[ v53 p1541 ]
53:1541(138)CO
The decision of the Authority follows:
53 FLRA No. 138
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_______
NATIONAL TREASURY EMPLOYEES UNION
(Respondent/Union)
and
STUART E. BERNSEN
(Charging Party)
and
PENSION BENEFIT GUARANTY CORPORATION
(Respondent/Agency)
and
STUART E. BERNSEN
(Charging Party)
________
WA-CO-50300
WA-CA-50302
________
DECISION AND ORDER
March 11, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members
I. Statement of the Case
These unfair labor practice (ULP) cases are before the
Authority on exceptions to the attached decision of the
Administrative Law Judge (Judge) filed by Counsel for the General
Counsel (General Counsel) and the Charging Party. The Respondents,
National Treasury Employees Union (Union) and Pension Benefit
Guaranty Corporation (Agency), filed Oppositions to the Exceptions.
The complaints charge that the Respondents violated section
7120(e) of the Federal Service Labor-Management Relations Statute
(Statute) by permitting an employee to simultaneously serve as both a
chapter president for the Union and an ethics official for the
Agency. The complaints allege that the Union and the Agency thus
violated section 7120(e) of the Statute because such dual activity by
the employee results in a real or apparent conflict of interest. The
Judge found that no conflict of interest was created by the
employee's activity and that neither the Union nor the Agency had
violated section 7120(e) of the Statute. Accordingly, the Judge
recommended that the complaints be dismissed.
Upon consideration of the Judge's decision and the entire
record, we adopt the Judge's findings, conclusions, and
recommendations only to the extent consistent with this decision.
II. Background and Judge's Decision
A. The Facts
The facts, set forth in detail in the Judge's decision, are
briefly summarized here. In October 1994, Holli Jaffe was elected
president of the Union, Chapter 211, defeating the incumbent
president, Stuart Bernsen. Chapter 211 of the Union is the exclusive
representative of a bargaining unit of about 400 professional and
nonprofessional employees of the Agency. Jaffe, who was employed as
a GS-14 attorney with the Agency, also served, as a collateral duty,
as an ethics counselor for the Agency. Bernsen filed ULP charges,
asserting, inter alia, that Jaffe's simultaneously serving as chapter
president and an ethics counselor was a real or apparent conflict of
interest in violation of section 7120(e) of the Statute. The
General Counsel issued a consolidated complaint against the Union and
the Agency.
The Agency, in accord with 5 C.F.R. 2600 et seq., maintains
an ethics program to advise and educate its employees of their
responsibilities under the Standards of Ethical Conduct for
Government Employees in the Executive Branch. The Agency ethics
program is supervised by officials in its General Counsel's office to
whom the Agency has delegated authority to make ethics determinations
concerning actions permitted or required by other agency employees.
See 5 C.F.R. 2635.102(b). These officials are assisted in
maintaining the Agency's ethics program by a number of volunteer
ethics counselors who are assigned ethics duties collateral to their
other work. Unlike the designated officials in the Agency's office
of General Counsel, ethics counselors are not authorized to make
ethics determinations under the Standards of Conduct. Rather, ethics
counselors' duties include training employees on ethics standards,
responding to employee inquiries concerning ethics regulations,
reviewing financial disclosure forms of employees, and assisting
employees in drafting outside employment requests. Jaffe volunteered
for and has served continuously as an ethics counselor since April
1991.
Prior to being elected president, Jaffe served in various
official capacities for Chapter 211. She was a steward, an appointed
vice-president, and in October 1992 was elected vice-president of the
chapter. Jaffe also served as chief negotiator for the chapter.
During this period President Bernsen assigned Jaffe, and other ethics
counselors who were also union officials, to handle ethics-related
cases. There were no conflict of interest complaints concerning
Jaffe's ethics counselor duties while she acted as a steward, vice-
president, or chief negotiator for the chapter. Nor were there any
such complaints against other employees who served in both
capacities.
There is a recusal policy establishing procedures that are
implemented when ethics counselor and representational
responsibilities overlap. If an ethics counselor is assigned an
ethics task or contacted by an agency employee concerning a matter
that the ethics counselor has previously worked on in their
representational capacity, the ethics counselor will advise the
official making the assignment or the employee seeking advice to
contact another one of the counselors. Similarly, if an ethics
counselor were asked, by for example a bargaining unit employee, to
handle a matter in their capacity as a union representative that the
representative had already worked on as an ethics counselor, the
counselor/representative would recuse and refer the requester to
another Chapter 211 officer or steward.
As a result of the ULP complaint being filed, Agency ethics
officials and Jaffe sought the opinion of the Office of Government
Ethics (OGE) as to the propriety of Jaffe's dual status. OGE opined
that Jaffe's serving as both chapter president and an ethics
counselor did not create an appearance problem violating 5 C.F.R.
2635.502 or constitute a conflict of interest in violation of 5
U.S.C. 208.
B. The Judge's Decision
As with the facts, the salient findings and conclusions in the
Judge's decision are briefly summarized here. The Judge first set
out the applicable legal standard for analyzing whether section
7120(e) has been violated. In this case the question is whether an
objective, reasonable person, with knowledge of all the facts, would
believe that simultaneously holding the ethics counselor and chapter
president positions created a conflict of interest. In describing
the standard, the Judge cited U.S. Department of the Treasury, Office
of the Chief Counsel, Internal Revenue Service, National Office, 41
FLRA 402, 414 (1991) (Treasury). The Judge emphasized that the
standard is objective, and is not triggered by the subjective beliefs
of those who do not understand the circumstances and the processes
involved, citing Merit Systems Protection Board and Merit Systems
Protection Board Professional Association, 12 FLRA 137, 141 n.7
(1983) (MSPB).
Having set out the standard, the Judge resolved that no
reasonable person with knowledge of the facts would conclude that
Jaffe's occupying both positions at the same time would create an
apparent conflict of interest. In reaching this conclusion, the
Judge relied on a number of factors: First, there were no conflict
of interest allegations when Jaffe held important positions with and
exercised management authority for the chapter prior to her becoming
chapter president. Second, ethics counselors are not involved in
investigating, processing, or prosecuting disciplinary actions, and
there is no indication that an ethics counselor ever has been or ever
could be involved in a disciplinary action.
In the Judge's view, the remote possibility that a conflict
might develop does not create an apparent conflict of interest under
section 7120(e). The Judge noted that Jaffe routinely clarifies
whether she is being approached in her capacity as an ethics
counselor or as a Chapter 211 official. However, even if a conflict
were to arise, the recusal policy would adequately resolve the
problem. There was no evidence that employees might be reluctant to
approach Jaffe with a grievance involving an ethics matter or that
Jaffe might be prone to reject such a grievance. Moreover, the Judge
believed it noteworthy that neither the Union nor the Agency, having
full knowledge of the facts and circumstances, believed that Jaffe's
dual responsibilities created an apparent conflict of interest.
Even assuming that Jaffe had divided loyalties as a result of
her dual responsibilities, the Judge pointed out that the Supreme
Court recently recognized, in a related context, that an employee can
serve both his or her employer and union. NLRB v. Town & Country
Electric, Inc., 116 S. Ct. 450, 456 (1995) (Town & Country Electric)
(paid union organizers sent to apply for employment and organize the
company were "employees" entitled to protection under the NLRA
despite their so-called divided loyalties because service to the
union for pay does not equate to abandonment of service to the
company). Just as the Supreme Court noted that an employee can serve
two masters, the Judge held that here Jaffe performs ethics work on
government time and representational work on union time, and never
acts as both an ethics counselor and a union official on the same
matter.
Turning to the possibility that a bargaining unit employee
might be disciplined for ethical indiscretions and this would create
a conflict, the Judge first noted that such disciplinary actions were
rare and, in any event, not handled by the ethics counselors. If a
conflict did arise, however, the recusal policy would operate to
address the conflict.
The Judge distinguished this case from Department of Health,
Education, and Welfare, 6 FLRA 628 (1981) (HEW) where the Authority
upheld an administrative law judge's determination that an agency had
not committed a ULP when it terminated an employee's appointment as
an agency equal employment opportunity counselor because the employee
also held the position of union vice-president. The Judge noted that
in HEW, it was the agency -- not the Authority -- that determined
that there was a conflict of interest. On the contrary, the Judge
concluded that here, after carefully examining the situation, seeking
advice from OGE, and noting its recusal policy, the Agency concluded
that no apparent conflict existed. Similarly, the Judge noted that
the Union had examined Jaffe's dual roles and found no apparent
conflict of interest.
Finally, the Judge believed it noteworthy that OGE had
concluded that Jaffe's activities created neither an apparent nor
real conflict of interest under law or regulation. Nor had OGE found
fault with this arrangement when it audited the Agency's ethics
program. Relying on Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984) (Chevron) the Judge accorded
deference to OGE's interpretations concerning the laws and
regulations it is charged with administering.
Concluding that section 7120(e) had not been violated, the
Judge recommended that the consolidated complaints be dismissed.
III. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel asserts four exceptions to the Judge's
recommended decision that no apparent conflict of interest existed
within the meaning of section 7120(e). First, the General Counsel
asserts that the Judge erred in considering and relying upon evidence
that was irrelevant and outside the temporal scope of the charge
and complaint. Specifically, the General Counsel claims that the
Judge improperly adjudicated issues outside the scope of the
complaint and relied on the motivation and actions of the Charging
Party. Second, the General Counsel asserts that the Judge failed to
define and apply an appropriate standard for determining whether an
apparent conflict of interest existed under section 7120(e). Third,
the General Counsel argues that the Judge erred by misapplying legal
precedent in determining whether an apparent conflict of interest
existed. Fourth, the General Counsel claims that the Judge erred in
concluding that the record did not establish that Jaffe had an
apparent conflict of interest under the Statute.
B. Charging Party's Exceptions
The Charging Party asserts that the Judge failed to be
impartial as evidenced by the Judge's hostility toward and failure to
respect the role of the Charging Party. As a result, in the Charging
Party's view the Judge's recommended decision "does not represent a
professional or judicial analysis of the record" and should be
ignored. Charging Party's Brief at 32. Further reasons asserted by
the Charging Party for rejecting the recommended decision include the
Judge's: failure to consider and apply the common law of agency as
it relates to labor law and apparent conflicts of interest when an
agent has two principals; failure to apply binding and dispositive
Authority precedent, specifically HEW; rejection of the principle
that pursuant to section 7120(e), employees are entitled to have
union representatives who have single-minded loyalty to the
employee's interests; treating of apparent conflicts of interests to
be meaningless and ignoring the potential for conflicts of interest;
erroneous reliance on clarification of unit cases as indicative of
the meaning of section 7120(e); erroneous reliance on Town & Country
Electric; erroneous reliance on the recusal policy to prevent
violations of section 7120(e); adoption of an erroneous standard to
evaluate conflicts of interest; and erroneous consideration of OGE's
opinion concerning section 7120(e). Moreover, the Charging Party
filed numerous exceptions pointing to alleged inconsistencies in the
Judge's decision that should have led to a different recommendation.
Lastly, the Charging Party filed 9 procedural exceptions,
challenging the Judge's ruling on various subpoena requests and
limitations the Judge placed on the Charging Party's participation in
the hearing.
C. Respondent Agency's Opposition
The Agency asserts that the Judge applied the correct legal
standard in this case and properly relied on Town & Country Electric
in rejecting the "single-minded loyalty" standard urged by the
General Counsel and the Charging Party. Agency's Brief at 22. In
applying this objective standard, the Agency argues that the Judge
properly considered the fact that Jaffe's duties do not involve the
exercise of independent judgement or authority over employees and
also took note of the lack of complaints concerning Jaffe's dual
roles. Contrary to the assertions of the excepting parties, in the
Agency's view the Judge properly analyzed and applied appropriate
precedent, including Town & Country Electric and HEW. The Agency
posits that after examining the evidence, including Jaffe's role as
chapter president and ethics counselor in disciplinary matters and
negotiations, the Judge properly found that the evidence in this case
failed to establish an apparent conflict of interest and that the
recusal policy would preclude conflict problems. Lastly, the Agency
asserts that Bernsen's motivation is relevant and the Judge properly
considered both pre-charge and post-charge evidence conduct in
evaluating this case.
D. Respondent Union's Opposition
The Union's arguments are tailored to rebut the exceptions
raised by the General Counsel. As such, the Union asserts that the
Judge: relied on relevant and appropriate evidence to conclude that
no apparent conflict of interest existed under section 7120(e);
applied the appropriate legal standard for examining an apparent
conflict under section 7120(e); properly considered and applied
controlling Authority precedent; and properly concluded that the
record established a lack of an apparent conflict of interest.
IV. Analysis and Conclusions
A. The Judge Defined and Properly Applied an Appropriate
Standard for Determining if an Apparent Conflict of
Interest Exists in this Case
1. The Standard
The Judge, relying upon Treasury, 41 FLRA 402, opined that
apparent conflicts of interest under section 7120(e) must be
considered in light of all the circumstances and that the standard
"is triggered where an objectively reasonable person would view the
facts as creating such a conflict." Judge's decision at 25-26. The
Judge also determined that the reasonable person standard was
objective rather than subjective. As a result, the standard is not
triggered by those who might have mistaken impressions as to either
the nature of one's duties or the governing laws or rules. On the
contrary, "[t]he objectively reasonable person is presumed to know
the duties in question and related policies and procedures." Id. at
26. In this regard, and as the Judge noted, in a representation case
the Authority recognized that an "appearance of a conflict of
interest is []dispelled by knowledge of the process by which Agency
management reviews the work product of [the employee involved]."
MSPB, 12 FLRA at 141 n.7.
In other areas where there are requirements involving the
"appearance" of impropriety, the standards utilized are comparable
with the test adopted by the Judge. For instance, in describing
rules concerning personal and business relationships as related to
performing official duties, 5 C.F.R. 2635.502, the OGE explained
that the test is "whether a reasonable person with knowledge of the
relevant facts would question" an employee's impartiality. 57 Fed.
Reg. 35025 (August 7, 1992). Similarly, canon 9 of the Code of
Professional Responsibility for Attorneys requires that "[a] lawyer
should avoid even the appearance of professional impropriety."
Compliance with this requirement has been subjected to an "objective
member of the public at large" standard. United States v. Smith, 653
F.2d 126, 128 (4th Cir. 1981). As a result, "a fanciful, unrealistic
or purely subjective suspicion of impropriety" does not implicate the
canon. Id.
The General Counsel and the Charging Party disagree with the
standard adopted by the Judge, arguing that it is inconsistent with
both the laws of agency and the intent of section 7120(e). They
argue that under agency law, an agent can only serve one principal
and here Jaffe must serve two. The Charging Party asserts that
employees are entitled to representatives who have single-minded
loyalty to the employee's interests. Both the General Counsel and
the Charging Party claim that the nature of the duties in these two
positions is such that there is an apparent conflict.
In our view, the Judge properly rejected these arguments,
relying in part on the United States Supreme Court's decision in Town
& Country Electric 116 S. Ct. 450. The General Counsel's and the
Charging Party's assertions that this reliance was misplaced are not
persuasive. Although the Supreme Court's decision does not resolve
the apparent conflict of interest issue here, it does offer guidance
on agency law. As a result, it was permissible for the Judge to take
into consideration the Supreme Court's pronouncement that so long as
service to one master does not amount to abandonment of the service
owed to the other, an employee can serve two masters.
We agree with the Judge's rejection of the "single minded
loyalty" standard, because if this were the rule, Federal sector
unions could only be serviced by full-time paid union staff. As the
Judge noted, this would be both unworkable and inconsistent with the
Statute. As a result, the Judge properly concluded that there was
nothing inherently improper about Jaffe simultaneously holding the
positions at issue in this case.
In sum, the standard developed by the Judge -- 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 -- is an appropriate standard for analyzing whether
section 7120(e) has been violated.
2. Application of the Standard
The General Counsel and/or the Charging Party assert that in
applying the objective, reasonable person standard, the Judge
improperly considered and relied upon the reasonableness of the
agency's actions, the views of OGE, the fact that no employees had
filed complaints over a period of years, and the agency's recusal
policy. The General Counsel and the Charging Party thus argue that
the Judge erred by applying an objective standard in a subjective
manner.
For the reasons explained here, we do not find it error for the
Judge to have considered the views of the Agency and the Union, the
opinion of OGE, and the lack of complaints from the Agency's
employees. That this evidence is subjective does not mean that it
must be ignored in applying an objective standard. Additionally, it
was proper for the Judge to consider steps the Agency had taken to
avoid actual or apparent conflicts.
The fact that neither the Agency nor the Union viewed the
simultaneous holding of these positions as creating an apparent
conflict is pertinent on the issue of whether there is in fact an
apparent conflict of interest. The Agency and the Union represent an
important part of the community of reasonable persons who might have
reason to question Jaffe's ability to simultaneously perform the
responsibilities of ethics counselor and union official. OGE's view
that there is no conflict of interest here is also probative. As the
agency charged with administering the Government's ethics program,
OGE has an interest in avoiding the appearance of such conflicts and
is uniquely qualified to offer an opinion concerning where conflicts
might exist. Lastly, there is no evidence that Agency employees,
presumably aware that other individuals have simultaneously served as
union officials and ethics counselors for years, have raised
accusations of apparent conflicts. This silence by Agency employees,
also clearly within the relevant, reasonable person community, is
evidence of a lack of an apparent conflict of interest. To be sure,
the General Counsel and the Charging Party are correct in asserting
that subjective views of the Agency, Union, OGE, as well as the
evidence of a lack of complaints from employees, are not
determinative for the purposes of applying an objective standard.
However, it goes too far to exclude the views of these presumably
objective and reasonable persons and entities.
As the General Counsel points out, in applying the standard,
the Judge considered matters occurring more than 6 months prior to
the filing of the charges in this case. Specifically, the Judge took
note of the fact that no conflict questions had been raised during
the years in which Jaffe was an ethics counselor and served in other
union-official positions. In arguing that it was error for the Judge
to consider this information, the General Counsel cites numerous
cases establishing the unchallenged proposition that events occurring
more than 6 months prior to the filing of a charge cannot be the
subject of a ULP complaint. None of this authority, however,
suggests that in evaluating a timely ULP charge and complaint, a
Judge may not consider what did or did not happen more than 6 months
before the charge was filed. Pertinent authority is, in fact, to the
contrary. Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 416 (1960)
(where occurrences within the 6-month limitations period may
constitute unfair labor practices, earlier events, occurring outside
the limitations period, may shed light on the character of the
matters occurring within the limitations period); Axelson
Manufacturing Co., 88 NLRB 761, 766 (1950) (the statute of
limitations does not forbid the introduction of relevant evidence --
not occurring within the 6-month period -- if that evidence bears on
the issue of whether a violation occurred during the 6-month period).
Moreover, the Judge in this case did not consider this evidence for
the direct purpose of determining whether the Respondents had
committed unfair labor practices. Rather, the Judge considered the
lack of complaints over a period of years in order to determine
whether the employees at the Agency had raised questions concerning
the simultaneous holding of these positions.
It also was not erroneous for the Judge to take note of the
steps that the Agency had taken in order to avoid either an actual or
apparent conflict of interest. For example, the Judge considered
that the Agency had limited the role of ethics counselors to
reviewing financial disclosure reports, ethics training, and offering
prospective ethics-related advice. Ethics counselors like Jaffe have
no program responsibilities and, unlike the designated officials in
the Agency General Counsel's Office, do not make ethics
determinations or grant waivers. Also, the Judge properly considered
the recusal policy in determining whether there was an apparent
conflict of interest in this case. Although, as the General Counsel
and the Charging Party assert, the recusal policy appears designed to
deal with actual rather than apparent conflicts, the existence of a
recusal policy serves to assuage concerns over potential conflicts
and is properly considered a device designed to dispel appearance of
conflict problems.
In short, we find that the Judge reasonably considered the
views of those in the community involved in analyzing whether a
reasonable person, with knowledge of all the facts and circumstances,
would question Jaffe's ability to simultaneously serve in both
positions. We also conclude that it was proper for the Judge to
consider the steps the Agency had taken to avoid actual or apparent
conflicts.
B. The Judge Properly Concluded that There was No Apparent
Conflict of Interest in this Case
On applying the reasonable person standard in this case, the
Judge decided that "'no reasonable person with knowledge of the
reasonable facts,' would conclude that Jaffe's occupying the Chapter
presidency and ethics counselor [positions] at the same time would
create an apparent conflict of interest." Judge's decision at 27.
The General Counsel and the Charging Party assert that the Judge's
decision is erroneous because he failed to follow the Authority's HEW
, 6 FLRA 628 decision, relied on inapplicable representation case
precedent, improperly afforded deference to OGE's opinion, and
blurred the distinction between apparent conflicts of interest and
those that are actual or potential.
1. The Judge's Decision is Not Inconsistent with HEW
Both the General Counsel and the Charging Party assert that the
Judge's adopted conclusion in HEW, that there was an apparent
conflict of interest, dictates a similar determination in this case.
In their view, if the dual roles of EEO Counselor and union vice-
president present an apparent conflict of interest, then so must
simultaneously serving as an agency ethics counselor and local
president. The Judge here distinguished HEW by relying on two
factors: First, the Agency acted reasonably under the circumstances;
second, the scenario here is unlike the one presented in HEW, and the
Agency here did not conclude there was an apparent conflict of
interest in holding both positions.
Although the reasonableness of the Agency's conduct in
analyzing the existence of an apparent conflict of interest is not
determinative, the Agency's policies and practices are relevant. In
HEW, the Judge concluded that the agency had a "policy prohibiting
such concurrent office-holding." 6 FLRA at 637. Though not a stated
basis for the Judge's finding in HEW, the existence of such an agency
policy would contribute to -- and perhaps even establish -- an
appearance of a conflict of interest if an employee were allowed to
occupy dual positions in violation of such a policy. Here, on the
other hand, the Judge found, and it is not disputed, that there was
no such policy. To the contrary, it is clear that Jaffe, as well as
several other Union officials, openly served as ethics counselors for
the Agency. The lack of any prohibition against this practice, along
with the fact that it had been an unchallenged custom for years,
distinguish this situation from HEW.
The fact that the Agency concluded that Jaffe's simultaneous
service as an ethics counselor and Union official did not present an
apparent conflict of interest also distinguishes this case from HEW.
In HEW, the agency required the employee to choose between EEO
counselor duties and his position as a union official. Here, the
Agency was content to have Jaffe occupy both positions. Moreover, it
does not necessarily follow that an apparent conflict created by a
union official serving as an EEO counselor would also be present when
a union official serves as an ethics advisor. In other words, the
EEO counselor and ethics advisor positions are different, as are any
apparent conflicts that might arise from serving in these positions
while functioning as a union official. As such, the determination
that it was not a ULP for the agency in HEW to require a choice
between the positions does not necessarily lead to the conclusion
that simultaneously occupying the different positions in this case
creates an apparent conflict of interest under section 7120(e).
These factors rebut the General Counsel's and Charging Party's
assertions that Authority precedent dictates a conclusion that there
is an apparent conflict of interest here.
2. Precedent in Authority Representation Cases
The General Counsel and the Charging Party object to the
Judge's reliance upon Authority representation cases. For example,
the Judge noted that as an ethics counselor, Jaffe did not
consistently exercise independent judgment and, absent this element,
there could be no apparent conflict of interest, citing U.S.
Department of the Treasury, Office of Chief Counsel, 32 FLRA 1255
(1988) (Office of Chief Counsel). However, the issue in Office of
Chief Counsel was whether the employee involved, who exercised some
supervisory-type responsibilities, could be included in a bargaining
unit. On finding that the employee did not consistently exercise
independent judgment, the Authority rejected the argument that the
employee's inclusion in the unit created a real or apparent conflict
of interest. 32 FLRA at 1257, 1260. The Judge also cited U.S.
Office of Personnel Management, Atlanta Regional Office of Federal
Investigations, Atlanta, Georgia, 48 FLRA 1228 (1993) (Office of
Personnel Management) where the Authority rejected an argument that
including investigators in a bargaining unit created an actual or
apparent conflict of interest. In that case the Authority concluded
that the employee-investigators seldom investigated employees. 48
FLRA at 1235. The Judge reasoned that even if Jaffe were to
investigate a bargaining unit employee, the rarity of such
investigations would not be disqualifying.
The General Counsel and the Charging Party are correct that
representation decisions are of little, if any import, in determining
whether there is an apparent conflict of interest here. Office of
Chief Counsel and Office of Personnel Management would be more on
point if the dispute concerned whether Jaffe was properly within the
bargaining unit. However, citation to representation decisions does
not nullify the Judge's conclusion that there was no apparent
conflict of interest here. Moreover, the underlying facts relied on
by the Judge -- that Jaffe's ethics counselor duties do not require
the exercise of independent judgment or the investigation of
bargaining unit employees -- are relevant here.
3. Deference to OGE Opinion
The Judge granted Chevron deference to OGE's determination that
there was no appearance of conflict of interest, under the
Government-wide ethics regulations, as a result of Jaffe's dual
status as both a union official and an ethics counselor. Both the
General Counsel and the Charging Party object to the Judge's taking
notice of the OGE opinion, arguing that it should not have been
considered. Both are correct in asserting that OGE's view of what is
an apparent conflict under section 7120(e) is not entitled to
deference. However, we conclude that the Judge only deferred to
OGE's opinion concerning the regulation it administers 5 C.F.R.
2600 et seq. The Judge merely considered OGE's position on Jaffe's
dual status as "further evidence that her duties do not create an
apparent conflict of interest within the meaning of section 7120(e)
of the Statute." Judge's decision at 38. We discern no error here.
4. Potential Conflicts
The Judge found that the potential for a conflict does not
equate to an apparent conflict in this case. In support of this
conclusion, the Judge relied upon Jaffe's testimony that she
clarifies the capacity in which her advice or assistance is being
sought, the existence of the recusal policy, the limited function of
ethics counselors, the relatively few disciplinary actions taken
against Agency employees for ethics-related matters, and the fact
that there have been no conflict of interest challenges against
Jaffe.
The General Counsel and the Charging Party argue that the Judge
should have considered the potential for conflicts in analyzing
whether there was an apparent conflict. They assert that if there is
a significant potential for a conflict, then there is, in fact, an
apparent conflict.
The potential for conflicts of interests was appropriately
considered by the Judge in analyzing whether a reasonable person
would question Jaffe's ability to simultaneously hold both positions.
If, as the General Counsel and the Charging Party assert, there was a
high likelihood that conflicts might occur, this would suggest that
there was, in fact, an apparent conflict. However, the Judge
determined that the chance of conflicts developing was remote given
Jaffe's clarification of the capacity in which her advice or
assistance was being sought, the limited role of the Agency's ethics
counselors, the relatively few ethics-related disciplinary actions at
the Agency, and the fact that there had been no complaints concerning
Jaffe's dual roles. The Judge went on to point out that if a
conflict did occur it would be addressed by the recusal policy. The
Judge's conclusions in this regard are reasonable and supported by
the record.
C. The Other Alleged Errors Committed by the Judge did Not
Affect the Outcome of the Case
The General Counsel and/or the Charging Party raise several
other exceptions, all of which deal with the manner in which the
Judge dealt with and evaluated the actions of the Charging Party. As
specifically and briefly addressed here, we are not persuaded that
any of the contentions raised by the General Counsel and the Charging
Party require reversal of the Judge's decision in this case.
1. The Judge's Consideration of the Charging Party's
Post-Complaint Activities
The General Counsel excepts to the Judge considering post-
charge activities undertaken by the Charging Party following his
defeat by Jaffe for the presidency (e.g., distributing fliers
throughout the Agency accusing Jaffe of misconduct, having his
(Bernsen's) supporters accuse Jaffe of improprieties, etc.).
The General Counsel correctly argues that Bernsen's post-charge
conduct is irrelevant to whether Jaffe's simultaneous holding of
these positions is an apparent conflict of interest. However,
although the Judge described the Charging Party's activities in his
recommended decision, Bernsen's post-charge conduct does not appear
to have played a significant part in the Judge's finding that there
was no apparent conflict of interest here. Rather, Bernsen's post-
charge activities prompted the Judge to draw two conclusions: First,
that Bernsen was biased against Jaffe, so Bernsen's views concerning
whether there was a conflict were not those of a reasonable,
objective person. Based on the record before us, we perceive no
error in this determination. Second, the Judge considered Bernsen's
activities as evidence of the Charging Party's motives in filing the
charge in this case. This is discussed in the following subsection.
2. The Judge's Consideration of the Motivation of the
Charging Party
The Judge repeatedly referenced the fact that the Charging
Party had pursued this case because Jaffe defeated him in the
election for the chapter presidency. The General Counsel argues that
the Charging Party's motivation should not have been considered by
the Judge. It is true that Bernsen's motivations here are irrelevant
because the ultimate question in this, or any other ULP case, is
whether there is a violation of the Statute -- not what motivated the
charging party to file its charge. Nonetheless, the Judge's oft-
repeated view that Bernsen filed a charge here because he was a sore
loser in an election with Jaffe does not undermine the Judge's
conclusion that there was no apparent conflict of interest in the
case. We conclude that there is ample relevant evidence supporting
the Judge's determination that a reasonable person with knowledge of
the facts would not question Jaffe's ability to simultaneously hold
both positions. The fact that the Judge also considered an
irrelevant factor here does not supplant or dislodge the other
evidence on which the Judge premised his decision.
3. The Judge's Alleged Bias Against the Charging Party
The General Counsel and the Charging party assert that the
Judge formed an unfavorable view of the Charging Party in this case.
In his decision, the Judge used a number of disparaging terms to
describe the Charging Party and/or his arguments, e.g.,
"disrespectful" and "unprofessional" Judge's decision at 20; "hyper
technical and senseless" id. at 22; "poor judgment" id. at 23;
"devious" and "Machiavellian" id. at 33. Additionally, the Judge
went to some lengths to rebuke the Charging Party for the manner in
which this case was pursued and prosecuted. The Charging Party
asserts that the Judge failed to respect the role of the Charging
Party in this case.
It is evident that the Judge became frustrated with and
upbraided the Charging Party and his counsel in this case.
Although the Judge may have uttered some intemperate remarks to the
Charging Party and characterized the Charging Party's arguments and
activities in a deprecating manner, the Judge's recommended decision
does not appear to be tainted by any bias against the Charging Party.
Rather, the Judge's comments appear to reflect the Judge's
impatience in dealing with litigious and contentious parties in this
case. Although we do not condone intemperate comments and
deprecating characterizations by any Judge, based on our review of
the record, we do not conclude that the Judge was biased against the
Charging Party.
As for the claim that the Judge failed to respect the role of
the Charging Party, by regulation the Judge properly limits
participation in, and regulates the course of, unfair labor practice
proceedings. 5 C.F.R. 2423.16; 2423.19(i). We do not find that
the rulings and limitations made by the Judge vis-a-vis the Charging
Party in this case exceeded the Judge's appropriate regulatory
authority.
V. Order
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
NATIONAL TREASURY EMPLOYEES
UNION
Respondent/Union
and
STUART E. BERNSEN
Charging Party/
Individual
and
PENSION BENEFIT GUARANTY
CORPORATION
Respondent/Agency
and
STUART E. BERNSEN
Charging Party/
Individual
Case Nos. WA-CO-50300
WA-CA-50302
Martha Finlator and John Mceleney, Esq.
For the Respondent Union
Raymond M. Forester and Holli Beckerman Jaffe, Esq.
Patrick S. Menasco and Philip R. Hertz, Esq.
For the Respondent Agency
David Powers and Stuart E. Bernsen, Esq.
For the Charging Party
Christopher M. Feldenzer, Esq.
For the General Counsel
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
On March 10, 1995, Stuart E. Bernsen (hereafter called
Bernsen or the Charging Party) filed an unfair labor
practice charge alleging a violation of section 7116(a)(1),
(3), (5) and (8) and 7120(e) by the Pensions Benefit
Guarantee Corporation (hereafter called Respondent or
PBGC)and a violation of section 7716(b)(8) by the National
Treasury Employees Union (hereafter called Respondent NTEU
or THE Chapter) based on the assertion that Holli Beckerman
Jaffe (hereafter called Jaffe) is a confidential management
employee and has an actual and apparent conflict of
interest because she serves as both an ethics official
and Chapter President. Thereafter, on September 11,
1995, the Washington, D.C. Regional Director issued a
Consolidated Complaint and Notice of Hearing alleging that
the Respondents violated the Federal Service Labor-
Management Relations Statute, as amended (herein called the
Statute) by continuing Jaffe in those positions despite the
existence of an apparent conflict of interest.
A hearing on the Consolidated Complaint was held in
Washington, D.C. at which all parties were afforded full
opportunity to adduce evidence, call, examine and cross-
examine witnesses and argue orally. Briefs were timely
filed by Respondent and the General Counsel and have been
carefully considered.
Upon the entire record in this matter, my observation
of the witnesses and their demeanor and from my evaluation
of the evidence I make the following:
Statement of the Facts
A. Background.
After investigation, the General Counsel proceeded to
trial solely on the issue of whether an apparent conflict
of interest was created by Jaffe's serving as ethics
counselor while she was Chapter President.
The two principal characters in the case are Jaffe, the
instant President of NTEU Chapter 211, who won that office
in October 1994 and Bernsen, the immediate past President
of Chapter 211, who lost his office to Jaffe and whose
subsequent actions certainly tend to show that he was
embarrassed by his loss.
In October 1994, in what must have been a total
surprise to Bernsen, Jaffe unseated him as Chapter
President. Bernsen ran with eight other candidates, on
what was called the "Progressive" slate. To his apparent
chagrin, Bernsen was the only "Progressive" slate member
not elected in the October 1994 election. Bernsen,
obviously upset by the notoriety, began efforts to reverse
the outcome of the election by filing a plethora of charges
alleging election irregularities. It is certainly my view
that Bernsen continued to try smearing Jaffe during the
course of this hearing. Of particular note are the
questions Bernsen asked on cross-examination, the rambling
and irrelevant questions appeared to be designed to elicit
embarrassing answers from not only Jaffe but agency
management as well, and in fact served no useful purpose.
First, Bernsen filed an appeal of the election with
NTEU. That appeal alleged inter alia that Jaffe was
ineligible to run for the office of President because of
"actual and/or apparent conflicts of interest, including
conflicts of interest due to her position with the Employer
as Agency Ethics Official. This violates 5 U.S.C.
7120(e)." That election appeal was denied on March 21,
1995.
On January 11, 1995, Bernsen filed a complaint with the
Department of Labor (hereafter called DOL or the Assistant
Secretary) alleging, inter alia, that:
Holli Jaffe was not qualified to be a candidate
for President of NTEU Chapter 211 and is
disqualified from serving as Chapter President due
to her . . . employment as a PBGC Ethics Official.
Her confidential status and actual and apparent
conflicts of interest between her Agency duties
and her duties as Union President violates 5
U.S.C. 7120(e).
This matter was decided by DOL on June 5, 1996. On June
14, 1996, Counsel for the General Counsel, after giving
notice to the parties, submitted the DOL decision to me,
requesting that official notice be taken inasmuch as the
decision was not available at the time of the hearing and
to the extent that it addresses certain jurisdictional
issues raised by the Respondents. Since the document is in
the public domain, I hereby, take judicial notice of that
decision. Since, however it appears that there are
insufficient facts stated in the DOL decision to make it of
any precedential value in the instant proceeding, it is
found, therefore, not to be particularly helpful in
resolving the instant matter. It is worthy of note,
however, that DOL in its decision defers to the Authority
regarding the issue of an "actual or apparent conflict of
interest."
Bernsen apparently also drafted and prepared complaints
for others to file with DOL regarding Jaffe's eligibility
and other matters concerning the election.
Following his defeat by Jaffe, Bernsen also started to
distribute fliers throughout PBGC accusing Jaffe of
misconduct and ineligibility to serve as President of NTEU
Chapter 211. The fliers, particularly those made available
on the record, at the very least misstate actions and
conclusions of the Authority and the General Counsel.
Bernsen did not testify on his own behalf nor was he called
to testify by the General Counsel. His position as voiced
by his counsel apparently is that the questionable
literature that he distributed is protected by the First
Amendment. Others, particularly the Respondents consider
it a sign of bitterness and poor taste. Bernsen's actions
certainly help set the tone for this case and reveal a
motivation that is not so difficult to understand, he did
not know how to lose.
Sometime around October 24, 1994, Bernsen supporters on the
Chapter's Executive Board, which as previously noted, was composed
mostly of Bernsen's "Progressive" slate member's Snead and Seitz
"tag-teamed" and "took shots at" newly elected Jaffe based on
allegations apparently scripted by Bernsen. These accusations
included a conflict of interest charge. After Jaffe responded in
the meeting, the Executive Board apparently dropped its complaints
and settled into a productive working relationship with her. In
any event, there is no indication that the executive board members
did not have a compatible working relationship and the conflict of
interest accusation does not appear to have surfaced in any other
executive board meetings.
Despite Bernsen's post-election campaign, no employee (other
than Bernsen and the two "Progressive" slate-mates at the October
24, 1994 Executive Board meeting) has complained that they
perceive any conflict of interest between Jaffe's ethics counselor
duties and her service as Chapter President. Since it is claimed
that the Executive Board members who accused Jaffe were biased in
favor of Bernsen, the undersigned searched the record for
complaints by employees other than the two executive board
members, but found none.
B. Government ethics programs including the PBGC
program.
1. Requirements
In accordance with Federal law the Ethics in Government
Act of 1978 and government-wide regulations of the Office
of Government Ethics (hereafter called OGE), 5 C.F.R.
2600 et seq., PBGC maintains an ethics program to educate
all employees of their responsibilities under the Standards
of Ethical Conduct for Employees of the Executive Branch
(hereafter called Standards or Standards of Conduct) 5
C.F.R. 2635, and to make certain "determinations" under
the Standards. PBGC's ethics program is supervised by its
Designated Agency Ethics Official (hereafter called DAEO),
General Counsel James J. Keightley. The DAEO is assisted
by an Alternate Agency Ethics Official (hereafter called
(AAEO), Jay Resnick, who acts as DAEO in the DAEO's
absence. A third individual, Associate General Counsel
Philip R. Hertz, also has delegated authority to make
ethics "determinations" under the Standards. Keightley,
Resnick and Hertz, as the "agency designees," 5 C.F.R.
2635.102(b), are the only persons with authority to make
ethics determinations ("to make any determination, give any
approval or to take any other action required or permitted
by [the Standards of Conduct] with respect to another
employee.") See 5 C.F.R. 2635.102(b). They are assisted
in ethics work by a group of ethics counselors, but these
ethics counselors have not been delegated authority to make
any determinations under the Standards. Thus, for example,
an ethics counselor can assist Keightley, Hertz or Resnick
in determining whether, pursuant to 5 C.F.R. 2635.605(b),
to authorize an employee who is seeking employment, to work
on a matter affecting a pros-pective employer; however, the
decision to authorize such an activity is reserved to the
"agency designees" (Keightley,
Hertz and Resnick).
Attorneys and paralegals at PBGC may volunteer to be
ethics counselors. If accepted, they are then assigned
ethics duties collateral to their other work. In October
1994, the Ethics Counselors included Jaffe, Jeff Altenburg,
Bruce Campbell, Ray Forster, David Kemps, Liz King, Lelia
Williams and Roxanne Seig. While serving as an ethics
counselor, Jaffe has also been a Chapter steward, Vice
President and President, Altenburg and former Counselor Dan
Schofield stewards, Resnick a union member, and Forster and
Kemps LMR attorneys. Whatever privilege protects employees
confiding with union represen-tatives generally, applies
also to employees who talk to union representatives such as
Jaffe, Altenburg or Schofield in their union representative
capacity.
Counselors' position descriptions and performance
standards are identical to those of other attorneys. They
are evaluated on all work performed, including their ethics
duties. Counselors usually spend between 15 and 25% of
their official duty time on ethics matters. Counselors are
not paid differently from other PBGC employees. Counselors
receive ethics counselor training from OGE, from PBGC, and
through the circulation of materials distributed by OGE.
For example, they are provided manuals on the review of
financial disclosure reports. They attend ethics
conferences sponsored by OGE, and also discuss ethics
questions and advice among themselves, with Resnick and
Hertz, and with OGE.
The counselors must apply the ethics Standards. Thus,
while they are valued for their judgment, they are not
"free agents" and cannot make ethics "determinations" under
the Standards or otherwise authorize or approve any action
requiring approval under the Standards. Because ethics
violations and discipline are not in their purview,
counselors receive no training in investigation of possible
ethics violations, discipline of employees, or taking
"corrective action" for ethics violations. The counselors
were told they were not and would not be the "ethics
police." However, counselors, like all Federal employees,
have a duty to disclose waste, fraud, abuse and corruption
to appropriate authorities. 5 C.F.R. 2635.101(b)(11).
Jaffe, while acting as an ethics counselor, discovered
through an inquiry by one employee that another (departing)
employee had violated an ethics requirement. She properly
reported that violation to a senior ethics official, who
referred the matter to the Inspector General.
2. Training PBGC employees
Ethics Counselors' duties include training PBGC employees on
the Standards of Ethical Conduct for Employees of the Executive
Branch. 5 C.F.R. 2635 and 2638.701. They train new employees
about ethics and also conduct annual ethics training for about
half of the agency's employees, stressing at all times the
importance of seeing an ethics counselor for guidance before
taking any possibly improper action. Thus, new employees receive
at their initial PBGC job orientation, copies of the "all
employees" memorandum on "New Standards of Ethical Conduct for
Employees of the Federal Government" and the OGE publication
"Standards of Ethical Conduct for Employees of the Executive
Branch." These documents and the introductory orientation program
alert employees to their ethical responsibilities. They are then
given a list of ethics counselors to contact for any questions.
Employees also receive occasional "all employee" memos on ethics
issues, which identify the ethics counselors. Finally, employees
are told during their training that by obtaining ethics advice
prior to engaging in conduct, the employee may obtain certain
immunity pursuant to 5 C.F.R. 2635.107(b) if it turns out,
contrary to the counselor's advice, that the conduct was improper.
3. Responding to inquiries
Counselors receive telephone, electronic or in-person
inquiries from employees on numerous areas including potential
conflicts of interest and waivers, post-employment restric-tions,
outside employment requests, seeking employment restrictions, and
Hatch Act. The counselors gather the significant facts, research
and discuss the situations with OGE, other sources, other
counselors, Resnick or Hertz, and then formulate a recommendation.
The counselor either gets formal written approval from Resnick or
Hertz, or as the counselor becomes more experienced, may respond
directly to the inquiry, copying Resnick or Hertz for their
review. As noted above, employees may not be disciplined if they
act in good faith based upon the advice of a counselor given after
full disclosure. 5 C.F.R. 2635.107(b).
4. Review of financial disclosure forms
Counselors' duties also currently include the first level
review of financial disclosure reports, Forms 450 and 278. The
counselor reviews the forms for completeness, obtains additional
information from the filer if needed, drafts letters informing
filers of potential conflicts of interest between the filer's
financial interests and PBGC case duties, and then recommends
approval of the disclosure form and memorandum by Resnick or
Hertz. The counselors cannot approve the disclosure forms or
conflict memorandums themselves.
5. Determinations
As noted in the "determinations" memorandum under
2635.102(b) ethics determinations concerning Federal employees
may be made only by the "Agency designees" -- Keightley, Hertz and
Resnick. Areas of inquiry include gifts, waivers of disqualifying
financial interests, authorizations to participate in matters
despite conflicting financial interests or seeking employment with
an employer involved in a matter, and permission to serve as an
expert witness in cases. While requests for authorization and
other "determinations" may come into the counselors, and the
counselors may develop the facts necessary for the determination,
they lack authority to make the required determination. It is
clear that only the "agency designees," -- Keightley, Hertz and
Resnick -- can make such determinations.
6. Outside employment requests
Ethics Counselors assist employees in drafting requests for
approval of outside employment, when these requests are required
under PBGC's ethics regulation, 29 C.F.R. 2602.8. Counselors,
again, cannot approve the requests. No employees have grieved
denials of approval (and the record contains no evidence that
approval has ever been denied) for outside employment, although
employees can grieve a denial under the collective bargaining
agreement.
C. Jaffe's specific duties and responsibilities as an
ethics counselor
Jaffe started work as a staff attorney at Respondent
PBGC around September 1990. Jaffe volunteered for ethics
counselor duties and has performed those duties since about
April 1991. Approximately 25 percent of her work time is
spent on ethics work, including all the major functions of
counseling, financial disclosure reporting and training.
It should be noted that in all aspects of the ethics
duties, a counselor may be involved with nonbargaining unit
as well as bargaining unit employees.
The most frequent ethics work done by Jaffe appears to
be counseling employees and providing ad hoc responses to
employee inquiries concerning ethics regulations.
Concerning that part of her ethics duties, Jaffe testified
that she receives approximately one ethics-related
telephone inquiry every day. These inquiries may involve
relatively simple issues, e.g., whether an employee may go
to lunch with a particular person, or a more complicated
one such as outside employment requests or whether an
employee may work on a particular matter in which they have
a financial interest. Typically Jaffe provides an E-mail
response to the employee to confirm the telephone
conversation and copy the same E-mail message to her
supervisor, Resnick. If additional guidance has been
omitted by Jaffe, Resnick will either remind her to provide
such additional guidance to the employee or simply write
the employee himself.
Jaffe reviews both SF-450's and SF-278's. SF-450's are
due on October 31 each year and she reviews approximately
50 per year. Typically, Jaffe spends approximately 5 hours
per week reviewing these SF-450's. If the employee does
have a financial interest in one of the entities which PBGC
regulates, a memorandum is sent to that employee from the
ethics counselor advising the employee that they may not
participate in PBGC cases affecting those entities. While
there are fewer SF-278 filers, the reporting requirements
are more extensive and as such the review process can be
much more time-consuming. Currently, SF-278's are reviewed
by ethics counselors in the Spring of each year (May 15).
With respect to the exercise of training responsibi-
lities, Jaffe is involved in conducting training classes as
well as preparing and disseminating informational memoranda
and articles. Jaffe trains employees on the OGE Standards
of Ethical Conduct, the criminal provisions of 18 U.S.C.
203, 205, 207 and 208 as well as Hatch Act requirements.
Jaffe does this once for a portion of PBGC employees and
also provides a brief training session to new employees as
part of their new employees' orientation (which could occur
as often as four times per year). The record discloses
that Jaffe drafts informational memoranda, such as the one
authored by her on February 8, 1994, addressed to all PBGC
employees concerning "The Hatch Act Reform Amendments of
1993." This particular memorandum contained, inter alia, a
section regarding "Prohibited Activities" which provided,
as follows:
PBGC employees may not:
use official authority or influence for the
purpose of interfering with or affecting the
result of an election;
knowingly solicit, accept, or receive a political
contribution from any person, unless: 1) that
person is a member of the same federal labor
organization or federal employee organization as
the employee; 2) that person is not a subordinate
of the employee; and 3) the contribution is for
the multi candidate political committee of the
labor or employee
organization to which both the employee and person
belong;
run for the nomination or as a candidate for
election to a partisan political office; (footnote
omitted) or
knowingly solicit or discourage the participation
in any political activity of any person who: 1)
has an application for any contract, ruling,
license, permit, or certificate pending with PBGC;
or 2) is the subject of a participant in an
ongoing audit, investigation, or enforcement
action being carried out by the PBGC.
* * *
This memorandum gives only an overview of the new
law. Whether an activity is permitted likely,
will depend on the facts of the particular
situation. Therefore, since a violation of the
Hatch Act may result in removal from your
position, you should consult with an ethics
official before engaging in any partisan political
activities. If you have any questions, call Holli
Beckerman Jaffe at extension 3952, or the Office
of Special Counsel, the agency charged with
administering the Hatch Act, at 653-8944.
(Emphasis added)
In September 1995, Jaffe also prepared an article for the
agency's "In Box" newsletter entitled "Permissible,
Prohibited Political Activities Under Hatch Act" which
covered the same subject matter.
On March 4, 1992, Jaffe in her role as ethics counselor
also sent a memorandum, through Resnick and Hertz to five
other PBGC managers concerning "Regulation on Stock
Acquisition and Holding." The memorandum provided as
follows:
Attached is "Law Firm Policies Regarding Insider
Trading and Confidentiality," published in the
November 1991 issue of The Business Lawyer. We
are distributing it to give you some ideas on how
law firms are dealing with the problem of inside
information. Although it is not perfectly
analogous to our situation, we believe it is good
background information for our March 10, 1992,
meeting where we will consider a regulation to
prohibit the acquisition and/or holding of stock
by all or some PBGC employees.
On March 23, 1992, Jaffe sent a similar memorandum to
the same PBGC managers entitled, "Synopsis of Inside
Information
Regulation Meeting." The opening paragraph of this
memorandum provided as follows:
There is concern that PBGC employees who have
access to inside information may use the
information to acquire or sell stocks, bonds and
other financial instruments, or that the access to
such information may create the appearance of
insider trading. As you know, such dealings would
violate securities law in the former case, 15
U.S.C. 78u-1 et seq. (1988), and agency ethics
regulations in the latter, 29 C.F.R. 2602.6(a)
(1991). On March 10, 1992, Jim Wolbarsht, Steve
Faherty, Andrea Schneider, Phil Hertz, Jay Resnick
and I met to discuss this topic and what steps the
agency may take to prevent violations and/or
appearance problems. (Emphasis added)
I see no policy making role that Jaffe played in connection
with this memorandum.
D. Jaffe's responsibilities as NTEU Chapter 211 President
The NTEU is the exclusive representative of a
bargaining unit about 400 professional and nonprofessional
employees at Respondent PBGC. There are about 40-50
attorneys in the bargaining unit. Chapter 211 is an agent
of NTEU for purposes of representing bargaining unit
employees at PBGC. The current collective bargaining
agreement has been in effect since October 12, 1995. The
prior collective bargaining agreement had been in effect
since February 28, 1991 through October 1995.
Prior to October 1994, when she was elected Chapter
President, Jaffe served as a steward and as both an
appointed and elected vice president for Chapter 211.
Thus, in March 1992, she was appointed to fill the unexpired term
of a union vice-president. Thereafter in October 1992, she was
elected to a new term as vice president -- this was the same
election at which Bernsen was elected president.
During her tenure as vice president, Bernsen, as already
noted, assigned Jaffe two cases to handle as steward because of
ethics expertise. The record discloses that Jaffe is not the
only ethics counselor who has acted in a dual capacity as
an ethics counselor and Chapter official. In fact, it
seems to be a common occurrence. Thus, Altenburg was also
shown to have been asked by Chapter 211 to serve as a
Chapter steward on a case because of his ethics expertise.
Bernsen also expressed confidence in Jaffe by appointing her chief
negotiator. No employees complained about any conflict of
interest when Jaffe sought the office of President in the next
election, running against Bernsen. Strange as it seems, her
ethics duties were never an issue during the election campaign,
but became crucial only after she had vanquished Bernsen. Only
Bernsen, who did not testify, could tell us why this issue was
overlooked at that time or for that matter, why he saw no conflict
in Jaffe serving as she had prior to his losing to her in 1994.
Jaffe spends approximately 50 percent of her time
performing Chapter work and is responsible for the overall
management of the Union. Her duties, as defined in the
Union Constitution, include, as follows:
(1) To administer the affairs of Chapter 211 in
accordance with the provisions of the National
Constitution and Bylaws, and the Chapter Bylaws;
(2) To issue proper notice calling meetings of the
Chapter and the Executive Board pursuant to
Article IV, Section 1(B); Article V, Sections 2
and 3(A); Article VI, Sections 4 & 5; and Article
X,
Section 3, of these Bylaws, and preside at these
meetings;
(3) To appoint and dissolve all committees and
their chairperson, other than any standing
committees created pursuant to these Bylaws, and
to appoint all stewards and the Chief Steward;
(4) To represent and act as spokesperson for the
Chapter in all matters, and signing all documents
pertaining to the official business of the
Chapter; and
(5) To perform all other duties as are necessary
to protect and advance the interests of the
membership.
Since becoming President in October 1994, Jaffe has
negotiated various issues with PBGC. These have included
negotiating an increase in Metro Check (transit subsidy); a
new collective bargaining agreement; the reorganization of
PBGC's Information Resource Management Division (IRMD);
inclusion of PBGC Assistant General Counsel secretaries in
the bargaining unit as well as alternative work schedules
for such attorneys; including staff attorneys on the Legal
Management System Committee and the Office of General
Counsel Reorganization Committee. Two significant ethics-
related issues which Jaffe negotiated on behalf of the
Union included the "Standards of Conduct and Outside
Employment" provisions (Article 45) of the collective
bargaining agreement as well as a new outside employment
regulation.
The most recent collective bargaining agreement
negotiations at PBGC took place from April 1995 through
October 1995. While Jaffe was not the chief negotiator for
NTEU, she did participate in all the negotiating sessions.
During these negotiations, Article 45("Standards of
Conduct and Outside Employment") which had existed in the
previous contract was removed at the Union's request.
Also, since becoming Chapter President in October 1994,
Jaffe has negotiated, on behalf of the Union, a new outside
employment regulation with PBGC. These negotiations were
conducted one-on-one with her supervisor and Alternate
Agency Ethics Official Jay Resnick.
Finally, as President, Jaffe controls access to the
grievance-arbitration machinery in the parties' collective
bargaining agreement. This includes: responding to the
initial requests for representation from PBGC employees;
conducting an initial interview with such employees;
determining which steward has related expertise to handle
the matter; and ultimately making such a steward
assignment. On average, Jaffe conducts at least two
meetings per week with employees in her office as Chapter
President.
E. Ethics related discipline of Respondent PBGC employees
While the undersigned sees no real relevancy in citing
disciplinary actions of Respondent PBGC employees ad
nauseam, the parties apparently thought it useful so it is
included in the factual presentation although it does not
appear to the undersigned as either relevant or helpful.
Since 1991, the PBGC has taken action to discipline
employees on five separate occasions regarding their
alleged failure to adhere to the OGE prescribed standards
of ethical conduct. PBGC's authority to take such actions,
pursuant to the OGE regulations, was spelled out in the
February 1, 1993, Memorandum from Ethics Counselor Bruce
Campbell, provided in relevant part, as follows:
. . . The most important principle for employees
to keep in mind is that employment with PBGC is a
public trust requiring employees to place loyalty
to the Constitution, laws, and ethical principles
above private gain.
If an employee fails to comply with the Standards,
the PBGC may initiate appropriate corrective
and/or disciplinary action. Corrective actions
are any actions that the PBGC determines are
necessary to correct a past or continuing
violation of the Standards. Corrective actions
may require payment of moneys, change of
assignment, disqualification, divestiture,
termination of an activity, counseling, or the
creation of a diversified or blind trust.
5 C.F.R. 2635.102(e). Disciplinary actions that
PBGC may undertake include reprimand, suspension,
demotion and removal from position. 5 C.F.R.
2635.102(g). In addition to the administrative
actions that may be imposed by PBGC, an employee
may be subject to civil or criminal penalties,
including monetary fines, for violating any of the
criminal statutes. 5 C.F.R. 2635.106.
Consequently, employees should consult with one of
the PBGC's ethics counselors prior to engaging in
any questionable conduct. An employee may not be
discipline for acting in good faith reliance on
the advice of an ethics counselor, provided the
employee disclosed all relevant circumstances to
the counselor. 5 C.F.R. 2635.107(b). However,
good faith reliance on an ethics counselor's
advice is not a defense to criminal prosecution.
You should also note that discussions with PBGC's
ethics counselors are not protected by the
attorney-client privilege. Agency ethics
officials are required by statute to report
criminal violations to the PBGC's Office of
Inspector General. 5 C.F.R. 2635.106 and
2635.107
These PBGC disciplinary actions have included reprimands,
suspensions, demotions and removals. PBGC's disciplinary
process -- investigations, proposals, responses, decisions and
grievances -- is described in great detail in Articles 22 and 55
of the collective bargaining agreement. Ethics counselors are not
involved in any aspect of discipline. Grievances or discipline
involving ethics issues are a very rare occurrence. In this
regard, since 1991, only four PBGC employees have been disciplined
for misconduct which, inter alia, violated ethical standards. Of
these, one occurred in 1991, three years before Jaffe became
President, and was grieved but not arbitrated; another involved a
nonbargaining unit employee; a third involved an employee who
resigned and did not grieve the discipline; and the fourth settled
prior to the filing of a grievance. A fifth employee received a
proposal to suspend, but the employee resigned before contacting
the union to reply to or contest the proposal and before serving
the proposed suspension.
Discipline at PBGC, and specifically discipline in these
cases, is done by "LMR Team" attorneys, not ethics counselors, and
certainly not Jaffe. Ethics Counselors are not asked to, and do
not, assist or participate in any disciplinary investigations or
actions at PBGC. Moreover, no discipline of a PBGC employee has
resulted from an ethics counselor reviewing an employee's
financial disclosure form or from an ethics counselor responding
to an employee seeking counseling.
The undersigned finds little relevant connection between the
disciplinary actions cited and the conflict of interest
allegations herein.
F. Recusal policy of PBGC
As noted above, Respondent PBGC has several ethics
counselors at any given time. Jaffe and Altenburg are also
NTEU officers or stewards, as was Schofield; Forster also
does LMR work, as did Kemps.
Many ethics assignments arise from initial contacts by
employees with the counselor. If an employee calls an
ethics counselor about a matter on which the counselor is
already working on in their "union" or "management"
capacity, the counselor will recuse and advise the caller
to contact one of the other counselors. Written
assignments, such as review of a financial disclosure form,
come from Resnick or Hertz, often assigned based upon the
counselor's areas of expertise. If the assignment involves
a matter the counselor has previously encountered in their
union or LMR capacity, that counselor will disqualify
himself or herself and the matter will be reassigned to a
different ethics counselor. Jaffe stated that she
routinely clarifies whether an employee was coming to her
as a counselor or as a Chapter official. This common sense
approach to disqualification seems appropriate.
Similarly, Jaffe (or Altenburg or Schofield) may
theoretically receive a request for representation from a unit
employee in a matter she has learned of, or worked on, as an
ethics counselor. Jaffe testified she would recuse and refer the
employee to one of the other Chapter 211 officers or stewards.
Also Forster or former Ethics Counselor Kemps, if assigned an LMR
matter previously encountered as an ethics assignment, can ask
Resnick to reassign the LMR work to one of the several other LMR
attorneys. Since the counselors have become expert in the area of
real and apparent conflicts of interest, their responsible use of
the above-described recusal policy has insured that they do not
work on any matter improperly, and employees are aware of this
fact. Thus, it can be argued that because of the recusal policy
there have been no complaints about assignments or conflicts.
In addition, because employees acting in good faith on
ethics advice cannot be disciplined for those actions, it is
unlikely that an employee who received ethics advice from Jaffe
would later file a grievance involving that advice. It is
undisputed that Jaffe has never provided ethics advice which has
resulted in a grievance.
G. Labor Relations
Labor relations at PBGC are handled in PBGC's Human
Resources Department (HRD). See, e.g., the signature block
of the current collective bargaining agreement. LMR
attorneys, supervised on LMR matters primarily by Hertz and
Resnick, may be asked to assist HRD. Ethics Counselors are
not involved in labor relations, negotiations with the
Union, or discipline of employees at PBGC. Ethics
Counselors are located within O.C., not in HRD. Within the
strictures of the collective bargain-ing agreement, PBGC
departments have labor-management joint committees and
occasional discussions or negotiations with representatives
of the Chapter. For example, within Office of the General
Counsel (herein called) OGC, Hertz has negotiated or
discussed with the Chapter and with Jaffe a charter and
membership for a joint IRM committee, a charter for an OGC
organizational study team, and the membership of the OGC
training committee.
H. Office of Government Ethic's opinion
While not dispositive of the issue in this case, it
appears that Resnick and Jaffe, in considering how to
respond to this case sought guidance from United States
Office of Government Ethics (hereafter called OGE).
The OGE "is an executive branch agency which is responsible
for overseeing and providing guidance on Governmental ethics for
the Executive Branch, including the ethics programs of executive
departments and agencies." 5 C.F.R. 2600.101 (emphasis
added). The Ethics in Government Act "created OGE to provide
overall direction for executive branch policies designed to
prevent conflicts of interest and to help ensure high ethical
standards on the part of agency officials and employees."
(Emphasis added).
After Jaffe described her duties as an ethics counselor, her
duties as Chapter President and the Regional Director's concern in
this case to OGE, OGE opined that Jaffe's serving as Chapter
President while also serving as an Ethics Counselor did not either
(1) create an appearance problem violating 5 C.F.R.
2635.502, or (2) constitute a conflict of interest in violation of
5 U.S.C. 208. Jaffe's consulting with OGE was proper, since OGE
is the only Federal government agency with specific authority to
guide executive agencies regarding the prevention of conflicts of
interest, and because of OGE's extensive experience in this area.
Further, OGE has extensive experience and specific delegation to
decide such questions. OGE's conclusion that Jaffe serving as
both an ethics counselor and Chapter President did not present a
conflict or appearance of a conflict was particularly reassuring
to her. Additionally, OGE's conclusion on Jaffe's matter seemed
consistent with its prior audits of PBGC's ethics program where it
had previously no conflict or apparent conflict with Jaffe serving
as a union representative or officer while also serving as an
ethics counselor.
Additional Findings of Fact and Conclusions
When armies are mobilized and issues joined,
The man who is sorry over the fact will win.
From the Way of Lao-tzu, translated by Wing-Tsit Chan.
The General Counsel's theory of the case is that if an
objective standard is applied to the matter, Jaffe's dual
roles would create an apparent conflict of interest within
the meaning of section 7120(e) of the Statute when viewed
by a reasonable employee.
The Charging Party mistakenly sought to enlarge that
theory by contending that a real conflict of interest
existed and sought to present evidence in that regard. It
appears that this Charging Party, upon discovering that the
General Counsel did not intend to pursue its version of the
case, that a real conflict of interest existed, discarded
the General Counsel like a used paper plate after a company
picnic and proceeded on a frolic of his own thereby,
creating collateral issues, disregarding the processes of
the tribunal and generally prolonging this matter. In
short, when the record as a whole is reviewed, it becomes
clear that the Charging Party's participation in this
matter although far-reaching had no relevance.
The Authority's rules and regulations plainly do not
allow a charging party to participate in a hearing to the
extent this Charging Party attempted to involve himself in
the prosecution of this case. First, section 2428.18
requires the General Counsel rather than the Charging Party
to present evidence to support the complaint and to meet
its burden of proof by a preponderance of the evidence.
Second, section 2423.16 limits participation of any party
in a hearing to that determined by the administrative law
judge. The Charging Party declined to follow the court's
instructions with regard to offers of proof and rejected
exhibits, preferring it seems, to handle it his own way. I
hereby find that the materials contained in the rejected
exhibit file are irrelevant to this procedure and have not
been reviewed by me but are available for the Authority's
perusal, if it cares to examine these exhibits. Obviously,
the Charging Party either was not aware of or chose to
totally ignore the Authority's rules since it repeatedly
and unsuccessfully sought to amend the consolidated
complaint and expand the scope of the matter despite
continued admonishment that it could not do so and that it
would not be allowed to try this matter on a different
theory than that of the General Counsel. The General
Counsel's opening statement and his theory of the case both
indicate that he considered and rejected the argument that
a real conflict of interest existed in this matter. Case
law is quite clear that a charging party cannot seek to
amend a complaint where the General Counsel has final
authority over the investigation of charges and the
issuance of complaints. Kimtruss Corporation, 305 NLRB
7101 (1992); Metal Workers, International Association,
Local Union 28, AFL-CIO, 306 NLRB 9816 (1992); Manor Care
Center, 308 NLRB 884 (1992); Mark P. Turegon v. Federal
Labor Relations Authority, 677 F.2d 937 (D.C. Cir. 1982).
In this case, the Charging Party left no doubt that he
did not agree with the General Counsel's handling of the
case. His attempts to enlarge the complaint and to place
extraneous matter in the record reveals that he was in
pursuit of a private matter not included in this
consolidated complaint, thereby rendering his participation
totally irrelevant, redundant, or both. The Charging Party
clearly revealed his lack of understanding of the process
when he asserted, ". . . I have an obligation as an
attorney and as Charging Party to try to prove exactly what
the detailed or specific duties are." Without question,
the Charging Party's sought to use subpoenas for discovery
purposes, which is forbidden. Furthermore, Bernsen showed
his disdain for the process when he was so presumptuous as
to respond to the court's limiting of irrelevant
questioning that, " . . . since you know what the theory of
the case is and you know what evidence and proof is needed,
why don't we all leave and just have you question the
witness." The undersigned considers this statement as
disrespectful to the tribunal and an indication of the
unprofessional demeanor of Bernsen.
In addition, the Charging Party's voluminous subpoena
requests totally tracked those of the General Counsel and
proved to be investigatory or for irrelevant or
confidential information or for information which had
already been subpoenaed by the General Counsel, making them
repetitious, cumulative and a waste of time for everyone
concerned. Further, the Charging Party did not follow the
tribunals instruction regarding offers of proof and placing
matters in a rejected exhibit file. Since the undersigned
rejects the offer of proof as irrelevant, it is unnecessary
for me to do more than make sure that the Authority
receives the rejected matter to use as it deems
appropriate. Similiarily, its requests to amend the
complaint and to present evidence of its own on matters not
included in the complaint, which were denied again and
again, contributed to unduly prolonging what was nothing
more than a single issue case. Furthermore, the Charging
Party wasted more time in briefing a theory of the case
which had been repeatedly rejected, confirming that it had
no understanding of the rules and regulations of the
Authority. Thus, we have a case which should have been
heard in a fraction of the time required to finish this
matter.
Finally, hard feelings between the parties were
unnecessarily engendered, in my view, not only by the
Charging Party's failure to understand the process, but by
arrogant behavior and refusal to listen, and a "shot gun"
approach in attempting to change all of the rules to suit
the Charging Party's case. The efforts by the Charging
Party here were nothing more than feeble attempts to
compromise the prosecutorial independence of the General
Counsel and as readily seen, to convert the proceeding into
private litigation between itself and the Respondents.
While I recognize that Counsel for the Charging Party
has little experience in labor relations matters, it is
necessary to rebuke both Counsel for the Charging Party and
the Charging Party that preparation for trial requires more
than words and catch phrases, but involves some research
and preparation on relevant matters and issues and, more
importantly knowledge of the procedures of the agency or
tribunal before whom they are practicing. I saw little
evidence of that here. What was observed, however, was two
individuals, both the Charging Party and Counsel for the
Charging Party, who for reasons known only to themselves,
were determined to make this their own private case.
Unfortunately, the undersigned is obliged to conclude that
the Charging Party's participation shed no light on the
issues before me, and were no more than ineffective
attempts to turn this matter into a private party
litigation, thereby, severely compromising the
prosecutorial independence of the General Counsel. It is
found, therefore, that the Charging Party's efforts in this
case were not only disruptive but, of no consequence in
resolving the issues presented by the General Counsel.
All of my concern in this matter is not reserved for
the Charging Party and his Counsel, for I am unable to
completely ignore or to excuse the conduct of Respondents'
Counsel in this matter. Thus, the participation of
Respondents' Counsel cannot be said to have aided the
expeditious handling of the case. Experienced counsel for
both Respondents took the Charging Party's bait and helped
create a circus atmosphere among the three parties, which
this tribunal must have been expected to referee.
Fortunately, Counsel for the General Counsel remained on
the side line during these displays. Consequently, the
record is replete with pointless motions and senseless
subpoena requests which were no more than a waste of the
tribunal's time and therefore, irrelevant. Nor can I say
that their conduct was solely the result of or prompted by
the behavior of the Charging Party or his Counsel, for in
that regard we are all responsible for our own behavior.
In any event, it is my view, that there was nothing either
sagacious or benevolent about the party's tactics or
behavior and, their
personal animosity toward each other over this case, as
shown on this record, was nothing less than shameful.
The General Counsel had no evidence of a real conflict
of interest in this matter. Nor did it endorse the
Charging Party's view that a real conflict of interest
existed. After reviewing the record in this matter, the
undersigned reaches the conclusion that the alleged
violation of an apparent conflict of interest also has no
merit. It does in fact, appear to have been created by a
defeated and embarrassed office holder in reprisal for his
loss of the 1994 Chapter election. The record is replete
with assumptions, guesses and inaccuracies apparently
seeking to embarrass, humble and defeat an adversary more
than to resolve the alleged unfair labor practice. The
parties stumbled through this matter simply because it was
unclear what the particular violation was and what it would
take to prove by a preponderance of the evidence that an
actual violation of the Statute occurred.
The core of the General Counsel's case is that
examination of the two institutions involved leads to the
inevitable conclusion that Jaffe does serve divergent
interests and, therefore, her loyalties must be divided.
The record, in my opinion, discloses no duty that Jaffe now
performs as an ethics counselor, that she had not performed
prior to her election as President of Chapter 211 when she
was also serving as an ethics counselor. Furthermore, it
is uncontroverted that Bernsen, as Chapter President
utilized Jaffe in high union positions and took advantage
of her ethics experience to aid the Chapter despite his
present claim that Jaffe's now serving in both capacities
is an unfair labor practice. It was only after Jaffe
defeated him in the Chapter election that he noticed any
impediment to her ability to perform in both capacities.
Bernsen's only argument seems to be a hyper technical and
senseless one that the only Chapter officer with
responsibility for managing is the Chapter President
because Jaffe when elected President had already served in
several responsible union positions while she was employed
as an ethics counselor. Section 7120(e) does not only
prevent the management but, "does not authorize
participation in the management . . ." Jaffe was a Chapter
vice-president, a similar position to that held by the EEO
Counselor in Health and Human Services, 6 FLRA 30 (1981)
(herein called HHS) relied on by the Charging Party belies
this theory. The administrative law judge there found that
the vice presidency of the union was a major office, but
found no violation after considering the reasonableness of
the agency's action therein. HHS is discussed in greater
detail, infra, pp. 36-37. Additionally, it is
uncontroverted that Jaffe participated in other Chapter
roles in Bernsen's administration without so much as a word
about conflict of interest. Obviously, Bersnen did not
look "at the broad picture to see if [the] employee's
official position and [her] union positions are by nature
adversial," as he now implores the undersigned to do, when
he assigned Jaffe to work for the Chapter, taking advantage
of her ethics expertise. Or when he assigned her as chief
negotiator for the Chapter while she was an ethics
counselor. Most certainly Jaffe could have been perceived
as participating in the management of the Chapter when she
served as a vice president, but that is not the issue here.
In this regard, Bernsen argues that laches and clean hands
do not apply and, in that regard he is correct. What does
apply, however, is Bernsen's poor judgment if that was the
case, in not revealing his concern before his defeat, that
a conflict existed in Jaffe's dual roles. He can hardly
claim a "chilling" effect when it must be assumed that the
employees who voted in the election were aware of Jaffe's
dual roles. In my opinion, it is too late to lock the barn
door. Certainly a great deal of energy was spent on this
case by the Charging Party, when he suddenly realized,
after Jaffe had beaten him, that Jaffe's loyalty was
somewhere other than with Bernsen. It has often been
observed that no one is more zealous than a new convert and
Bernsen seems to confirm such a statement by the ardor of
his efforts to debunk Jaffe, seemingly because she
embarrassed him by winning the election. In all the
circumstances, Bernsen's claims simply reveal his inability
to accept the fact that he did lose the election to Jaffe
and, therefore, lacks objectivity. Specific reasons for
not finding a violation herein are set out as follows:
A. Jurisdiction
Authority jurisdiction in matters involving section
7120(e) of the Statute has long been established.
Department of Labor, 20 FLRA 296 (1985), AFGE Local 2513 v.
FLRA, 834 F.2d 174, 126 LRRM 3217 (D.C. Cir. 1987). The
Authority found that "[s]ection 7120(e) of the Statute
expressly prohibits management officials, supervisors and
confidential employees both from acting as a representative
of a labor organization and from participation in its
management." It then held that the agency violated section
7116(a)(1) and (3) by allowing its supervisors to vote in
an internal union election. Finally, it found that the
voting, constituted "participation in the management" of a
union and was "thereby proscribed by section 7120(e)" and,
therefore, amounted to "sponsorship, control or, at the
very least, assistance of the union in violation of section
7116(a)(3)." Although the D.C. Circuit reversed the
Authority, holding that it "simply [and wrongly] assumed
the propriety of its finding that voting is 'participation'
pursuant to section 7120 and amounts to an unfair labor
practice," it did not, however, disturb the Authority's
holding that section 7120(e) "expressly prohibits"
supervisors from participating in the management or
representation of a labor organization and that it would be
an unfair labor practice for an agency to permit them to do
so.
Both Respondent PBGC and Respondent NTEU assert that
the Assistant Secretary of Labor has either exclusive or
primary jurisdiction over the factual issues herein. Both
Respondents also maintain that the allegations here are
more properly presented to the Assistant Secretary of Labor
in the context
of the Charging Party's challenge to the 1994 Chapter 211
internal election.
The General Counsel, on the other hand, asserts that
this is precisely the type matter that the Authority should
hear.
As the Court stated in rejecting similar jurisdictional
arguments to those made in the case at bar:
[w]e do not view section 7120's role so narrowly.
Several sources belie the Union's position. By
its own terms, subsection (e), the subsection at
issue, reaches beyond section 7120 to embrace all
of Title VII of the CSRA. See, 5 U.S.C. 7120(e)
("[t]his chapter does not authorize participation
in management . . ." (emphasis added)). The
Union's neglect of this language violates the
canon of construction requiring that "'effect must
be given, if possible, to every word, clause and
sentence of a statute' so that no part will be
inoperative or superfluous, void or
insignificant." (citation omitted)
Furthermore, in failing to consider subsection
7120(e)'s reach, the Union ignores Congress'
general objectives in enacting the CSRA.
(Citation omitted) Title VII defines the whole of
labor-management and employee relations in the
federal sector. See 5 U.S.C. 7101-7135.
Toward the end of protecting federal employees'
rights and enforcing their obligations to the
government, at 7101(a), (b), Congress created the
FLRA. At 7105. It is clearly Congress' will
that "the Authority shall provide leadership in
establishing policies and guidance relating to
matters under this chapter." at 7105(a)(1)
(emphasis added). The Authority is further
charged with the duty to "take such other actions
as are necessary and appropriate to effectively
administer the provisions of this chapter."
7105(a)(2)(I) (emphasis added). These purposes
cannot be reconciled with the Union's construction
of section 7120, disallowing all FLRA
administration of that section.
The Court applied principles of statutory construction in
concluding that the Authority did properly exercise juris-
diction over the section 7120(e) matter. In the instant
case, the Assistant Secretary although allowing that
concurrent jurisdiction exists, expressly declined juris-
diction on the section 7120(e) deferred to the Authority
on the unfair labor practice allegations. I am therefore,
constrained to follow the Authority's direction in the
matter and, accordingly, find that the Authority has
jurisdiction to address the alleged unfair labor practices
herein.
B. Timeliness
The claims that the instant consolidated complaint is
time barred under section 7118 of the Statute is short of
the mark. Section 7118(a)(4)(A) bars the issuance of a complaint
where the alleged unfair labor practice occurred more than six
months before the filing of the charge. Here, the alleged unfair
labor practice involves an apparent conflict of interest . . .
with the duties of the employee because PBGC continued to assign
Jaffe the duties of an ethics counselor while she served as
Chapter President performing representa-tional duties which were
allegedly in conflict with her role as an ethics counselor.
Jaffe began as ethics counselor in April 1991 and there have
been no substantial changes in her ethics counselors' duties since
that time. She became Chapter President in October 1994. Prior
to October 1994 she was a Chapter Vice President from March 1992
to October 1994, chief negotiator for a period, and a Chapter
steward since late 1990. Bernsen made her chief negotiator and
asked her to represent the Chapter in at least two matters because
of her ethics expertise. Each of Jaffe's Chapter positions
involved participation in the management of, and acting as a
representative of a labor organization. The consolidated
complaint addresses only the period in which Jaffe acted as both
Chapter President and agency ethics counselor which period began
within six months of the filing of the charges. In these
circumstances, it is found that the instant matters are not time
barred under section 7118 of the Statute.
C. Did Respondents violate section 7120(e) by allowing
Jaffe to serve as an ethics counselor while she was
also president of the Chapter
1. The applicable legal Standard is that of
an objective reasonable person, with
knowledge of the facts
Section 7120(e) prohibits an employee from participating in
union management where participation creates an "apparent conflict
of interest." This prohibition is triggered where an objectively
reasonable person would view the facts as creating such a
conflict. See U.S. Dept. of Treasury, 41 FLRA 402, 414 (1991)
(conduct judged by reasonableness considering all circumstances);
Lane. v. Dept. of Army, 19 M.S.P.B. 161, 162 (1984) (applying
reasonable person standard). It is not triggered by subjective
suspicion. See United States v. Smith, 653 F.2d 126, 128 (4th
Cir. 1981) (rejecting a subjective belief standard under Code of
Professional Responsibility); accord FDIC v. United States Fire
Ins. Co., 50 F.3d 1304, 1316 (5th Cir. 1995) (rejecting "cynical
person" standard under same). The objectively reasonable person
is presumed to know the duties in question and related policies
and procedures. For example, in Merit Systems Protection Board v.
MSPB Professional Assn., 12 FLRA 137, 141 n.7 (1983). The
Authority stated:
[S]uch [apparent conflict] would only occur to parties
which might not understand [the duties of the
position]. Any such [apparent conflict] is further
dispelled by knowledge of the process by which Agency
management reviews the work product of [the employee].
Therefore, mistaken impressions or subjective beliefs about the
nature of the duties or governing rules and laws are irrelevant.
At best, an apparent conflict of interest is such a
nebulous term as to almost defy definition. Relying on the
American Heritage Dictionary, Apparent means 1. Readily
seen; open to view; visible. 2. Readily understood or
perceived; plain or obvious. Understandably, such an
apparent conflict was not readily seen in this case for as
already noted, two different bodies reviewed the situation
and both found that Jaffe's wearing both hats was not a
conflict of interest.
More recently, the Authority concluded that in order to
determine whether a section 7120(e) conflict or apparent conflict
of interest applies in a given case, Respondents' "conduct must be
judged by the reasonableness of its action in all the
circumstances." See Office of Chief Counsel, 41 FLRA 402 at 414,
quoting from HHS.
If one applies the unequivocally objective standard
articulated in these cases to Jaffe's situation, there would be no
apparent conflict of interest. Basically, the evidence that is
offered to show an apparent conflict in this case seems to come
from an intrinsic evaluation of the facts by both the General
Counsel and the Charging Party. Consequently, it is my view that
what the evidence in this case lacks is objectivity after knowing
all the facts. Especially since Jaffe's ethical conduct, like
that of all other federal employees, is governed by OGE's
Standards of Ethical Conduct for Employees of the Executive
Branch.
5 C.F.R 2635.502 states that an appearance of a conflict of
interest exists where:
circumstances would cause a reasonable person with
knowledge of the relevant facts to question (an
employee's) impartiality in the matter. . . .
It is my view that no "reasonable person with knowledge of
the reasonable facts," would conclude that Jaffe's occupying the
Chapter presidency and ethics counselor at the same time would
create an apparent conflict of interest. The essence of the
Charging Party's case went out the window with the section 7116(3)
violation that it withdrew. It is clear that the Charging Party
wants the Authority to find that Jaffe's was somehow under the
control of management and, therefore, could not effectively manage
the Chapter. Thus, there is no evidence that Jaffe or the Chapter
was dominated by PBGC management or that Jaffe acted in any
fashion to create such a conflict. Moreover, the General Counsel
found no reason to proceed on a theory that there was any
domination or a real conflict of interest.
Two things are worthy of note. It is impossible to say that
Jaffe had not have exercised management responsibilities for the
Chapter for sometime before she became Chapter President. It is
also not surprising that not even Bernsen contends that Jaffe was
merely a figure head vice president, for the record disclosed that
Jaffe did indeed exercise a great deal of responsibility as the
Chapter's vice president, as its chief negotiator for example.
Second, as previously discussed, ethics counselors are not
involved in investi-gating, processing or prosecuting
disciplinary actions. Hence, the only way Jaffe could have
a conflict regarding these cases is if these employees had
relied on her ethics advice to their disciplinary
detriment. The instant record does not show that this has
ever happened. Furthermore, it does not reveal the
possibility of this ever happening.
The Charging Party asserts that enforcement is an
essential component of the PBGC ethics program. There is
no doubt that this is so, however there is no evidence that
Jaffe has any enforcement responsibilities. Furthermore,
Jaffe's referral of employees to the Inspector General does
not endow her with enforcement powers.
Finally, Resnick testified, and OGE's government-wide
regulation promises, employees will not be disciplined when they
rely to their detriment on the advice of ethics counselors.
Finally, the record demonstrates that ethics counselors have long
exercised a practice of recusing themselves from issues which they
previously worked in other capacities. Jaffe testified and it is
undisputed that she never works an issue where the employee
involved had initially seen Jaffe in her union capacity. In that
capacity, she retains an absolute privilege of confidentiality.
Nor is there any showing that she ever would act as a
representative in a case where she had previously advised the
employee as an ethics counselor. Instead, she would refer the
employee to another steward. Jaffe added that if she is unsure
whether an employee is seeking her advice as an ethics counselor
or union representative, she will inquire as to the capacity
sought and remain true to the ethical responsibilities of the one
chosen.
Appearances often are deceiving,
Attributed to Aesop, The Wolf in Sheep's Clothing.
In my view, the General Counsel and the Charging Party
are on the wrong track in this case. The evidence
presented here is based on pure speculation that a possible
conflict of interest might exist and does not reveal any
readily apparent conflict. Thus, there is substantial
conjecture as to what might happen, if a certain set of
circumstances exists and not that a readily seen apparent
conflict exists. For example, the Charging Party
speculates that employees with a grievance might not have
confidence that Jaffe would handle their grievance conflict
free. However, because of the agency's recusal policy as
it is said to be practiced, such a situation could not
occur since Jaffe would be recuse herself in such a
situation. The mere fact that a remote chance exists that
the Chapter President would be involved in a certain
situation if a grievance were to be filed by a bargaining
unit employee does not establish an apparent conflict of
interest. Section 7120(e) seems to come into play where a
labor organization or an agency complains that an
employee's conduct either interfered or appeared to
interfere with that employees' ability to perform assigned
duties or created or appeared to create an impediment to
that employees management of the labor organization.
Furthermore, in my view 7120(e) has not been confined to
the President of a labor organization for certainly there
are other officers in the organization who take part its
management.
It is particularly worthy of note that both the
Respondent Union and Respondent Agency, each representing a
different side of the coin, found that Jaffe's performance
of her duties in one capacity does not create an apparent
conflict of interest in the other. Each therefore decided
to keep her in the position because they saw no apparent or
real conflict, based on what each thought constituted a
conflict or apparent conflict. Neither the General Counsel
nor the Charging Party offered any evidence to show that
the actions of these two Respondent's were not reasonable
in all the circumstances which would, in my opinion, be
necessary to establish by a preponderance of the evidence
that an apparent conflict of interest exists herein.
The Supreme Court made it clear that a "common sense"
approach in labor relations suggests that an employee can wear two
hats without there being divided loyalty. See Town & Country
Electric., Inc., 116 S.Ct. 450 (1995). The essence of the
arguments by the General Counsel and the Charging Party is that
Jaffe has the appearance of divided loyalty, and although the
undersigned does not think that the evidence supports such a
theory, the Court has said that in some circumstances there is
nothing wrong with wearing two hats. It is my opinion that this
would be one of those circumstances. To apply the "single minded
loyalty" standard suggested by the Charging Party in this matter
is totally impractical in the Federal sector. Under the single
minded view, it would be required that Federal unions serviced
only by full-time paid union staff probably would signal the end
to collective bargaining in the Federal sector where most union
officers are Federal employees. A holding such as proposed by the
General Counsel and Charging Party also would prevent an
inordinate number of bargaining unit employees from holding union
office, if they so desired. I do not believe that Congress had
this in mind when it passed section 7120(e). In Town & Country
Electric, supra, the Court upheld the NLRB's determination that
paid union organizers, sent to apply for employment with an
employer, to organize that employer's employees, were still
entitled to all protections under the National Labor Relations Act
as employees. In rejecting the employer's claim that the paid
organizers would have divided loyalties, both the Board and Court
noted that the organizer-employees would owe loyalty and duties to
the employer during work hours, like all other employees, but
could organize at other times:
[a] person may be the servant of two masters . . . at
one time as to one act, if the service to one does not
involve abandonment of the service to the other. . . .
Common sense suggests that as a worker goes about his
ordinary tasks during a working day . . . he or she
is subject to the control of the company employer,
whether or not the union also pays the worker. The
company, the worker, the union all expect that to be
so. And, that being so, that union and company
interests or control might sometimes differ should make
no difference.
Here too, Jaffe does her government work, including ethics
work, on her government time, and her representational work on her
"union" time. She either performs the duties of an ethics
counselor or duties of a Chapter official, but never performs both
roles in the same matter. Because she never acts as both, an
ethics counselor and a union official on the same matter, under
Town & Country, supra, there would be no divided loyalties'
problem. The Charging Party attempts to distinguish this matter
by contending that Jaffe's divided loyalty exists because she
continually performs labor-
relations and personnel type activity during working hours for
both the agency and the Chapter. The record does not support the
assertion that Jaffe performs personnel type work. Therefore, it
is rejected. Town & Country, supra, seems to put to rest the
arguments assuming a per se appearance of a conflict of interest
where an employee is simply working for "two masters." In this
regard, what was offered here was pure speculation which when held
up to a "common sense" or "reasonable person" standard would not
establish an appearance of a conflict of interest.
In addition, when Jaffe performs representational duties,
the same "privilege" which is claimed to shield Bernsen from his
duty to report certain matters, also shields Jaffe. Therefore,
her two roles do not conflict. I agree with the Respondents that
employees given even fewer facts than were disclosed in the
instant hearing, would understand that the ethics counselor's role
is simply to prevent violations of the Standards of Conduct and
criminal conflict of interest laws. Therefore, they would know
that after a Standard or law is violated, the matter is no longer
one for ethics counselors, but rather one that would be handled by
an appropriate representative such as the Inspector General.
Thus, because ethics counselors have no role to play in
disciplinary matters, and a reasonably informed objective employee
would understand that no apparent conflict of interest exists
simply because Jaffe is a Chapter President as well as an ethics
counselor. Finally, it cannot be convincingly argued that Jaffe
as Chapter President would automatically reject a grievance or
even not arbitrate a grievance because of ethics experience.
Since we are speculating it could be equally unconvincing to argue
that Jaffe could be more aggressive with an ethics related
grievance.
This same analysis serves as a rejoinder to the
Charging Party's assertion that Jaffe's dual role as an
ethics counselor has the appearance of compromising and
undermining her ability to negotiate vital workplace issues
such as outside employment regulations. It also answers
the Charging Party's concern that Respondent PBGC's main
defense is based upon its contention that its ethics
counselors do not have authority to make "determinations"
on behalf of the program. Nothing in the record shows that
Jaffe, as an employee is less responsive to her agency
employer's needs or has greater latitude to make ethics
related decisions than any other ethics counselor employed
by PBGC. In short, the Charging Party uses conjecture to
assume that a reasonable person will see Jaffe's role as
one rife with conflict. I do not agree with that
assessment of the matter.
With regard to whether Jaffe's Chapter President's
duties are incompatible with her duties as an ethics
counselor, the same analysis can be utilized. There is
absolutely no showing that Jaffe is any less responsive to
the needs of the labor organization or no illustrations
that the management of the labor organization would suffer
because of her duties as an ethics counselor.
While "incompatibility" was not specifically argued by
the parties, it must be assumed that the General Counsel is
seeking to establish that Jaffe's official duties are in
conflict with her Chapter duties simply because of some
incompatibility between those two duties. I find nothing
in 7120(e) requiring an agency to delve into the internal
matters of a union and make an independent determination
that the participation of one of its employees is
incompatible with the employee's duties. The Authority has
routinely dealt with cases containing section 7120(e) issues in an
unfair labor practice setting and has found that an agency may
violate the Statute by asserting that a conflict exists. U.S.
Department of the Treasury, Office of the Chief Counsel, Internal
Revenue Service, National Office, 41 FLRA 402 (1991); Department
of Health, Education and Welfare, 6 FLRA 628 (1981); Harry S.
Truman Memorial Veterans Hospital, Columbia, Missouri, 8 FLRA 42
(1982). Here the agency has never asserted that such a conflict
exists even though Jaffe and other agency attorneys in the past
served as ethics counselors while performing Chapter functions, as
well. In fact, Jaffe served in as ethics counselor while
negotiating a new collective bargaining agreement prior to the
election and, also performed other high profile Chapter functions
with apparent full support of the very individual who is now
complaining that a conflict exists. Unless Bernsen is so egoistic
that he thinks that only the Chapter President has any
responsibility for managing the Chapter, I frankly see no
substance to the claim that there is a conflict of interest here,
particularly since Bernsen used Jaffe in positions that he is now
claiming create a conflict. Accordingly, it is found that the two
positions involved here are not incompatible.
2. Ethics Counselor duties create no apparent conflict
of interest
The Charging Party claims that there is an expectation
of confidentiality for employees with respect to Chapter
211, and insofar as Jaffe must abide by two tenets of the
PBGC ethics program: (1)"that discussions with PBGC's
ethics counselors are not protected by the attorney-client
privilege; and (2) PBGC ethics officials, including Jaffe,
are required to report criminal violations to PBGC's Office
of Inspector General. Thus, the record shows that
employees seeking the confidence of a Chapter 211
representative concerning ethics-related issues could
reasonably infer that such confidence would not extend to
an ethics related matter. Employees who are properly informed
about the duties and actions of ethics counselors would know both
of the recusal policy and practice, and of the reality that Jaffe,
who does both duties to the best of her ability does not "wear two
hats" on the same matter at any time. The Charging Party also
argues that because of the adversarial relationship that exists
between a labor organization and executive agencies they will
inevitably clash in administering the agencies ethics program.
The record shows no likelihood that such would happen.
Jaffe's ethics duties have included: (1) review of
financial disclosure reports; (2) employee ethics training; and
(3) giving prospective ethics advice concerning conflicts of
interest, outside employment, and Hatch Act. None of these
duties create an apparent conflict of interest with her
participation in the management or acting as a representative of
Chapter 211.
Jaffe's review of financial disclosure reports does not
create an apparent conflict of interest. This work entails
reviewing reports for accuracy and sufficiency and cross-checking
reported interests against a list of pending agency cases. The
disclosure forms are then reviewed and approved by Resnick, Hertz
or Keightley. The Counselors' work is technical and requires no
consistent exercise of independent judgment. Indeed, all of this
review work must be approved by Resnick, Hertz or Keightley.
Without some consistent exercise of independent judgment, there
can be no apparent conflict of interest. U.S. Dept. of Treasury,
Office of Chief Counsel v. Natl. Treasury Employees Union, 32 FLRA
1255, 1260 (1988); MSPB, supra. Furthermore, no discipline at
PBGC has ever resulted from a Counselor's review of an employee's
disclosure form.
The Charging Party argues that the Chapter is
controlled by a President who has a concurrent stake in
administering PBGC's ethics program. The Charging Party
asserts that:
allowing an [e]thics [c]ounselor who[se] official
duties take precedence over her [Chapter]
responsibilities, the respondents disable the [Chapter}
from fully and fairly representing employees . . .
This claim appears to be a Machiavellian attempt to wrestle the
Chapter Presidency from Jaffe, by any means available. First, the
record revealed no area in which Jaffe administers the ethics
program for the Respondent PBGC. Additionally, there is not one
strand of evidence that Jaffe's official duties take precedence
over her Chapter responsibilities. The reality is that Jaffe is
employed as a GS-14 attorney who does ethics assignments as part
of her work. It is not even her principal work. She has no
"program" responsibilities, but reviews and makes recommendations
to a supervisor. The record also reveals that Jaffe's work in the
ethics area is limited to reviewing facts about proposed conduct
provided by employees, analyzing the facts under applicable ethics
rules, and formulating a response that supervisors such as
Resnick, Hertz, or Keightley must ultimately approve. While her
insight, analytical skill, experience, and research ability may be
valued, Jaffe does not make any ethics determinations or grant any
waivers; only designated agency ethics official's Resnick, Hertz,
or Keightley may do so. She exercises no independent judgment or
effective authority over employee conduct. Clearly, her
prospective ethics counseling does not constitute administering
the ethics program by any stretch of the imagination and
therefore, creates no apparent conflict. Treasury, supra, at 1260
(no apparent conflict absent independent judgment and effective
authority over employees).
Although the above duties define Jaffe's official role as an
ethics counselor, she did report a departing employee who had
engaged in conduct that apparently violated ethics rules based on
information received by her, as an ethics counselor from an
employee seeking prospective ethics advice from her about the same
type of ethical situation. After learning of the apparent
violation, Jaffe reported it to Hertz, who referred the matter to
the Inspector General. In my view, this is as close as Jaffe
comes to being in a conflict of interest situation. Respondent
PBGC denied that Jaffe's reporting this departing employee's abuse
created an apparent conflict of interest since the law requires
all employees of the agency to report fraud, waste, or abuse.
Respondent ignores that had Jaffe not been an ethics counselor she
would not have been privy to this information and therefore, not
in a position to pass it on. Even if Jaffe had not been an ethics
counselor, she still would have been under a duty to report the
apparent violation, but the fact is that her ethics duties were
indeed the reason that the information was made available to her.
While there is a perception of a conflict of interest, it is my
view that a reasonable person with all the facts could only
conclude that Jaffe felt the duty to report this breach as an
employee and that no apparent conflict would be found from this
situation.
The Charging Party contends that even the training
aspects of PBGC's ethics program implicate disciplinary
consequences. For example, the Notice of Proposed Removal
for Employee C was based in part upon an alleged violation
of 5 C.F.R. 2635.704 and 29 C.F.R. part 2602. In
addressing these allegations PBGC specifically relied upon
the fact that Employee C "had received training [on 5
C.F.R. 2635.704] on June 24, 1993" and that Employee C
had "acknowledged receiving and reading a copy of th[ese]
ethics rules when [Employee C] w[as] hired by PBGC." I see
no connection between training and discipline and therefore
reject that argument.
The Charging Party's arguments in this case are mis-leading,
particularly since for the most part they rely on the perception
that a conflict of interest exists. Bernsen's own use of Jaffe
undermines all the Charging Party and General Counsel's arguments
concerning employees' perceptions of Jaffe's dual roles. It is
important to note that no one (other than Bernsen) ever complained
to PBGC or NTEU of perceiving that Jaffe had an apparent conflict
of interest. One is forced to wonder how Jaffe, who for sometime
prior to the election served in a high level position in the
Chapter, where her expertise as an ethics counselor was used more
than once to benefit the Chapter can now be claimed to be in a
position where a conflict of interest exists. If anything, it
would appear that PBGC could be claiming that a conflict exists,
but it does not. Additionally, there is no complaint by NTEU
which no doubt would be equally interested in having Jaffe removed
from office, if an apparent conflict existed. Thus, the only
intervening event, after Bernsen took advantage of Jaffe's ethics
expertise, is that she defeated him in the 1994 election.
Apparently, this defeat opened Bernsen's eyes to the apparent
conflict of interest, but it also gave the undersigned a better
than average view of what the perception of the ordinary employee,
who had not been defeated by Jaffe in an election, might be.
Thus, when one uses Bernsen's old pre-defeat eyes, there must not
be an apparent conflict of interest or Bernsen would not have
assigned such duties to Jaffe. Furthermore, the record clearly
shows that other than Bernsen and two Executive Board cronies on
his "Progressive" slate, no other employees although aware of her
dual roles ever complained that Jaffe's ethics duties appeared to
conflict with her duties as President. Given Bernsen's obvious
bias, his views cannot rise to the reasonably objective standard
defined by the Authority in Treasury, supra. Accordingly, it is
my view that these perceptions of an apparent conflict of interest
were manufactured by a disgruntled and defeated office seeker and
have no validity upon which to base a violation of the Statute.
In all these circumstances, it is concluded that the General
Counsel has not established by a preponderance of the evidence
that either Respondent NTEU or Respondent PBGC acted unreasonably
in assessing the claim of an apparent conflict of interest here.
3. Discipline for violating ethical standards is
irrelevant to this matter
It was argued that PBGC's disciplinary actions during
the past five years shows that PBGC considers the ethical
conduct of its employees to be of paramount importance to
its ability to accomplish its regulatory mission. The
essence of this argument being that because violations of ethical
standards may be subjects for discipline, an apparent conflict is
created. However, when the recusal policy is considered,
no apparent conflict is evident. In the first place, such
discipline of PBGC employees is very rare (four in four years, of
which only two were eligible for and sought union represen-
tation). Second, ethics counselors are not involved in the
investigation of, or discipline proposed for violations of ethical
standards and, therefore have no role in the discip-line. In
part, due to this rarity, there is no apparent conflict. Lastly,
where a bargaining unit employee is involved, it is uncontradicted
that Jaffe would recuse herself. Finally, even where an employee
actually investigated bargaining unit members on occasion, the
Authority held that no apparent conflict of interest arose due to
the rarity of investigations. U.S. Office of Personnel
Management, 48 FLRA 1228, 1235 (1993). Thus, the rarity of such
cases at PBGC was clearly established on the record. Other than
to establish the frequency of discipline for ethics violations,
the undersigned sees little connection between the discipline and
how it relates to a conflict or apparent conflict of interest in
this case.
The Charging Party also argues that the recusal policy
does nothing to diminish the appearance of a conflict of
interest. Rather, it is aimed solely at the actual
conflict. According to the Charging Party, even though
Jaffe might initially recuse herself in a recusal
situation, based upon her referral of a case to the
appropriate authorities, her continued presence as Chapter
President would have a continued "chilling effect" upon
employees seeking representation through the Chapter. I do
not agree. Even if such a situation was not rare, it is
doubtful that an apparent conflict of interest would exist.
It is uncontroverted that Jaffe never works on the same matter
in her union capacity and as an ethics counselor. The mere fact
that the potential for a conflict might exist if PBGC did not
follow its recusal policy does elevate the matter to an apparent
conflict of interest. Clearly a conflict exists each time an
attorney takes a retainer. That such potential exists by no means
suggests that an attorney never take a case, it means only that
the attorney must take reasonable steps to avoid the conflict.
Obviously, the recusal policy here was designed as such a step.
Deciding whether this policy works effectively is an issue that
this forum need not undertake. Section 7120(e) does not speak of
"potential" conflicts. Therefore, it must be found that the
apparition of potential conflicts between Jaffe's dual roles is
irrelevant under section 7120(e) of the Statute.
4. Even under HHS, Jaffe's situation is not an apparent
conflict of interest requiring remedial action by the
Authority
As noted previously, the Charging Party insists throughout
that this case is controlled by HHS. I disagree. In my opinion,
even if the holding in that case could be applied here, Jaffe
would not be prohibited under 7120(e) from holding union office
while serving as an ethics counselor or vice-versa. In fact, she
would at least have a choice of retaining one position or the
other if that case were to be applied here. In HHS no violation
of section 7106(a)(1) and (2) was found where the agency
terminated the appointment of an employee as EEO Counselor upon
the employee's election to the position of Chapter Vice President
because of its opinion that holding the two positions created a
conflict of interest situation. The Authority did not find a
conflict of interest or apparent conflict of interest, and did not
say that the agency was required to terminate the appointment.
Relying on earlier case law under Executive Order 11491, as
amended, it found instead that the agency might believe the
employee would no longer be perceived as impartial in EEO
counselor duties, and could terminate the assignment.
Unlike that case, as already stated, the agency here
examined the situation by looking at the performance of its ethics
counselors for a number of years and could not help but observe
that ethics counselors for some time had served in dual
capacities; sought independent determinations from OGE; examined
its various checks and balances such as its recusal policy, and
determined that no apparent conflict of interest or loss of
impartiality requiring the removal of Jaffe as an ethics counselor
from that duty simply because she was involved in management of
the Union. In my view, this was a reasonable action by the agency
particularly in circumstances where a charging party asserts that
a conflict does exist. Indeed, had it removed Jaffe for that
reason it would have been subject to the identical unfair labor
practice complaint that the agency in HHS suffered. Finally, the
HHS theory of a violation was that under section 7120(e) the
agency could not require that an EEO counselor refrain from
engaging in the protected activity of holding a union office.
Thus, HHS is a case where an employee was forced to choose between
the Union and the agency. Similiarily, Respondent NTEU
examined Jaffes' dual roles and found no conflict of interest.
Thus, the General Counsel did not show that either of the
Respondent's acted unreasonably in finding that no apparent
conflict of interest existed. Nor does the undersigned find any
unreasonableness in their actions. Clearly neither Respondent
found it necessary to force Jaffe to choose between the two
positions.
5. OGE expressed no disapproval of Jaffe's duties
While the findings of another agency are not a substitute
for the Authority's judgment in its particular area of expertise,
it is note worthy that Jaffe sought an opinion from OGE concerning
whether an "apparent conflict of interest" existed. It is
uncontradicted that Jaffe disclosed both her duties as ethics
counselor and as Chapter President, her ability to recuse herself
and refers persons elsewhere for assistance and that OGE advised
her that the situation neither (1) created an appearance of a
conflict of interest that would violate 5 C.F.R. 2635.502, nor
(2) constituted a conflict of interest in violation of 5 U.S.C.
208. OGE clearly has the responsibility under 5 C.F.R. 2638.501
to develop rules and regulations pertaining to conflicts of
interest and could even instruct PBGC to cease assigning Jaffe
ethics counselor duties, but it did not.
Nor did it find fault with this arrangement when it audited
PBGC's ethics program. As noted, OGE is the Government agency
specifically charged with "responsibility to oversee and provide
guidance on Government ethics for the Executive Branch." Under
the Ethics in Government Act, OGE is the Government agency vested
with responsibility "to provide overall direction for Executive
branch policies designed to prevent conflicts of interest and to
help insure high ethical standards on the part of agency officers
and employees." 5 C.F.R. 2600.100. Given its many years of
experience analyzing and advising agencies regarding conflicts of
interest and apparent conflicts of interest, its view that there
is no appearance of a conflict should be accorded great weight and
given deference. Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984). In sum, the fact that OGE
is aware of and had no objection to Jaffe's serving both as ethics
counselor and Chapter President is further evidence that her
duties do not create an apparent conflict of interest within the
meaning of section 7120(e) of the Statute.
Based on all of the foregoing, it is found that the
record does not establish by a preponderance of the
evidence that an apparent conflict of interest was created
by Jaffe's serving simultaneously as an ethics counselor
for the agency while she also served a Chapter President.
Accordingly, it is found that section 7120(e) of the
Statute has not been violated and that neither Respondent
National Treasury Employees Union nor Respondent Pension
Benefit Guarantee Corporation violated the Statute, as
alleged. Accordingly, it is recommended that the
consolidated complaint in WA-CO-50300 and WA-CA-50302
should be dismissed.
_____________________________
ELI NASH, JR.
Administrative Law Judge
Dated: August 6, 1996
Washington, DC
FOOTNOTES FOR THE AUTHORITY:
(If blank, the
decision does not have footnotes.)
1. Section 7120(e) provides:
This chapter does not authorize participation in the manageMent of a labor organization or acting as a representative of a labor organization by a management official, a supervisor, or a confidential employee, except as specifically provided in this chapter, or by an employee if the participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee.
2. The General Counsel makes two separate arguments in this regard. First, the Judge considered Jaffe's activities as a chapter official (steward, vice-president, etc.) and ethics counselor prior to Jaffe being elected chapter president. These activities occurred more than 6 months prior to the filing of the charges. Second, the Judge considered Bernsen's post-complaint activities (distributing fliers accusing Jaffe of misconduct and having his supporters on the chapter's executive Board challenge Jaffe). The former established that Jaffe had performed for years as both a union official and ethics counselor without objection; the latter demonstrated Bernsen's motives vis-a-vis Jaffe.
3. If, on the other hand, OGE had opined that there was an apparent conflict here and/or if there had been numerous complaints from Agency employees who were concerned or confused over Jaffe's dual responsibilities, it would have been equally appropriate for the Judge to have taken this subjective evidence into consideration in applying an objective, reasonable person standard.
4. In HEW the employee was removed from the EEO Counselor position two months after being installed as union vice-president 6 FLRA at 637, so there was no opportunity to either analyze whether the dual positions would lead to complaints or confusion among employees or to obtain the Equal Employment Opportunity Commission's views concerning this matter. Here, however, as noted earlier, Agency employees had ample time to complain about the appearance of conflict complaints, but did not, and the OGE opined that there was not an apparent conflict.
5. The briefs supporting and opposing exceptions to the Judge's recommended decision extend to some 400 pages. We decline to participate in this prolix process and instead attempt to be as succinct as possible in addressing the bona fide exceptions raised in this case.
6. Indeed, the Judge's frustration was not limited to the Charging Party as the Judge criticized the manner in which the Agency and Union handled their respective cases as well. Judge's decision at 21-22.
FOOTNOTES FOR THE ALJ DECISIONS:
(If blank,
the decision does not have footnotes.)
1. Jaffe, technically can be called an "ethics official" but, is more correctly simply an ethics counselor.
2. Several motions were taken under advisement and some subpoena requests were deferred pending the decision in this matter. After careful review of the motions and subpoena requests and in light of the decision in this matter, all motions and subpoena requests not specifically granted during the course of the hearing are all hereby denied, in their entirety.
3. Respondent PBGC's request for special permission to file a reply brief is denied.
4. Section 7116(a)(3) and (5) allegations alleged in the charge were withdrawn by the Charging Party prior to the hearing.
5. Bernsen apparently filed a challenge to Jaffe's serving as a delegate at an NTEU convention, alleging that she had a conflict of interest. It is undisputed that the convention committee found no conflict and, therefore seated Jaffe.
6. Bernsen also filed other unfair labor practice charges alleging improper activity by PBGC, Jaffe and NTEU towards himself and a PBGC employee Noisette Smith. He persisted in trying to investigate and argue that matter in the instant hearing. When the matter was deemed irrelevant by the undersigned, his Counsel sought to amend the consolidated complaint to include a section 7116(a)(3) violation although forewarned that he could not do so.
7. Ethics Counselors could be, but at PBGC are not generally, called Deputy Ethics Officials.
8. This regulation sunsets on August 7, 1996. PBGC management has decided not to publish a supplemental regulation that would require employees to obtain approval before engaging in outside employment.
9. Article 45 ("Standards of Conduct and Outside Employment") provided as follows:
Section 45.1
It is the responsibility of each employee to: (1) know and be aware of the PBGC's regulations on the Responsibility and Ethical Conduct of Employees (29 CFR Part 2602) and on Post-Employment Conflicts of Interest (29 CFR Part 2604); and (2) adhere to the standards of conduct and rules contained therein.
Section 45.2
A. Employees are required to notify and secure approval from the Employer prior to entering into outside employment.
"Outside Employment" includes among others:
(1) Self-employment,
(2) Employment with or without compensation.
B. The Employer agrees to apply its authority to control outside employment by bargaining unit employees in a fair and equitable manner.
C. The Employer will approve or disapprove any written request of an employee to engage in outside employment within five (5) workdays of the Employer's receipt of the request, unless the employment involves the application of professional skills utilized by the employee in his/her regular duties. In such instances, a decision will be issued within (15) workdays.
D. The request to work outside of PBGC will only be denied by the Employer for just cause.
Section 45.3
Employees shall not engage in any outside employment or similar type outside activities requiring advance approval, with or without compensation which:
A. interferes with the efficient performance of their official duties;
B. might bring discredit on or cause unfavorable and justifiable criticism of the Government;
C. might reasonably result in a conflict of interest, or apparent conflict of interest, with official duties and responsibilities; or
D. violates any law, Executive Order, or OPM rule or regulation.
Section 45.4
If an employee wishes to dispute the Employer's rejection of a request to engage in outside employment, the employee may file a special grievance directly with the Executive Director. This grievance must be filed within ten (10) workdays of the Employer's rejection of the request. It will be treated exactly as if it has been processed through this Agreement's grievance procedure, and is at the final step of the procedure. If the Employer and employee are unable to satisfactorily adjust the grievance in a meeting, the Employer will forward to the employee, within the time limits prescribed for the final step of the grievance procedure, a letter containing all the reasons why it is rejecting the outside employment request. Thereafter, the Union may invoke arbitration over this issue.
Section 45.5
A. If the Employer has approved an outside employment request and later rejects it for appropriate reasons, and the employee wishes to dispute the Employer's decision, the employee will be permitted to remain in the outside job until an arbitrator has issued a decision pursuant to Section 45.4 and the Arbitration procedure contained in Article 56 or the Expedited Arbitration procedure contained in Article 57.
B. If the employee does not wish to dispute the Employer's rejection of outside employment where the employee has already begun the employment, the employee will have up to fourteen (14) calendar days to withdraw from the job.
C. In situations where the continued employment would result in serious problems of public confidence in the Employer's integrity, the employee may be required to cease employment at the time of the Employer's decision.
Section 45.6
If a grievance is processed pursuant to this Article, upon written request, the Employer will provide the Union with sanitized copies of all outside employment requests submitted to it after the effective date of this Agreement.
10. While there was considerable semantic debate over whether the PBGC ethics program is involved in "enforcement" the regulations and circumstances support the finding that there is indeed an enforcement aspect here. The American Heritage Dictionary defines "enforce" as follows:
1. To compel observance of or obedience to: enforce a regulation. 2. To impose (specified action or behavior); compel . . . 3. To give force to; stress; underline; reinforce.
It appears that all the activities of the PBGC ethics program, including counseling, financial disclosure reporting, and training, have some "enforcement" aspect as discussed infra. For example, the financial disclosure reporting has the fundamental purpose of "compelling observance" of the Title 18 conflict of interest provisions.
11. Contrary to Charging Party's frequent assertions and fliers, Ethics Counselors are not the "ethics police"; they do not investigate to ferret out violators, require "corrective action" or even participate in investigations or discipline of employees.
12. The American Heritage Dictionary, 1976 Ed. defines administer: 1. To have charge of; direct; manage. This is simply one example of the Charging Party's shading of words to create grey areas. Using such terminology in such a devious way certainly detracts not only from its case, but from the General Counsel's as well.
13. "Standard. An employee has a duty to protect and con-serve Government property and shall not use such property, or allow its use, for other than authorized purposes." 5 C.F.R. § 2635.704(a).
14. PBGC is an agency experienced in addressing recusal, conflicts of interest and apparent conflict of interest issues in other contexts. These issues do not only arise in the context of ethics counselors. They may arise in connection with PBGC attorneys assigned to cases in which their former law firms represent a party, or with outside counsel retained by PBGC in ERISA cases. PBGC employs numerous outside counsel and sees these disputes arise so frequently that it has assigned two of the counselors, again under the supervision of Resnick and Hertz, to view outside counsel conflict matters.
15. It is noted that the administrative law judge in GSA, 8 A/SLMR 1386, cited by Judge Dowd did not find a section 19(a)(2) violation by discrimination in regard to "hiring, tenure or promotion. . . ."