United States, Department of Labor, Office of Worker'S Compensation Programs, San Francisco, California (Respondent/Agency) and American Federation of Government Employees, Local 2391, AFL-CIO (Charging Party/Union)

[ v61 p784 ]

61 FLRA No. 157



(Charging Party/Union)




September 15, 2006


Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on the Charging Party's exceptions to the attached decision of the Administrative Law Judge, finding that the Respondent did not violate § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to allow one of the Respondent's employees to continue to represent a co-worker in a Federal Employees Compensation Act (FECA) claim before the Respondent. The Respondent filed an opposition to the Charging Party's exceptions.

      Upon consideration of the Judge's decision, the Charging Party's exceptions and the entire record, we adopt the Judge's findings, conclusions, and recommendation to dismiss the complaint.

II.      Background and Judge's Decision

A.      Background

      The Department of Labor's Office of Worker's Compensation Programs (OWCP) administers the Federal Government-wide FECA claims program. The employee, a Union Steward who is also an OWCP FECA claims examiner [n1]  in the Respondent's San Francisco District Office, had been representing a co-worker (the claimant) regarding the claimant's FECA claim. The OWCP has a long-standing policy of adjudicating at just one office (the Kansas City Regional Office) those FECA claims from Department of Labor employees, and not allowing OWCP employees to represent anyone other than themselves in FECA proceedings. When it came to the attention of Respondent's Regional Director that the employee was representing the co-worker claimant in the claimant's FECA claim, the Regional Director ordered the employee to discontinue her representational activity of the claimant. The Respondent never filed a conflict of interest claim against the employee based upon this conduct. The employee terminated her representation of the claimant and the unfair labor practice claim here ensued.

B.      Judge's Decision

      As relevant here, the Judge set forth the standard for analyzing whether § 7120 [n2]  of the Statute had been violated:

whether an objectively reasonable person, with knowledge of all the facts and procedures, would question an employee's ability to perform their official duties and act as a manager and/or representative of a labor organization

See Judge's Decision at 17 (citing NTEU, 53 FLRA 1541, 1549 (1998) (Bernsen)).

      The Judge then discussed relevant Authority precedent, including Cong. Research Employees Ass'n, IFPTE, Local 75, 59 FLRA 994 (2004) (IFPTE). See Judge's Decision at 17. In that case, the agency reassigned a research project concerning collective bargaining from an employee, who was also the union president, stating that its research product needed to be above criticism and any apparent conflict of interest to maintain its impartial public reputation. The Authority found that there was an apparent conflict of interest [ v61 p785 ] under § 7120(e) and that the agency was within its rights to reassign the work at issue. The Judge also discusse United States Dep't of the Treasury, Office of the Chief Counsel, Internal Revenue Serv., Nat'l Office, 41 FLRA 402 (1991) (IRS). See Judge's Decision at 17-18. In IRS, an attorney, who was also the union vice president and steward, was told to stop representing an employee in an equal employment opportunity (EEO) matter. In that case, the Authority found no violation of § 7120 because the attorney's duties were not related to the EEO program.

      Here, the Judge applied the Bernsen standard and precedent to the case facts and found that the Agency's actions did not constitute an unfair labor practice. The Judge determined that the Agency had a legitimate interest in seeking to ensure that the processing of FECA claims is objective and fair. The Judge found that the employee's representational activities meant "she became an advocate in the same program where she adjudicates claims." Id. at 18. The Judge further found that the employee's representational activities were "directly related to the work she does as a claims examiner[.]" Id. at 19. Because of this relationship between the representational activities and the employee's work duties, the Judge determined that this case was distinguishable from IRS but was similar to IFPTE. Therefore, and consistent with IFPTE, the Judge found a conflict between the employee's "ability to perform her official duties and to act as union representative in this matter." Id. Thus, the Judge concluded that the complaint should be dismissed.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union excepts to the Judge's legal conclusions that there is a conflict between the employee's ability to perform her official duties and act as Union representative in the claimant's FECA case, and that the Respondent did not violate the Statute by refusing to allow the employee to continue her representation of the claimant in her FECA claim.

      In this regard, the Union asserts that this case is closer to the facts in Bernsen and IRS than IFPTE. The Union claims as speculative the contention that the employee's dual roles, as FECA claims examiner and as representative, present a conflict. Moreover, the Union argues that the conflict here was at most merely a "potential" and not an "apparent" conflict, and that the Authority should reject any "inherent conflict" considerations, as it did in IRS. See Exceptions at 15-17. The Union points out that the employee never served as the claims examiner in a case in which she was the representative. The Union also notes that no conflict of interest claim was filed against the employee.

      The Union disputes the grounds on which the Judge distinguished IRS, claiming that a reasonable person would find any distinction between this case and IRS to be without a difference. Moreover, the Union distinguishes IFPTE on two grounds: there is no appearance of an actual conflict of interest, and there is no public reputation issue present where the Agency must appear to be above suspicion. In sum, the Union asserts that there is no actual or apparent conflict of interest and the employee should have been permitted to continue representing the claimant in her FECA case.

B.     Respondent's Opposition

      The Respondent argues that an apparent, if not actual, conflict of interest exists in this case, and disputes the relevancy of the Authority's Bernsen decision, where a fellow employee challenged the agency's ethics counselor's ability to also hold the union president position. The Respondent notes that in Bernsen neither the agency nor the union found that the ethics counselor's union activity presented an impermissible conflict of interest, and that even an Office of Government Ethics inquiry had found no impropriety from the ethics counselor also acting as the union president. The Respondent also notes two additional distinctions: first, that there was a recusal policy available to the ethics counselor to deal with any conflicts of interest, and, second, that the ethics counselor did not engage in any consistent exercise of independent judgment, without which there could be no conflict of interest. The Respondent compares the situation in Bernsen with the facts of the present case, where the Respondent as the employing agency does object to the employee's conduct, there is no recusal policy available to deal with conflicts of interest, and the employee exercises independent judgment in handling FECA claims assigned her as an employee of the Respondent.

      The Respondent also claims that the Union ignores the similarities between the Authority's IFPTE decision and this case. In that connection, the Respondent asserts that the employee's work as an agency employee is directly related to her representational activity and that, like the agency involved in IFPTE, the Respondent also prohibited the representational activity to ensure agency credibility and impartiality. The Respondent contends that, like the situation in IFPTE, the Respondent's public reputation has to be above criticism regarding its impartial processing of FECA claims, and that is why it established its policy to prohibit the representation of an [ v61 p786 ] Agency employee claimant being represented by a fellow OWCP employee in a FECA claim.

      The Respondent also disputes the precedential value of the Authority's IRS decision. In that case, unlike the present case, the Respondent notes that the agency's own EEO office found no conflict of interest by one of the agency's attorneys representing another agency employee in an EEO case. Moreover, the regular duties of the attorney there did not involve EEO matters. In the present matter, by contrast, the Respondent's policy preventing this type of representation reflects the Agency's disagreement with this activity, and the employee's regular job duties involve the same matters as the representational activities.

IV.     Analysis and Conclusions

      In Bernsen, the Authority articulated its analytical framework for determining whether certain conduct violates § 7120(e) of the Statute. Under that framework, the Authority examines whether an objectively reasonable person, with knowledge of all the facts and procedures, would question an employee's ability to perform his/her official duties and act as a manager and/or representative of a labor organization. See Bernsen, 53 FLRA at 1549.

      The Judge found that the Respondent did not violate § 7120(e) - and thus § 7116(a)(1) - by refusing to let the employee here represent the claimant in her FECA claim before the Respondent. For the reasons that follow, we conclude that the Judge correctly found that the Respondent did not violate the Statute.

      In reaching her decision, the Judge discussed the Authority's holdings in IFPTE and IRS, the record and the parties' arguments. In explaining her conclusion, the Judge noted that the Respondent has a "legitimate interest in seeking to ensure that its processing of FECA claims is objective and fair and that it is free of any suggestion that is otherwise." Id. at 19. The Judge went on to note that the Respondent has taken specific steps to determine how FECA claims by the Respondent's employees would be processed, to ensure "that the process be objective and fair." Id.

      The Judge found that the union representation work being done by the employee here was "directly related to the work she does as a claims examiner for OWCP." See Judge's Decision at 19. According to the Judge, the circumstances here were distinguishable from IRS, because the union representative here was advocating employee interests in the "same program where [the union representative] adjudicates claims." Id. The Judge determined that the factual circumstances here were similar to the facts set found in IFPTE. The Judge co