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U.S. Federal Labor Relations Authority

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[ v53 p1541 ]
The decision of the Authority follows:

                                             53 FLRA No. 138                              

                         WASHINGTON, D.C.




                        STUART E. BERNSEN
                         (Charging Party)




                        STUART E. BERNSEN
                         (Charging Party)



                        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
     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
     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
     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

     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
               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

     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
     V.   Order

     The complaint is dismissed.

                     UNITED STATES OF AMERICA
                   WASHINGTON, D.C.  20424-0001
                Charging Party/  
                Charging Party/
                      Case Nos.  WA-CO-50300
 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
                      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,
      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
      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
      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
      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
 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
      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
      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
 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
      Section 3, of these Bylaws, and preside at these
      (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
      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
      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
 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
 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
      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
      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
      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
 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
 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
               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
      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
      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
      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 
      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
 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

(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.

(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. . . ."