NATIONAL SECURITY WORK AND THAT
THE STATUTE CANNOT BE APPLIED TO THEM CONSISTENT WITH NATIONAL SECURITY
REQUIREMENTS. SECTION 1-210 OF THIS EXECUTIVE ORDER EXCLUDES THE
OFFICES OF THE ASSISTANT SECRETARY FOR DEFENSE PROGRAMS, DEPARTMENT OF
ENERGY.

/2/ INSOFAR AS THE AGENCY'S LETTER RAISES ADDITIONAL ISSUES, THOSE
ISSUES HAVE NOT BEEN CONSIDERED AND THEY WILL NOT BE ADDRESSED IN THIS
DECISION.

/3/ THE PANEL, IN CASE NO. 79 FSIP 45, LIKEWISE DECLINED TO ASSERT
JURISDICTION IN THE MATTER THERE INVOLVED BECAUSE EXECUTIVE ORDER NO.
12171 HAD EXCLUDED THE ACTIVITY FROM COVERAGE OF THE STATUTE.