[ v59 p994 ]
59 FLRA No. 175
IFPTE, LOCAL 75
LIBRARY OF CONGRESS
May 28, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Stephen B. Forman filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement (CBA) and §§ 7102 and 7116 of the Statute when it reassigned work pertaining to collective bargaining and union recognition for the Department of Homeland Security (DHS) from the Union President to another employee. For the following reasons, we deny the exceptions.
II. Background and Arbitrator's Award
The Congressional Research Service (CRS) is the exclusive research arm of the United States Congress and is a department of the Library of Congress (Agency). The Union, which is affiliated with the International Federation of Professional and Technical Engineers (IFPTE), represents professional and nonprofessional employees of the Agency. The grievant is president of the Union and a specialist in labor economics.
On about June 12, 2002, the Deputy Assistant Director (DAD) asked the Union President if he would respond to requests received by the Division on matters pertaining to collective bargaining and union recognition [ v59 p995 ] issues related to proposals to form the DHS. The Union President agreed to do so and produced several documents. Later, the Associate Director for Congressional Affairs (ADCA) and Counselor to the Director of the CRS learned that the Union President had produced some work for Congress dealing with collective bargaining issues concerning the DHS and immediately concluded that the Union President's involvement in this topic "presented a serious risk of apparent conflict of interest." [n1] Award at 4. The ADCA decided to assign this work to another analyst and asked the DAD to inform the Union President.
Subsequently, the DAD informed the Union President that he was no longer to work on, or to respond to, requests concerning collective bargaining and union negotiation issues relating to the DHS. The Union President was told that because he was the President "his work on collective bargaining and union issues relating to Homeland Security could give the appearance of a conflict of interest." Id. at 4-5. Later, the CRS prepared a memorandum on the subject of homeland security, one section of which contained the Union President's work. However, his name was not mentioned as a contributor of the work.
Thereafter, a grievance was filed which was not resolved and the following agreed-upon issue was submitted to arbitration:
(1) Whether the [Agency's] decision not to have [the Union President] perform additional work on the subject of collective bargaining and union recognition issues related to proposals to form a new [F]ederal [DHS] violated:
(a) Article IV of the collective bargaining agreement [CBA],
(b) Article VI of the [CBA],
(c) 5 USC § 7102, or
(d) 5 USC § 7116; and
(2) Whether the [Agency's] decision regarding [the Union President's] work assignment discriminated against [him] as President of the [Union].
Id. at 2-3. [n2]
Before the Arbitrator, the Union asserted that the Agency's action with respect to the Union President constituted discrimination in violation of Articles IV, Section 2 and VI, Section I of the CBA; and §§ 7102 and 7116 of the Statute. The Union also asserted that the Agency's justification for discriminating against the Union President--apparent conflict of interest--was unsupported. The Agency argued that Library of Congress Regulations (LCR) 2023-1, Section 2 and 2023-7, Section 3, prohibit "both actual and apparent conflicts of interest." [n3] Id. at 7. As support for the legality of its regulations, the Agency cited Keeffe v. Library of Congress, 777 F.2d 1573 (D.C. Cir. 1985) (Keeffe), and also cited § 7120(e) of the Statute as support for its authority to bar activities that create an apparent conflict of interest. [n4] The Agency argued that its decision, that an apparent conflict of interest existed, was reasonable.
The Arbitrator found that the Agency regulations and § 7120(e) "clearly allow[ed] the [Agency] to prohibit outside activity, including participation in the activities of a labor organization, if such participation presents an apparent conflict of interest with the employee's official duties." Id. at 11. The Arbitrator noted that in Keeffe the agency's regulations were found constitutional. The Arbitrator noted that the Union had argued that Keeffe was inapposite because the employee in that case was espousing positions of the Democratic Party, while the grievant here has not espoused a position on the creation of the DHS.
Noting the parties' arguments, the Arbitrator stated that the "crux of the instant matter is whether the [Agency's] judgment that [the grievant's] position as [Union] President created an apparent conflict of interest with work assignments on collective bargaining and union negotiation issues concerning Homeland [S]ecurity was reasonable." Id. at 12-13. The Arbitrator disagreed with the Union's assertion that the issue should be analyzed under Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), stating that Letterkenny was an "unfair labor practice proceeding, not a collective [ v59 p996 ] bargaining arbitration." Id. at 13 n.5. The Arbitrator stated that even if Letterkenny was applied, the issue would be whether there was a legitimate justification for the Agency's action, which is equivalent to whether it was reasonable for the Agency to conclude that there was an apparent conflict of interest. The Arbitrator found that under either analysis the Agency's action was reasonable.
In so concluding, the Arbitrator found that Agency procedures for reviewing an analyst's work did not change the outcome. The Arbitrator found nothing in the grievant's work that appeared biased, partisan or non-objective. Id. at 13. Rather, according to the Arbitrator, the Agency reassigned the Union President "because of an apparent conflict, not an actual conflict." Id. The Arbitrator agreed with the Agency's statement that "[t]he appearance of a conflict of interest does not require any intentional action by the person with the apparent conflict and does not reflect negatively upon the person with the apparent conflict." Id. The Arbitrator found that an apparent conflict "cannot be cured by the employee performing his work in a conscientious manner because an apparent conflict is not so much what's produced in the work, but what a reasonable person, knowing of the other activity, might believe as to whether there was a conflict." Id.
The Arbitrator next found that while the products the Union President authored were not "readily subject to the introduction of bias, the overall nature of the collective bargaining and union negotiation issues concerning Homeland Security that [the grievant's] products related to was a matter of great partisanship, a `white hot' issue in Congress." Id. at 14. The Arbitrator noted that the court in Keeffe acknowledged "the [Agency's] interest is in guaranteeing the impartiality and the appearance of impartiality projected by the signed work and the professional conduct of its . . . [a]nalysts." Id. (quoting Keeffe, 777 F.2d at 1579-80).
The Arbitrator further found there was no credible evidence that the work reassignment had any chilling or adverse effect on either the Union President or Union members. The Arbitrator also found that even though the Union President was not involved in an IFPTE release criticizing the effect the proposed legislation would have on Union members' rights, the Union's affiliation with the IFPTE, included in its business communications, reinforced the appearance of a conflict of interest. The Arbitrator recognized that the Agency did not know of the press release until after it decided to reassign the Union President and, therefore, the press release could not be used to support the reasonableness of the Agency's decision. However, based on other evidence, the Arbitrator found the Agency's decision that an apparent conflict of interest existed was reasonable. The Arbitrator noted the court's statement in Keeffe that "`[w]e will not disturb the reasonable judgment of an agency of Congress as to the meaning of its own regulations." Award at 16 (quoting Keeffe, 777 F.2d at 1578). Similarly, the Arbitrator determined that he would not "overturn what appears to be a reasonable decision by the [Agency] that work by [the Union President] . . . on collective bargaining and union negotiation issues relating to Homeland Security, created the appearance of an apparent conflict of interest." Id. at 16.
Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
1. Preliminary Matter
On March 5, 2004, the Union, pursuant to §§ 2429.5 and 2429.26 of the Authority's Regulations, filed a motion seeking permission to file a reply brief to the Agency's opposition together with the reply brief. The Union asserts that the reply is necessitated by the Agency's claim that many of the exceptions present issues that could have been, but were not presented to the Arbitrator and therefore, should be dismissed under § 2429.5. According to the Union, these claims raise serious questions with respect to issues central to the Union's appeal and, therefore, it requests permission to address those claims. In its reply brief, the Union contends that the record demonstrates that the issues raised in the Agency's opposition were either properly presented before the Arbitrator or arose from the issuance of the award and therefore could not have been presented to the Arbitrator.
The Union asserts that the award is contrary to law. In particular, the Union asserts that the Arbitrator erred by failing to apply the "standard of reasonableness" established by the Authority for resolving conflict of interest issues. Exceptions at 2. According to the Union, the Arbitrator applied a "per se rule" rather than a reasonableness standard. Id. at 6. Citing NTEU, 53 FLRA 1541 (1998) (NTEU), petition for review denied, 203 F.3d 51 (D.C. Cir. 1999), the Union contends that the Authority has held that "apparent conflicts of interest under § 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." Id. at 1547-48. The Union contends that the Authority's standard [ v59 p997 ] for deciding conflict of interest issues "directly contradicts the Arbitrator's faulty analysis and underlines his error in ignoring the [Agency's] review process which is at the heart of its maintenance of its . . . reputation for objectivity[.]" Exceptions at 10.
The Union contends that the Arbitrator erred by ruling that § 7120(e) of the Statute and LCRs 2023-1 and 2023-7 allowed the Agency to disqualify the Union President from performing his official duties because of an apparent conflict of interest. The Union asserts that the Union President exercises no management functions, no duties involving oversight or supervision of employee, no investigation or other activities, and has no confidential relationships that would be compromised by Union activities.
The Union asserts that the Arbitrator incorrectly relied on LCR 2023-7--"Political Activity of Library of Congress Employees." Id. at 19. The Union contends that this regulation is applicable to political activities of employees and does not set out general conflict of interest or appearances of conflict of interest standards for outside, non-political activities, or duties and affiliations with outside organizations of employee analysts. According to the Union, LCR 2023-7, Section 3 A(4) allows employees "to be a member or officer of and participate in the political activities of a civic, community, social, labor, or professional organization . . . to the extent that such participation is consistent with one's employment." Id. The Union argues that there is no allegation that the Union President engaged in any political activities of an outside organization.
The Union also asserts that LCR 2023-1 contains no prohibition proscribing conflicts of interest and thus provides no basis for determining that such a conflict of interest arises for an analyst merely by association with a union. The Union contends that because there is no precedent which the Arbitrator cites in interpreting LRC 2023-1 with regard to outside, nonpolitical affiliations, the standards of conduct regulations for other Federal employees must be examined. According to the Union, LRC 2023-1 recites the general ethical standards of conduct that have been promulgated by the Executive Branch of Government. The Union refers to an Office of Government Ethics (OGE) Regulation, 5 C.F.R. § 2635.802, and argues that engaging in union activity or being an active member or officer in a federal union is not prohibited by any law or regulation. [n5] The Union asserts that even under the OGE's "most stringent" regulation, 5 C.F.R. § 2635.501, the Union President would not be reassigned from performing the subject work. Id. at 28.
The Union argues for similar reasons that reliance on Keeffe is misplaced because that case involved partisan political activity. According to the Union, attempts to extend a ban on partisan political activities to non-political union activities have been rejected by Federal courts. In support, the Union cites Blaylock v. United States Merit Protection Board, 851 F.2d 1348 (11th Cir. 1988) (Blaylock). Also relying on Blaylock, the Union asserts that courts have found that if statutory or regulatory restrictions on partisan political activities were to cover general conduct by union presidents, such attempts would implicate questions involving the First Amendment.
The Union contends that the Arbitrator erred by striking the testimony of the Union President concerning the chilling effect of the termination of his work assignment on Union members. According to the Union, during his direct testimony the Union President testified that in his efforts to recruit unit members to run for office in a recent election several members told him that because of what happened to him they were not interested in doing so. The Union asserts that on cross-examination the Union President refused to reveal the names of these members and as a result the Arbitrator granted the Agency's motion to strike his testimony on the subject, despite his desire to protect the members' confidentiality.
Citing United States Dep't of the Treasury, Customs Service, Wash., D.C., 38 FLRA 1300, 1308-09 (1991) (Customs), the Union asserts that "absent extraordinary need," it is an interference under § 7116(a)(1) to require a union representative to disclose, under threat of disciplinary action, the identity of statements made by an employee to a union representative. Exceptions at 32. The Union asserts that the Arbitrator erred by failing to find a violation of the CBA and § 7116(a)(1) in the reassignment of the Union President's duties. The Union also asserts that even without the Union President's testimony concerning the effect of the Agency`s action on other members, Authority law makes it clear that neither anti-union motivation nor actual adverse effects need to be shown to find a § 7116(a)(1) violation.
1. Preliminary Matter
Citing § 2429.5 of the Authority Regulations, the Agency asserts that the following arguments presented [ v59 p998 ] in the exceptions should not be considered by the Authority because they were not raised before the Arbitrator. The list follows: (1) Authority precedent for resolving conflict of interest issues shows that the Arbitrator erred in reaching his conclusion and requires a finding that the Agency acted unlawfully in reassigning the work in question; (2) the inclusion of CRS analysts as employees covered by the Statute necessarily means there cannot be any actual or apparent conflict of interest between their official duties and management of a union; (3) LCRs 2023-1 and 2023-7 do not allow work to be reassigned to prevent an apparent conflict of interest between an employee's union management/representation and official duties; (4) conflicts of interest for employees must be evaluated under standards applicable to Executive branch employees (including the Hatch Act and law interpreting it including Blaylock) and no actual or apparent conflict can exist if the Agency has an internal review process; (5) the Agency regulations should be interpreted in the same manner as OGE regulations, 5 C.F.R. §§ 2635.501 and 2635.802; and (6) the Arbitrator improperly considered the controversial nature of the issue and failed to infer a chilling effect of the Agency's action on the Union President or other members.
The Agency contends that the Union has not established that the award is contrary to law or regulation or that it is deficient on other grounds similar to those applied by Federal courts. The Agency asserts that the Union mischaracterizes the award. According to the Agency, the Arbitrator followed applicable Authority law and did not establish a per se rule. The Agency contends that the Union President was not sanctioned or disciplined for his work on the DHS topic and continues representing the Union.
The Agency asserts that there is nothing in the award from which one reasonably could infer that an analyst's assistance to the Union creates a conflict of interest. Rather, according to the Agency, the Arbitrator "limited his decision to the apparent conflict that arose from the President doing research and analysis on the issue of the role of unions in the [DHS]" and not from a conflict of an analyst's assistance to the Union. Opposition at 7. Further, noting the Union's argument that because the CRS has a thorough review process of analysts' work, no reasonable person could have any concern about the Union President's work on the DHS project, the Agency asserts that there is no evidence that the constituencies of the CRS have this level of knowledge of its internal review process.
The Agency also argues that the cases cited by the Union involving § 7120(e) are inapposite. Additionally, the Agency states that in NTEU, the Authority gave substantial deference to the agency's determination that no conflict or apparent conflict of interest existed. In this case, the Agency asserts that the Arbitrator, like the Authority in NTEU, found to be reasonable based on all the circumstances the Agency's determination that an apparent conflict of interest did exist.
The Agency asserts that the Arbitrator properly applied Keeffe. The Agency disputes the Union's assertion that the extension of Keeffe beyond partisan political activities is unlawful or unconstitutional and asserts Blaylock is inapposite.
The Agency asserts that the Arbitrator correctly interpreted LCRs 2023-1 and 2023-7. The Agency disagrees with the Union's contention that these regulations do not allow the Agency to reassign work from the Union President to avoid an apparent conflict of interest. The Agency asserts that LCR 2023-7 "appl[ies] to actual and apparent conflicts of interests between membership and management of a labor organization . . . and official duties . . .." Id. at 13. Citing parts of LRC 2023-1, the Agency asserts that the Union's contention that this regulation contains no "language proscribing `conflicts of interest' or `appearances of conflicts of interest" is not "accurate." Id.
As to the Union's contention that LCR 2023-1 should be interpreted the same as the OGE regulations, the Agency asserts that the OGE regulations do not apply to a legislative branch agency. The Agency further asserts that the OGE provisions concern the standards of conduct for conflicts of interest based on an employee's personal financial interests in the outcome of a matter, while this case involves an apparent conflict of interest under § 7120(e) and Agency regulations, which are not limited to conflicts resulting from financial interests. The Agency also contends that the Union did not raise the OGE argument before the Arbitrator and, therefore, the Authority should not consider these arguments.
The Agency contends that the Arbitrator properly: (1) found that evidence of the Agency's internal review of the Union President's work product did not affect the outcome because the issue was an apparent rather than an actual conflict of interest; and (2) considered the degree of public interest and scrutiny of the Union President's work assignment.
The Agency asserts that the Arbitrator properly excluded evidence of alleged chilling or adverse effect [ v59 p999 ] on Union members whom the Union President declined to identify. The Agency disagrees with the Union's assertion that the Arbitrator "ascertained" that in "`fact members had told [the Union President] that they would be fearful of being a union officer because they might not be given an assignment[.]'" Opposition at 21 (quoting exceptions at 31). According to the Agency, the Arbitrator did not make such a finding. The Agency asserts that the Union President "testified to that effect but his testimony was stricken because he would not give specifics, thereby depriving the [Agency] of its due process right of cross-examination." Id.
The Agency contends that the cases cited by the Union do not support its position that the Union President's testimony should have been accepted because, unlike in those cases, the Union President here was not threatened with discipline for declining to name the individuals. Further, the Agency asserts that the work reassignment was lawful.
IV. Analysis and Conclusions
A. Preliminary Matter
The Authority's Regulations do not provide for the filing of supplemental submissions. However, § 2429.26 of the Authority's Regulations provides that the Authority may, in its discretion, grant leave to file "other documents" as deemed appropriate. See, e.g., AFGE, Local 2004, 55 FLRA 6, 9 (1998). Here, the Union's supplemental submission challenges the Agency claims, first raised in the opposition, that several Union exceptions are barred under § 2429.5 of the Authority Regulations because they were not raised before the Arbitrator. In these circumstances, we conclude that the Union has established sufficient reason for filing the supplemental submission. Cf. United States Dep't of the Treasury, U.S. Customs Service, El Paso, Tex., 52 FLRA 622, 624-25 (1996) (agency did not establish sufficient reasons for filing a supplemental submission). Therefore, we accept the submission.
With respect to the Agency's assertion that we should not consider six issues raised by the Union that are identified in Section IV. B.1. above, we find that except the issue identified as item 5, the exceptions present issues that the parties disputed at the arbitration hearing or arose from the Arbitrator's award and could not have been presented to the Arbitrator. Accordingly, we deny the Agency's request that these issues not be considered. See, e.g., United States Dep't of the Navy, Supervisor of Shipbuilding Conversion and Repair, Pascagoula, Miss., 57 FLRA 744, 745 (2002) (where an issue arises from the issuance of the award and could not have been presented to the arbitrator, it is not precluded by § 2429.5). As to the issue identified as item 5, which concerns the Union's reliance on OGE Regulations, 5 C.F.R. §§ 2635.501 and 2635.802 as evidence to challenge the Arbitrator's finding with respect LCRs 2023-1 and 2023-7, there is no indication in the record that the Union cited the OGE Regulations or asserted that they should be considered by the Arbitrator in interpreting the Agency regulations. As the Union's argument relying on OGE Regulations, 5 C.F.R. §§ 2635.501 and 2635.802, could have been, but was not raised before the Arbitrator, we grant the Agency's request and, therefore, have not considered this argument.
1. The Award Is Not Contrary to § 7120(e) of the Statute and Agency Regulations
The Union asserts that the Arbitrator erred by failing to apply the "standard of reasonableness" for resolving conflicts of interest issues under § 7120(e) of the Statute, and by failing to properly apply Agency regulations. Exceptions at 2.
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
Concerning § 7120(e), the appropriate standard for analyzing whether that provision has been violated is "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[.]" NTEU, 53 FLRA at 1549.
a. § 7120(e)
In this case, the grievant is the president of his local union, which is affiliated with IFPTE, and is employed by the CRS, the exclusive research arm of Congress. In supporting his decision that the Agency [ v59 p1000 ] acted reasonably in finding that an apparent conflict of interest existed, the Arbitrator found that the grievant would be preparing for Congress a work product addressing collective bargaining and union negotiation in the new DHS, a "`white hot'" issue of "great partisanship" in Congress in terms of whether collective bargaining and union negotiation should be permitted. Award at 14. In further support of his decision to find an apparent conflict of interest, the Arbitrator quoted one witness who described the CRS's need to be seen as impartial and unbiased as so important that "the future of the Service hinges on the continuation of that imprimatur of objectivity." Id. The Arbitrator also noted the judicially acknowledged CRS "interest is guaranteeing the impartiality and the appearance of impartiality" of its analysts such as the grievant as a part of his rationale for finding that an apparent conflict of interest was present. Id.
We conclude that the Arbitrator's finding of an apparent conflict of interest is consistent with the Authority's precedent interpreting and applying § 7120(e). Here the Agency properly views its mission as requiring it to be above criticism in terms of maintaining the objectivity of its personnel and its work product as it provides research and information to Congress. At the same time, as noted by the Arbitrator, this particular research work product and the personnel accomplishing it would be undergoing an even greater heightened scrutiny in terms of objectivity, i.e., the "partisanship" surrounding the issue as found by the Arbitrator would result in even greater than usual scrutiny of the disputed work product. In reviewing the Arbitrator's findings and the circumstances underlying those findings, we conclude that the "objectively reasonable person" standard in Bernsen would question the grievant's ability to perform his official duties while acting as a representative of a labor organization.
Consequently, the Union has not demonstrated that the Arbitrator failed to properly apply the standards for determining whether an employee has an apparent conflict of interest under § 7120(e).
b. Agency Regulations
The Authority follows the practice of the Federal courts and generally affords deference to an agency's interpretation of its own regulations, giving the interpretation "controlling weight unless it is plainly erroneous or inconsistent with the regulation." United States Dep't of Transportation, Federal Aviation Administration, 56 FLRA 627, 630 (2000) (FAA) (citing United States Dep't of Transportation, Federal Aviation Administration, 55 FLRA 797, 802 (1999) (quoting Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994)).
The Union contends that LRC 2023-1 contains no provision proscribing conflict of interest and thus provides no basis for determining that such a conflict of interest arises for an analyst merely by association with a union; and that LRC 2023-7 is applicable to political activities of employees and does not set out general conflict of interest or appearances of conflict of interest standards for outside, non-political activities, or duties and affiliations with outside organizations of employee analysts.
Section 1 of LRC 2023-1 states that "[t]his Regulation and those following state the [Agency's] policy concerning standards of conduct for [the Agency's] staff members and establish general guidelines to ensure that staff members will avoid conflicts of interest." Opposition, Attachment 1 at 1. Section 2 of this regulation provides, among other things, that staff members shall "avoid any action which might result in or create the appearance of . . . [c]ompromising independence or impartiality . . . [or a]ffecting adversely the confidence of the public in the integrity of the [Agency] or the Government." Award at 7-8 and Opposition, Attachment 1 at 1-2. Section 2023-7, Section 3 provides, in part that an employee has the right to be a member or officer of a labor organization "to the extent that such membership, office, or participation is consistent with law and does not interfere with official duties or give the appearance of a conflict of interest[.]" Id. at 8, Opposition, Attachment 2 at 2. This section also provides that the Agency "may prohibit or limit participation of an employee . . . in an activity . . . if participation in the activity would interfere with the efficient performance of official duties, or create a conflict or apparent conflict of interests." Id., Opposition, Attachment 2 at 3.
Although the Union claims that LRC 2023-7 only prohibits political activity and LRC 2023-1 contains no prohibition of conflicts of interest, we find that the regulations, described above, concern standards of conduct generally for Agency staff and establish guidelines to ensure that staff will avoid conflicts of interest with respect to "actions" that might result in or create the appearance of compromising independence or impartiality or affecting adversely the confidence of the public in the integrity of the Agency. The Arbitrator's interpretation of the regulations is not plainly erroneous nor inconsistent with the plain wording of these regulations. Therefore, we find that the Union has not demonstrated that the Arbitrator's interpretation and application of the regulations are erroneous. Also, concerning the Union's arguments with respect to the OGE regulations, for the [ v59 p1001 ] reasons stated above, these regulations were not considered. However, even if the regulations were considered, they would not be controlling because the OGE regulations apply to Executive Branch agencies and the Agency is a legislative branch agency. See 5 U.S.C. § 7301 and 5 C.F.R. § 2635.102(a).
The Union also has not demonstrated that the Arbitrator's reliance on Keeffe is misplaced. While that case concerned an analyst's political activities, Agency Regulations LRC 2023-1 and LRC 2023-7 were involved in the court's deliberations of whether these regulations governed Agency employees. Therefore, it was not improper for the Arbitrator to consider this case in deciding the instant grievance. Additionally, as Blaylock involved the Hatch Act and did not involve the Agency regulations, it is not controlling in this case.
Accordingly, the Union has not demonstrated that the Arbitrator erroneously interpreted and applied Agency regulations or law.
2. The Award Is Not Contrary to § 7116(a)(1) of the Statute and the Arbitrator Did Not Deny the Union a Fair Hearing
The Union asserts that the Arbitrator erred by failing to find a violation of § 7116(a)(1) of Statute with respect to the reassignment of the Union President's duties.
Section 7116(a)(1) of the Statute provides that it shall be an unfair labor practice for an agency to interfere with, restrain, or coerce any employee in the exercise of any right provided by the Statute. Section 7102 of the Statute sets forth certain employee rights including the right to form, join, or assist any labor organization freely and without fear of penalty or reprisal and that each employee shall be protected in the exercise of such right. Such right includes the right to act for a labor organization in the capacity of a representative. Also, the Authority has held that serving as a Union representative is "not without limitation[,]" under the Statute when such activity "would result in a conflict or apparent conflict of interest" under § 7120(e) of the Statute. United States Dep't of the Treasury, Office of the Chief Counsel, Internal Revenue Service, National Office, 41 FLRA 402, 413 (1991) (IRS).
In the circumstances presented in this case, the Agency's decision to reassign the Union President's work because of an apparent conflict of interest was reasonable within the meaning of § 7120(e) of the Statute. Therefore, the Agency was permitted to remove the work assignment to avoid an apparent conflict of interest under § 7120(e) of the Statute. As the Agency's decision to remove the work assignment was lawful under the Statute and as the Union contested only the removal of the work itself, and raised no issues regarding the manner in which the work was removed, we find that the Union has not demonstrated that the award as it concerns the removal of the work violates § 7116(a)(1) of the Statute.
The Union also contends that the Arbitrator erred by striking the testimony of the Union President concerning the chilling effect of his work assignment on Union members, and further that "absent extraordinary need" it is an interference under § 7116(a)(1) of the Statute to require a union representative to disclose, under threat of disciplinary action, the identity of statements made by an employee to a Union representative. The Union's contentions are construed as a claim that the Arbitrator denied it a fair hearing.
The Authority will find an award deficient if it is clear that an arbitrator failed to conduct a fair hearing by, for example, refusing to hear evidence which is pertinent and material or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 3615, 57 FLRA 19, 22 (2001); United States Dep't of Justice, Federal Bureau of Prisons, Federal Prison Camp, Allenwood, Pennsylvania, 35 FLRA 827, 829 (1990). An arbitrator has considerable latitude in the conduct of a hearing, however, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See, e.g., United States Dep't of the Army, Army Reserve Personnel, St. Louis, Missouri, 35 FLRA 1200, 1205 (1990). Also, disagreement with an arbitrator's evaluation of the evidence and testimony, including the determination of the weight to be accorded such evidence, provides no basis for finding the award deficient. See AFGE, Local 3295, 51 FLRA 27, 32 (1995).
The Union has not demonstrated that the Arbitrator acted improperly by striking the Union President's testimony so as to affect the fairness of the proceeding as a whole. The record evidence shows that in ruling on the motion to strike the Union's testimony the Arbitrator stated:
Even without striking . . . I must say that I would give it very little weight, if any, and so all striking has done is say I'm not even going to look at it any more.
Exceptions, Enclosure 4 (Transcript) at 108.
The Arbitrator's ruling on the motion shows that even if the Arbitrator had allowed the testimony the Arbitrator would have given little weight, if any to it. In this circumstance, the Union has not demonstrated that the Arbitrator's ruling prejudiced it or affected the fairness of the proceeding as a whole since the Arbitrator had already decided based on evidence in the record that he would have given little weight to the testimony. [ v59 p1002 ] Also, the Union's reliance on Customs provides no basis for finding the award deficient. Customs involved an unfair labor practice case where it was alleged that an agency violated § 7116(a)(1) of the Statute by threatening an employee, who was also a representative of a union, with disciplinary action if he did not provide information regarding the conduct of another unit employee, which the representative had acquired while engaged in protected activity. Unlike Customs, this case does not involve any threat or disciplinary action against the Union President or any employee for declining to provide the subject names. Moreover, § 7116(a)(1) of the Statute proscribes certain conduct of agencies and not the conduct of arbitrators.
As the Union has not demonstrated that the Arbitrator denied it a fair hearing, the Union has not established any basis to conclude that the Arbitrator violated § 7116(a)(1) of the Statute by striking the testimony of the Union President.
The Union's exceptions are denied.
Article IV, Section 2 of the CBA provides as follows:
The Library shall in no way restrain, interfere with, coerce or discriminate against designated representatives of the Association in the exercise of their right to serve as representatives for the purpose of collective bargaining, handling grievances and appeals, unfair labor practice charges, furthering effective labor-management relations and agreements on behalf of an employee or group of employees within the bargaining unit.
Article VI, Section 1 in relevant part states:
Each employee shall have the right, freely and without fear of penalty or reprisal, to form, join, and assist the Association or to refrain from any such activity, and each employee shall be protected in the exercise of this right. The right to assist the Association shall include participation in the management of the Association and acting for the Association in the capacity of an Association representative.
LOC Regulation 2023-1, Section 2 provides, in relevant part as follows:
[S]taff members shall avoid any action which might result in or create the appearance of . . . [c]ompromising independence or impartiality . . . [or] [a]ffecting adversely the confidence of the public in the integrity of the [Agency] or the Government.
Award at 7-8.
LOC Regulation 2023-7, Section 3 provides, in relevant part as follows:
A. Each employee retains the right to
4. Be a member or officer of [a] . . . labor, or professional organization . . . to the extent that such membership, office, or participation is consistent with law and does not interfere with official duties or give the appearance of a conflict of interest.
. . . .
B. The Library may prohibit or limit the participation of an employee . . . in an activity . . . if participation in the activity would interfere with the efficient performance of official duties, or create a conflict or apparent conflict of interests.
Award at 8 and Opposition, Attachment 2 at 3.
5 C.F.R. § 2635.802 provide as follows:
§ 2635.802 Conflicting outside employment and activities.
An employee shall not engage in outside employment or any other outside activity that conflicts with his official duties. An activity conflicts with an employee's official duties:
(a) If it is prohibited by statute or by an agency supplemental regulation; or
(b) If, under the standards set forth in §§ 2635.402 and 2635.502, it would require the employee's disqualification from matters so central or critical to the performance of his official duties that the employee's ability to perform the duties of his position would be materially impaired.
5 C.F.R. § 2635.501 provides as follows:
§ 2635.501 Overview.
(a) This subpart contains two provisions intended to ensure that an employee takes appropriate steps to avoid an appearance of loss of impartiality in the performance of his official duties. Under § 2635.502, unless he receives prior authorization, an employee should not participate in a particular matter involving specific parties which he knows is likely to affect the financial interests of a member of his household, or in which he knows a person with whom he has a covered relationship is or represents a party, if he determines that a reasonable person with knowledge of the relevant facts would question his impartiality in the matter.
Footnote # 1 for 59 FLRA No. 175 - Authority's Decision
The Arbitrator noted that as the Statute and the regulations cited by the parties used the term "apparent conflict of interest" and "appearance of a conflict of interest" interchangeably, he would also consider them interchangeable. Id. at 4 n.1.
Footnote # 2 for 59 FLRA No. 175 - Authority's Decision
Footnote # 3 for 59 FLRA No. 175 - Authority's Decision
Footnote # 4 for 59 FLRA No. 175 - Authority's Decision
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.
Footnote # 5 for 59 FLRA No. 175 - Authority's Decision