Stuart E. Bernsen v. FLRA, 203 F.3d 51 (D.C. Cir. Mar. 19, 1999) (table)

CASE BEING CONSIDERED FOR TREATMENT
PURSUANT TO RULE 34(j) OF THE GENERAL RULES

No. 98-1234

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________

STUART E. BERNSEN,
                    Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                    Respondent

and

PENSION BENEFIT GUARANTY CORPORATION,
                    Intervenor

             and

NATIONAL TREASURY EMPLOYEES UNION,
                    Intervenor
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY


            DAVID M. SMITH
              Solicitor

            WILLIAM R. TOBEY
              Deputy Solicitor

            JUDITH A. HAGLEY
              Attorney

            Federal Labor Relations Authority
            607 14th Street, N.W.
            Washington, D.C.  20424
            (202) 482-6620



CASE BEING CONSIDERED FOR TREATMENT
PURSUANT TO RULE 34(j) OF THE GENERAL RULES



CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

A.  Parties and amici
    Appearing below in the administrative proceeding before the Federal
    Labor Relations Authority (the Authority) were the National Treasury
    Employees Union ("NTEU" or "union"); Pension Benefit Guaranty
    Corporation ("PBGC" or "agency") and Stuart E. Bernsen.  Stuart E.
    Bernsen is the petitioner in this Court proceeding; the Authority is the
    respondent; PBGC and NTEU are the intervenors.

B.  Rulings under review
    The Authority issued its Decision And Order in National Treasury
    Employees Union and Pension Benefit Guaranty Corporation and Stuart E.
    Bernsen, Case Nos. WA-CO-50300 and WA-CA-50302 on March 11, 1998.
    The Authority's decision is reported at 53 FLRA (No. 138) 1541.

C.  Related Cases
    The case on review was not previously before this Court or any other
    court.  Counsel for the Authority is unaware of any cases pending before
    this Court that are related to this case within the meaning of Local
    Rule 28(a)(1).




TABLE OF CONTENTS

STATEMENT OF JURISDICTION  1

STATEMENT OF THE ISSUE  2

STATEMENT OF THE CASE  2

I.  Nature of the Case  2

II.  Statement of the Facts  3

A.  Background  3

B.  PBGC's Ethics Program  4

1.   Management of the program  4

2.  The role of ethics counselors  5

3.  The recusal policy  6

C.  The 1994 Union Election and Surrounding
    Circumstances  6

III.  Proceedings Below  8

STANDARD OF REVIEW  11

SUMMARY OF ARGUMENT  12

ARGUMENT  14

THE AUTHORITY PROPERLY DETERMINED THAT AN EMPLOYEE'S
SIMULTANEOUS SERVICE AS A UNION REPRESENTATIVE AND AN
AGENCY ETHICS COUNSELOR DOES NOT RESULT IN AN "APPARENT
CONFLICT OF INTEREST" UNDER SECTION 7120(E)  14

A.  The Authority Developed an Appropriate Standard
    for Determining If an Apparent Conflict of
    Interest Exists under Section 7120(e) of the
    Statute  15

1.  The Authority's standard is compatible with
    the structure of section 7120(e)  16

2.  The Authority's standard is consistent with
    Authority precedent  20

3.  The Authority's standard is comparable to
    federal conflict of interest analysis in
    other areas  23

B.  The Authority Properly Applied the Reasonable
    Person Standard to the Totality of the
    Circumstances in This Case  25

1.  Under the totality of the circumstances, an
    objectively reasonable person would not
    question Jaffe's ability to perform both as
    an ethics counselor and as a union official
    or representative  25

2.  Bernsen's arguments concerning potential
    conflicts are based on conjecture  29

CONCLUSION  31



ADDENDUM

Relevant portions of the Federal Service Labor-Management
  Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. II
  1996) and pertinent regulation    A-1



TABLE OF AUTHORITIES

*  In re Allied-Signal, Inc., 891 F.2d 967
    (1st Cir. 1989)   28

American Fed'n of Gov't Employees v. FLRA, 834 F.2d 174
    (D.C. Cir. 1987)   19, 30

American Fed'n of Gov't Employees, Local 2343 v. FLRA,
    144 F.3d 85 (D.C. Cir. 1998)   11

Bureau of Alcohol, Tobacco & Firearms v. FLRA,
    464 U.S. 89 (1983)   12

*  Chevron, U.S.A., Inc. v. Natural Resources Defense
    Council, Inc., 467 U.S. 837 (1984)   12, 17

Crandon v. United States, 494 U.S. 152 (1990)   26

Department of Justice, Immigration & Naturalization
    Serv. v. FLRA, 144 F.3d 90 (D.C. Cir. 1998)    15

EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984)   12

GSA v. FLRA, 86 F.3d 1185 (D.C. Cir. 1996)   16, 24

NLRB v. General Steel Erectors, Inc., 933 F.2d 568
    (7th Cir. 1991)   19

NLRB v. Town & Country Elec., Inc., 516 U.S. 85
    (1995)   19

Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769
    (D.C. Cir. 1988)   12

Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998)   12

United States v. Smith, 653 F.2d 126 (4th Cir. 1981)   24



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

Department of Health, Educ. & Welfare, 6 FLRA 628
    (1981)   10, 11, 22, 23

Harry S. Truman Mem'l Veterans Hosp., 8 FLRA 42
    (1982)   22

Local 3, Int'l Fed'n of Prof'l & Tech. Engineers
    & Naval Sea Sys. Command Detachment, 25 FLRA 714
    (1987)    22



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

*  Merit Sys. Protection Bd. & Merit Sys. Protection
    Bd. Prof'l Ass'n, 12 FLRA 137 (1983)   20, 21

*  U.S. Dep't of the Treasury, Office of the Chief
    Counsel, Internal Revenue Serv., Nat'l Office,
    41 FLRA 402 (1991)   20, 21



FEDERAL STATUTES

Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996)  1, 2
  5 U.S.C. § 7102   18, 22
  5 U.S.C. § 7103(a)(10)   16
  5 U.S.C. § 7103(a)(11)   16
  5 U.S.C. § 7103(a)(13)   16
  5 U.S.C. § 7105(a)(2)(G)  1
  5 U.S.C. § 7116(a)(1)   10
  5 U.S.C. § 7116(a)(2)   10
  5 U.S.C. § 7120   20
* 5 U.S.C. § 7120(e)   passim
  5 U.S.C. § 7123(a)   2
  5 U.S.C. § 7123(c)   11, 12
  5 U.S.C. § 7131   18
  5 U.S.C. § 208   8, 27
  5 U.S.C. § 706(2)(A)   12

  Ethics in Government Act of 1978, 5 U.S.C. App. (1994)   4



CODE OF FEDERAL REGULATIONS

  5 C.F.R. §§ 2600 et seq.  4
  5 C.F.R. § 2635.101(b)(11)   5
  5 C.F.R. § 2635.502   8, 23, 27



FEDERAL REGISTER

  57 Fed. Reg. 35,025   23, 24


*Cases or authorities chiefly relied upon are marked by asterisks.



GLOSSARY

AFGE v. FLRA  American Fed'n of Gov't Employees v. FLRA,
834 F.2d 174 (D.C. Cir. 1987)

ALJ      Administrative Law Judge

Bernsen  Stuart Bernsen

DOL      Department of Labor

Harry S.  Harry S. Truman Mem'l Veterans Hosp., 8 FLRA 42
Truman (1982)

HEW      Department of Health, Educ. & Welfare, 6 FLRA 628 (1981)

MSPB      Merit Sys. Protection Bd. & Merit Sys. Protection
Bd. Prof'l Ass'n, 12 FLRA 137 (1983)

Naval Sea  Local 3, Int'l Fed'n of Prof'l & Tech. Engineers
Systems  & Naval Sea Sys. Command Detachment, 25 FLRA 714 (1987)

NLRA      National Labor Relations Act

NTEU & PBGC  National Treasury Employees Union and Pension Benefit
Guarantee Corp., 53 FLRA (No. 138) 1541 (March 11, 1998)

NTEU or union    National Treasury Employees Union

OGC      Office of the General Counsel

OGE      United States Office of Government Ethics

PBGC or agency    Pension Benefit Guarantee Corporation


Statute    Federal Service Labor-Management Relations Statute
5 U.S.C. §§ 7101-7135 (1994 & Supp II 1996)

Treasury  U.S. Dep't of the Treasury, Office of the Chief
Counsel, Internal Revenue Serv., Nat'l Office, 41 FLRA 402 (1991)

ULP      unfair labor practice




CASE BEING CONSIDERED FOR TREATMENT
PURSUANT TO RULE 34(j) OF THE GENERAL RULES

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


No. 98-1234

_______________________________

STUART E. BERNSEN,
                  Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Respondent

and

PENSION BENEFIT GUARANTEE CORPORATION,
      Intervenor

and

NATIONAL TREASURY EMPLOYEES UNION,
                  Intervenor.
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY



STATEMENT OF JURISDICTION

  The final decision and order under review in this case was issued by the
  Federal Labor Relations Authority (FLRA or Authority) in the consolidated
  proceeding National Treasury Employees Union and Pension Benefit Guarantee
  Corp., 53 FLRA (No. 138) 1541 (March 11, 1998) (NTEU & PBGC); Joint Appendix
  (JA) 89-104.  The Authority exercised jurisdiction over the case pursuant to
  section 7105(a)(2)(G) of the Federal Service Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. II 1996) (Statute).[1]
  This Court has jurisdiction to review the Authority's decisions and orders
  pursuant to section 7123(a) of the Statute.  Petitioner Stuart Bernsen (Bernsen)
  filed a petition for review within the 60-day time limit provided by section
  7123(a) of the Statute.

STATEMENT OF THE ISSUE

  Whether the Authority properly determined that an employee's  simultaneous
  service as both a representative of a labor organization and an ethics
  counselor for the agency does not result in an "apparent conflict of
  interest" within the meaning of section 7120(e) of the Statute.

STATEMENT OF THE CASE

I.  Nature of the Case
  This case arose as an unfair labor practice (ULP) proceeding concerning
  allegations that the National Treasury Employees Union (NTEU or union) and
  the Pension Benefit Guarantee Corporation (PBGC or agency) both violated
  section 7120(e) of the Statute by permitting an employee, Holli Jaffe, to
  simultaneously serve as  an official for the union and an ethics counselor
  for the agency.  The ULP complaint alleged that the union and the agency
  committed unfair labor practices by failing to comply with section 7120(e)
  because such dual activity by the employee results in an "apparent conflict
  of interest."  The case was first heard by an Administrative Law Judge (ALJ)
  who concluded that the General Counsel of the FLRA failed to prove by a
  preponderance of the evidence that an apparent conflict of interest was
  created by Jaffe's simultaneous service as ethics counselor and union
  official.  The ALJ recommended that the ULP complaint be dismissed.  JA 88.
  The Authority dismissed the complaint based upon its finding that Jaffe's
  serving simultaneously as ethics counselor and union official did not result
  in an apparent conflict of interest under section 7120(e) of the Statute.
  NTEU & PBGC; JA 89-104.  Bernsen has petitioned this Court for review of the
  Authority's Order dismissing the complaint.
II.  Statement of the Facts
  The facts of this case are set forth in detail in the Authority's decision,
  NTEU & PBGC; JA 89-104.  For ease of reference, the pertinent facts are set
  out below.
  A.  Background
  In this case, one union member, Stuart Bernsen, accuses another union
  member, Holli Jaffe, of engaging in activities resulting in a conflict of
  interest.  They are both members of NTEU Chapter 211, the exclusive
  representative of a bargaining unit of about 400 professional and
  nonprofessional employees of PBGC.  Jaffe is an employee in the Office of
  the General Counsel (OGC) at PBGC and, collateral to her other duties,
  serves as a volunteer ethics counselor.  Jaffe is currently the president of
  the chapter; Bernsen had been the president of the chapter before he lost
  his bid for reelection to Jaffe in the fall of 1994.
JA 90.
  B.  PBGC's Ethics Program
    1.   Management of the program
  As required by the Ethics in Government Act of 1978,
  5 U.S.C. App. (1994), and government-wide ethics regulations promulgated by the
  United States Office of Government Ethics (OGE) at 5 C.F.R. §§ 2600 et seq.
  (1998), PBGC maintains an ethics program to advise and educate agency employees
  regarding their responsibilities under the Standards of Ethical Conduct for
  Government Employees in the Executive Branch.  The PBGC ethics program is
  supervised by the agency's General Counsel and two other attorneys in the
  General Counsel's office, not otherwise involved in this case.  JA 90.  These
  three designated individuals are the only persons to whom PBGC has delegated
  authority to make ethics determinations concerning actions permitted or required
  of other agency employees.  JA 90-91.  These designated ethics officials are
  assisted in maintaining the agency's ethics program by a number of volunteer
  ethics counselors who are trained and thereafter assigned ethics duties
  collateral to their other work.  JA 91.
  Disciplinary actions based on ethical violations rarely occur at PBGC.  JA
  102.  However, when it has been necessary to discipline an employee at PBGC
  for failure to adhere to the prescribed standards of ethical conduct, ethics
  counselors have not been involved in the disciplinary investigations or
  actions.  JA 92.
    2.  The role of ethics counselors
  Unlike the officials who manage the agency's ethics program, ethics
  counselors are not authorized to make ethics determinations under the
  Standards of Conduct.  JA 91.  Their role is generally advisory in nature.
  Ethics counselors do not investigate possible ethics violations, become
  involved with the discipline of employees, or take corrective action for
  ethics violations because these matters are outside of their purview.
  Rather, ethics counselors' duties include training agency employees on
  ethics standards, responding to employee inquiries concerning ethics
  regulations, reviewing financial disclosure forms of agency employees, and
  assisting agency employees in drafting outside employment requests.  JA
  91-92.  Counselors, however, like all federal employees, have a duty to
  disclose waste, fraud, abuse, and corruption to appropriate authorities.
  See 5 C.F.R. § 2635.101(b)(11).
  Jaffe, in addition to her other duties as a GS-14 attorney in the OGC, has
  been an agency ethics counselor since April 1991.  JA 90-91.  Jaffe's work
  in the ethics area is limited to reviewing employee-provided facts about
  proposed conduct, analyzing the facts under applicable ethics rules, and
  formulating a response that the designated agency ethics officials must
  ultimately approve.  In her role as an ethics counselor, Jaffe advises,
  trains, and deals with both nonbargaining unit and bargaining unit
  employees.  JA 91.
    3.  The recusal policy
  Jaffe, along with several other union representatives for Chapter 211, has
  simultaneously served as an ethics counselor.  As a result, the practice has
  been that if ethics counselor and representational responsibilities overlap,
  certain procedures are followed.  When an ethics counselor is assigned an
  ethics task or is contacted by an agency employee concerning a matter that
  the ethics counselor has previously worked on in a representational
  capacity, the ethics counselor will advise the official making the
  assignment or the employee seeking advice to contact another counselor.  JA
  91.
  Similarly, if an ethics counselor is asked by a bargaining unit employee to
  handle a matter as a union representative that the representative has
  already worked on as an ethics counselor, the counselor/representative will
  recuse herself and refer the requester to another Chapter 211 officer or
  steward.  Id.  When approached by a bargaining unit employee on an ethical
  issue, Jaffe routinely determines the capacity in which she is being
  consulted.  JA 92.
  C.  The 1994 Union Election and Surrounding Circumstances
  Prior to being elected president in 1994, and while she served as an ethics
  counselor for PBGC, Jaffe served Chapter 211 in various official capacities.
  She was a steward, an appointed vice-president, and in October 1992 was
  elected vice-president of the chapter.  Bernsen was elected president in
  this 1992 election.  As president, he appointed Jaffe chief negotiator for
  the chapter.  During this period, President Bernsen directed Jaffe, and
  other ethics counselors who were also union officials, to handle ethics-
  related cases for the union.  Neither Bernsen nor any other employee raised
  any conflict of interest complaints concerning Jaffe's ethics counselor
  duties while she acted as a steward, vice-president, or chief negotiator for
  the chapter.
JA 91-92, 97-98.
  In October 1994, Jaffe was elected president of NTEU, Chapter 211, defeating
  the incumbent president, Bernsen.  During the election in the fall of 1994,
  there were no complaints that Jaffe's dual service resulted in an apparent
  conflict of interest.  After the election, however, Bernsen began to
  complain about Jaffe's ability to perform as both an ethics counselor and a
  chapter official.  JA 90.
  Bernsen attacked Jaffe's election in three different ways.  He filed an
  appeal with NTEU.  He filed a complaint with the Department of Labor (DOL).
  He also filed ULP charges against the union and the agency with the General
  Counsel of the FLRA.  Each of these complaints alleged, inter alia, that
  Jaffe's simultaneous service as an ethics counselor and as a union
  representative resulted in a real or apparent conflict of interest under
  section 7120(e) of the Statute.  NTEU denied Bernsen's election appeal and
  DOL deferred to the Authority's determination of whether Jaffe's activity
  resulted in an actual or apparent conflict of interest.  The General
  Counsel, on the other hand, issued a consolidated complaint against NTEU and
  PBGC.  JA 32-39.
  As a result of the ULP complaint, one of PBGC's designated ethics officials
  and Jaffe sought guidance from OGE as to the propriety of Jaffe's dual
  status.  OGE opined that Jaffe's service as both chapter president and
  ethics counselor did not result in an appearance problem violating 5 C.F.R.
  § 2635.502 or constitute a conflict of interest in violation of 5 U.S.C. §
  208.  JA 91.  OGE's conclusion was consistent with its prior audits of
  PBGC's ethics program.  JA 93.
  As explained more fully below, both the ALJ and the Authority rejected
  Bernsen's claim of apparent conflict of interest.  After examining Jaffe's
  role as union president, PBGC's ethics program, Jaffe's responsibilities as
  an ethics counselor, and other relevant factors, both the ALJ and the
  Authority determined that an "objectively reasonable person" would not view
  Jaffe's dual roles as resulting in an apparent conflict of interest.  JA
  99-102.
III.  Proceedings Below
  Construing its own statute, the Authority developed a  standard for
  determining whether an "apparent conflict of interest" under section 7120(e)
  has resulted from the activities of an employee.  As the Authority described
  this standard, the existence of an apparent conflict of interest would hinge
  on "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."  JA 97.
  The Authority found that its precedent supported this standard.  In
  addition, the Authority noted that this standard was comparable to those
  utilized in other areas where there are requirements involving the
  "appearance" of impropriety.  This objective standard is not triggered by
  the subjective beliefs of those who do not understand the circumstances and
  the processes involved.  JA 96.
  Applying this reasonable, objective standard to the facts of this case, the
  Authority determined that, under the totality of the circumstances, there
  was no "apparent conflict of interest" within the meaning of section
  7120(e).  First, the Authority found that none of the relevant parties has
  complained about Jaffe's dual functions.  Despite the fact that union
  representatives have served as ethics counselors for years at the agency,
  there have been no complaints.  JA 97-98.  Neither the union nor the agency,
  having full knowledge of the facts and circumstances, took the position that
  the dual responsibilities result in an apparent conflict of interest.  JA
  97.  No employee, other than Bernsen, has complained about an employee
  serving the dual roles.  JA 97-98.  Indeed, Bernsen, when he was president
  of the union, actually assigned ethics cases to ethics counselors who were
  also union officials -- including Jaffe -- because of their ethics expertise
  developed as an ethics counselor.  JA 91.  Finally, the Authority noted that
  OGE had concluded that Jaffe's dual roles did not result in an apparent
  conflict of interest under the ethics regulations.  JA 102.  The Authority
  recognized that OGE's opinion regarding what constitutes a conflict of
  interest under section 7120(e) is not entitled to deference; however, the
  Authority determined that the ALJ only deferred to OGE's opinion regarding
  the regulations it administers.  JA 101-102.
  Second, the Authority found no evidence that Jaffe's dual role as ethics
  counselor and union representative had the appearance of compromising her
  ability to be effective in both positions or that the two positions were
  incompatible.  Her role as ethics counselor is advisory:  she does not
  investigate possible ethical violations; she does not discipline employees;
  she does not make ethical determinations or grant waivers.
  JA 99.  In the remote event that an ethics counselor/union representative
  encountered the same case in her dual capacity, a recusal policy would be
  utilized to prevent any potential conflict.  JA 98-99.  In light of the recusal
  policy and Jaffe's practice of determining the capacity in which she is being
  consulted, the Authority found that the chance of a conflict arising was
  unlikely.  JA 102.  After considering all of these factors, the Authority
  concluded that under the totality of the circumstances an objectively reasonable
  person would not view Jaffe's dual roles as resulting in an apparent conflict of
  interest.  JA 99.
  Examining its own precedent, the Authority determined that its decision was
  consistent with Department of Health, Educ. and Welfare, 6 FLRA 628 (1981)
  (HEW), a case finding no violation of section 7116(a)(1) and (2) where the
  agency terminated the appointment of an employee as EEO counselor upon the
  employee's election to the position of Chapter Vice President.  The
  Authority observed that, in that case, the agency believed that such dual
  office-holding would result in a conflict of interest.  In addition, the
  Authority noted, the agency in HEW had a policy that actually prohibited
  such concurrent office-holding, thereby fostering the appearance of a
  conflict of interest if a particular employee in violation of this agency
  policy were to  hold the position of EEO counselor and union official.  JA
  100.
  The Authority determined that HEW was distinguishable.  First, the Authority
  found that it is undisputed that PBGC does not have such a policy.
  Moreover, the Authority stated, the practice at PBGC of having ethics
  counselors who were also union officials had been an unchallenged custom for
  years.  Id.  Further, the Authority noted, the EEO counselor and ethics
  advisor positions were different for purposes of apparent conflict of
  interest analysis.  Id.
  Having established and applied an appropriate standard, and ensured that its
  actions were consistent with precedent, the Authority concluded that there
  was no apparent conflict of interest.  Accordingly, the Authority dismissed
  the complaint.

STANDARD OF REVIEW

  The standard of review of Authority decisions is "narrow." American Fed'n of
  Gov't Employees, Local 2343 v. FLRA,
  144 F.3d 85, 88 (D.C. Cir. 1998).  Authority action shall be set aside only if
  "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
  with law."  5 U.S.C. § 7123(c), incorporating 5 U.S.C. § 706(2)(A); Overseas
  Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988); EEOC v. FLRA,
  744 F.2d 842, 847 (D.C. Cir. 1984).  Under this standard, unless it appears from
  the Statute or its legislative history that the Authority's construction of its
  enabling act is not one that Congress would have sanctioned, the Authority's
  construction should be upheld.  See Chevron, U.S.A., Inc. v. Natural Resources
  Defense Council, Inc., 467 U.S. 837, 844 (1984).  A court should defer to the
  Authority's construction as long as it is reasonable.  See id. at 845.
  Factual findings of the Authority that are supported by substantial evidence
  on the record as a whole are conclusive.  See 5 U.S.C. § 7123(c); Power v.
  FLRA, 146 F.3d 995, 1000 (D.C. Cir. 1998).  The Authority is entitled to
  have reasonable inferences it draws from its findings of fact not be
  displaced, even if the court might have reached a different view had the
  matter been before it de novo.  Id. at 1001.
  Finally, as the Supreme Court has stated, the Authority is entitled to
  "considerable deference" when it exercises its "special function of applying
  the general provisions of the [Statute] to the complexities of Federal labor
  relations."  Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97
  (1983).

SUMMARY OF ARGUMENT

  This case required the Authority to interpret its own organic statute.
  Section 7120(e) states that the Statute does not authorize an employee to
  participate in the management of or represent a union if the participation
  or activity would result in an "apparent conflict of interest."  The
  specific issue here is whether an employee's simultaneous service as both an
  agency ethics counselor and a union official results in an "apparent
  conflict of interest," a term that is undefined.  The Authority determined
  that the proper test is whether, under the totality of the circumstances, 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 union official.
  The standard the Authority developed for section 7120(e) is reasonable and
  correct.  This test is compatible with section 7120(e)'s structure,
  consistent with relevant Authority precedent, and comparable to federal
  conflict of interest analysis in other areas.  In view of the deference an
  agency is due when administering its own organic statute, this Court should
  defer to the Authority's interpretation of 7120(e).
  Ignoring the actual language of section 7120(e), Bernsen argues that anyone
  who is an "agent of management" should be prohibited from representing the
  union because an agent cannot serve two principals.  His claim must be
  rejected for several reasons.  First, Bernsen's broad claim is not supported
  by the statute; section 7120(e) does not include the term "agent of
  management."  Second, every employee is an agent of management whenever that
  employee performs official duties; thus, Bernsen's claim would prohibit any
  employee from being a union official.  Third, the Supreme Court has already
  held that, within the context of labor law, an employee can serve both the
  employer and the union.  Therefore, the Authority properly analyzed under
  its objective test whether an employee's dual roles resulted in an apparent
  conflict of interest.
  Examining the totality of the circumstances, the Authority reasonably
  determined that there is no apparent conflict of interest.  First, the
  ethics counselors' role in PBGC's ethics program is limited -- they do not
  make ethics determinations, investigate potential violations, or discipline
  employees for ethical violations.  And even with that limited role, a
  recusal policy exists.  Second, union officials have been ethics counselors
  at PBGC for years without objection.  OGE, when asked to give an opinion
  about the activities of ethics counselors who are also union officials,
  determined that under its regulations there is no apparent conflict of
  interest.  Neither the agency nor the union believes that there is an
  apparent conflict of interest.  And finally, the agency's employees have not
  complained about ethics counselors who are also union officials.  Because
  the Authority's findings, amply supported by the record as a whole, are
  reasonable, Bernsen's petition for review should be dismissed.

ARGUMENT

THE AUTHORITY PROPERLY DETERMINED THAT AN EMPLOYEE'S SIMULTANEOUS SERVICE AS A
UNION REPRESENTATIVE AND AN AGENCY ETHICS COUNSELOR DOES NOT RESULT IN AN
"APPARENT CONFLICT OF INTEREST" UNDER SECTION 7120(E)

  The specific issue this case raises is whether the Authority properly
  construed and applied the phrase "apparent conflict of interest" in section
  7120(e) of the Statute when it dismissed ULP complaints against the union
  and the agency.  As discussed previously, the Authority determined that
  simultaneous service by an agency employee as a local union official and a
  collateral duty ethics counselor did not result in an "apparent conflict of
  interest" under section 7120(e).
  In deciding this case, the Authority properly developed an objective test
  for resolving apparent conflict of interest claims under section 7120(e) of
  the Statute and, considering the totality of the circumstances, properly
  applied that test to the case's facts.  Because the Authority's construction
  and application of this aspect of its enabling statute was reasonable, the
  Court should uphold the Authority's decision.  See, e.g., Department of
  Justice, Immigration & Naturalization Serv. v. FLRA, 144 F.3d 90, 93 (D.C.
  Cir. 1998) (Court will "defer to the Authority's interpretation, so long as
  that interpretation is reasonable.").
  A.  The Authority Developed an Appropriate Standard for Determining If an
  Apparent Conflict of Interest Exists under Section 7120(e) of the Statute
  The standard the Authority used for applying section 7120(e) to the facts of
  this case was reasonable and correct.  To determine whether Jaffe's
  activities resulted in an apparent conflict of interest, the Authority held
  that the proper question to ask under section 7120(e) 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."
  JA 97.[2]
  Although there is little Authority precedent involving section 7120(e) of
  the Statute, this test is compatible with section 7120(e)'s structure,
  consistent with relevant Authority precedent, and comparable to federal
  conflict of interest analysis in other areas.  In view of the deference an
  agency is due in its interpretation of its own organic statute, this Court
  should defer to the Authority's interpretation of 7120(e).  See GSA v. FLRA,
  86 F.3d 1185, 1187-88 (D.C. Cir. 1996).
    1.  The Authority's standard is compatible with the
    structure of section 7120(e)
  Development of a standard such as that used by the Authority in this case is
  necessitated by section 7120(e)'s structure.  A portion of section 7120(e)
  -- not implicated in this case -- specifies, categorically, types of
  individuals "not authorize[d]" to participate in or represent a labor
  organization.  These categorical exclusions include "management official,"
  "supervisor," and "confidential employee."  These three categories are
  defined in the Statute.  See 5 U.S.C.
§ 7103(a)(10), (11), and (13).
  In contrast, there is no clearly defined, categorical exclusion in section
  7120(e) applicable to most employees.  Their service as a union official is
  "not authorize[d]" only if there is, as pertinent here, an "apparent
  conflict of interest."  Because the Statute and its legislative history are
  silent as to the term's meaning, it was necessary for the Authority to
  construe the phrase to decide this case.  See Chevron, 467 U.S. at 843-44.
  This it did when it developed the "objectively reasonable person" standard
  noted above.
  Bernsen argues that the Authority's standard is incompatible with section
  7120(e) because that section "establishes a strict, per se rule . . . that
  prohibits all agents of management" from serving as a union official.  Brief
  at 23.  Relying on National Labor Relations Act (NLRA) case law, he asserts
  in this connection that employees are entitled to representatives who have
  "single-minded loyalty" to the employees' interests, broadly defining
  "single-minded loyalty" as serving only one principal.  Brief at 25.
  Bernsen's argument should be rejected for several reasons.
  First, Bernsen's argument is inconsistent with the language of section
  7120(e).  Second, it is undermined by the overall structure and underlying
  policy of the Statute.  Third, the Supreme Court has rejected Bernsen's
  position that, as a matter of labor law, an agent can serve only one
  principal.  Finally, the NLRA case law that he relies on is inapposite.
  First, Bernsen's broad claim that section 7120(e) contains a "strict, per se
  rule" that prohibits all "agents of management from serving as Federal union
  representatives" (Brief at 23) is inconsistent with the Statute's language.
  Section 7120(e) does not use the phrase "agents of management."  Therefore,
  Bernsen's claim is an attempt to graft upon the Statute a provision Congress
  did not choose to include.
  Second, Bernsen's claim is also undermined by the overall structure and
  underlying policy of the Statute.  Every employee, by definition, serves the
  agency in some capacity.  And every employee is guaranteed the right under
  section 7102 to also "act for a labor organization in the capacity of a
  representative" -- unless it results in a conflict under section 7120(e).
  In addition, section 7131 of the Statute provides for official time.[3]
  Thus, the Statute expressly sanctions employees having dual roles -- acting
  as an agent for the employer on duty time and as an agent for the union on
  official time.
  Bernsen's argument concerning section 7120(e) was also properly rejected by
  the Authority as a matter of policy.  Since every federal employee is an
  agent of management whenever that employee is performing his or her official
  duties, under Bernsen's theory of section 7120(e), no federal employee could
  be a union representative -- an impracticable result.  As the Authority
  noted (JA 97), if this broad "single-minded loyalty" standard were adopted,
  federal sector unions could only be serviced by full-time paid union staff.
  Rejecting this position as both unworkable and inconsistent with the
  Statute, the Authority concluded that there was nothing inherently improper
  about Jaffe's simultaneous service as union official and ethics counselor.
  Third, the Supreme Court has rejected Bernsen's position that, as a matter
  of labor law, an agent can serve only one principal.  See NLRB v. Town &
  Country Elec., Inc., 516 U.S. 85 (1995).  In that case, the Supreme Court
  stated that so long as service to one master does not amount to abandonment
  of the service owed to the other, an employee could serve two masters.[4]
  Finally, the NLRA precedent on which Bernsen relies is inapplicable.[5]
  Bernsen cites several cases (Brief at 23-26) that stand for the proposition
  that under the NLRA, supervisors may not serve as union officials because
  participation by supervisors in union affairs is illegal employer
  interference.[6]  This precedent, though correct, is inapposite because
  Jaffe is not a supervisor.  The proposition that agents must be loyal to
  their principals is sound, but -- as Bernsen concedes (Brief at 28) -- only
  on matters that relate to that agency.  The NLRA cases on which Bernsen
  relies, and from which Bernsen borrows the concept of "single minded
  loyalty," merely recognize the fact that supervisors are agents for their
  employers in the area of labor relations.[7]  Indeed, section 7120(e) also
  recognizes this fact by specifically not authorizing management officials,
  supervisors, and confidential employees to act as union representatives.
  Jaffe is not a "supervisor," "management official," or "confidential
  employee," within the meaning of the Statute.  She is an employee.  Section
  7120(e) applies to employees only  insofar as their activities would result
  in a conflict or apparent conflict of interest.  Because the Statute does
  not define "apparent conflict of interest," it was necessary and appropriate
  for the Authority to develop a test to determine whether Jaffe's activities
  fell within the coverage of section 7120(e).
    2.  The Authority's standard is consistent with Authority precedent
  The test developed by the Authority in this case is consistent with its
  decisions that have considered the issue of conflict of interest, under
  section 7120 and otherwise.  See U.S. Dep't of the Treasury, Office of the
  Chief Counsel, Internal Revenue Serv., Nat'l Office, 41 FLRA 402, 414 (1991)
  ("Treasury"); Merit Sys. Protection Bd. & Merit Sys. Protection Bd. Prof'l
  Ass'n, 12 FLRA 137, 141 n.7 (1983) (MSPB).  In Treasury, the Authority
  explained that "in order to determine whether the proscription in section
  7120(e) applies in a given case, a respondent's 'conduct must be judged by
  the reasonableness of its actions in all circumstances.'"
  41 FLRA at 414 (citations omitted).[8]  The test employed by the Authority in
  this case, positing an "objectively reasonable person, with knowledge of all the
  facts and procedures" (JA 97), is a natural elaboration of the Authority's
  holding in Treasury.
  As the Authority in this case further explained, the standard is not
  triggered by those who might have mistaken impressions as to either the
  nature of the duties involved or the governing laws or rules.  JA 96.  On
  the contrary, "[t]he objectively reasonable person is presumed to know the
  duties in question and related policies and procedures."  Id.  The Authority
  noted that it had similarly recognized in a representation case 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.  This consistency of the
  standard used by the Authority in the instant case with Authority precedent
  is another indication that the standard is reasonable and merits the Court's
  deference.
  Bernsen misconstrues Authority precedent when he states that the Authority
  has "held that section 7120(e) strictly bans dual agents from serving as
  union representatives."  Brief at 36-37 (citing Local 3, Int'l Fed'n of
  Prof'l & Tech. Engineers & Naval Sea Sys. Command Detachment, 25 FLRA 714
  (1987) (Naval Sea Systems); Harry S. Truman Mem'l Veterans Hosp., 8 FLRA 42
  (1982) (Harry S. Truman); and Department of Health, Educ. & Welfare,
  6 FLRA 628 (1981) (HEW)).  None of these cases supports Bernsen's claim.
  In Naval Sea Systems, the Authority found negotiable -- and therefore not in
  violation of section 7120(e) -- a proposal to recuse, in any discrimination
  complaint proceeding, a union official who was also an EEO counselor.
  Consistent with its decision in the instant case, in Naval Sea Systems the
  Authority explicitly stated that "an employee is not automatically barred
  from serving as an EEO counselor because that employee is currently a Union
  officer or steward."  25 FLRA at 724 (emphasis added).
  In Harry S. Truman, the Authority did not consider whether  simultaneous
  service as an EEO counselor and a union official was in compliance with
  section 7120(e).  Rather, the Authority found that, because there was no
  evidence of anti-union animus, an agency did not interfere with, restrain or
  coerce an employee in the exercise of section 7102 rights when the agency
  "attempted to act consonant with the 'conflict of interest' provision of
  section 7120(e)."  8 FLRA at 44.
  Finally, HEW, discussed at length in the Authority's decision (JA 99-100),
  is also not inconsistent.  In HEW, the Authority adopted without discussion
  the ALJ's determination that an agency had not committed a ULP when it
  terminated an employee's role as a part-time EEO counselor upon the
  employee's election to the union's vice-presidency.  Although the ALJ did
  not cite section 7120(e) in HEW, he did, however, conclude that under the
  facts of that case "the dual role of EEO Counselor and Union Vice-President
  presents at least an apparent conflict of interest."  6 FLRA at 638.
  Contrary to Bernsen's allegation that HEW dictates a similar determination
  in this case, HEW is distinguishable.  In HEW, the agency had a "policy
  prohibiting such concurrent office-holding."  6 FLRA at 637.  As the
  Authority indicated in the instant case, the existence of such an agency
  policy could be a significant factor in establishing an apparent conflict of
  interest for an employee who occupied dual positions in violation of such a
  policy.  However, here there was no such policy, and dual service as a union
  official and an ethics counselor was an unchallenged custom.  JA 100.  The
  agency's acceptance of Jaffe's -- and other ethics counselors' -- dual role
  in this case, and the different position (ethics counselor, not EEO
  counselor) in which she served, also distinguish the two cases.
    3.  The Authority's standard is comparable to federal conflict
    of interest analysis in other areas
  Standards involving appearance requirements in other legal areas are
  comparable with the test adopted by the Authority.  For example, in
  describing the requirement of impartiality in performing official duties,
  set out in 5 C.F.R. § 2635.502, the Office of Government Ethics explained
  that the test was "whether a reasonable person with knowledge of the
  relevant facts would question" an employee's impartiality.  57 Fed. Reg.
  35025 (August 7, 1992).  Similarly, an "objective member of the public at
  large" standard is applied in evaluating compliance with Canon 9 of the Code
  of Professional Responsibility for Attorneys, which requires that "[a]
  lawyer should avoid even the appearance of professional impropriety."
  United States v. Smith, 653 F.2d 126, 128 & n.3 (4th Cir. 1981).  "[A]
  fanciful, unrealistic or purely subjective suspicion of impropriety" does
  not implicate the Canon.  Id. at 128.
  Bernsen states that the Authority's test is an "incorrect statement of
  Federal conflict of interest law."  Brief at 38.[9]  This assertion misses
  the mark.  First, Bernsen does not claim that the law discussed above and
  cited by the Authority is inapposite.  Second, the fundamental issue in this
  case is whether the Authority's interpretation and application of section
  7120(e) was reasonable.  As demonstrated above, the Authority's actions find
  support in the Statute's language, Authority precedent, and analogous law.
  The Authority's actions should therefore be affirmed by this Court.  See GSA
  v. FLRA, 86 F.3d 1185, 1187 (D.C. Cir. 1996).
  In sum, the standard adopted by the Authority -- 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 a reasonable and
  appropriate standard for analyzing the applicability of section 7120(e) to a
  case such as this.  Accordingly, under the deferential standard of review
  that applies, it should be upheld by the Court.
  B.  The Authority Properly Applied the Reasonable Person Standard to
  the Totality of the Circumstances in This Case
  The Authority properly analyzed under its objective test whether Jaffe's
  dual roles result in an apparent conflict of interest.  Examining the
  totality of the circumstances, the Authority reasonably determined that
  there is no apparent conflict of interest.  First, ethics counselors have
  only a limited role in PBGC's ethics program, and even with that limited
  role, a recusal policy exists.  Moreover, OGE, the agency, the union, and
  the agency's employees have not complained about the activities of ethics
  counselors who are also union officials.  Bernsen's arguments concerning
  potential conflicts are too speculative to displace the Authority's
  reasonable determination that there is no apparent conflict of interest on
  the facts of this case.
    1.   Under the totality of the circumstances, an objectively
    reasonable person would not question Jaffe's ability to
    perform both as an ethics counselor and as a union official or
    representative
  The test developed by the Authority for determining apparent conflicts of
  interest posits an "objectively reasonable person" with full knowledge of
  all of the facts and procedures.  A variety of pertinent considerations
  support the Authority's conclusion that no apparent conflict of interest
  exists.
  Supporting this conclusion, for example, is the fact that the agency limited
  the role of agency ethics counselors to reviewing financial disclosure
  reports, ethics training, and offering prospective ethics-related advice.
  JA 91.  Counselors like Jaffe have no program responsibilities and, unlike
  the ethics program managers, do not make ethics determinations or grant
  waivers.  Id.  They do not investigate possible ethics violations and do not
  discipline employees for those violations. Id.  Although Bernsen speculates
  otherwise (Brief at 32), ethics counselors are not "involved in labor-
  relations and personnel-type activity" as representatives for the agency.
  JA 80.
  The recusal policy also weighs against a finding of an apparent conflict of
  interest in this case.  Although, as the Authority noted, 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, reasonably considered, is a device designed to dispel
  appearance of conflict problems.
  Contrary to Bernsen's argument (Brief at 48), there is nothing about the
  presence of the recusal policy that implies that an apparent conflict of
  interest exists.  In fact, the presence of such a procedure alleviates
  concerns about such apparent conflicts.  A case relied upon by Bernsen
  recognizes this principle.  See Crandon v. United States, 494 U.S. 152, 166
  (1990) (finding that payments to government employees from former private
  sector employer did not create apparent conflict of interest, in part,
  because the employee was disqualified "from participating in any matter
  involving a former employer.").
  In addition, OGE has interposed no objection to the arrangement that Bernsen
  challenges.  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.  When asked about 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.
  Furthermore, neither PBGC nor NTEU questions Jaffe's ability to perform as
  an ethics counselor and a union official or representative.  PBGC -- unlike
  the employer in HEW, which had a policy against EEO counselors
  simultaneously holding union office --  does not have a policy against
  ethics counselors holding union office.  Indeed, it has been the practice
  over the years for union officials to be ethics counselors.
  The Authority did not, as Bernsen asserts (Brief at 42), "defer[] to the
  interests of interested parties" in deciding that no apparent conflict of
  interest existed.  The Authority only found that PBGC's and NTEU's views
  were "pertinent" to the issue of whether there is in fact an apparent
  conflict of interest.
  JA 97.  The views of these organizations were pertinent because the agency and
  the union represent an important part of the community of reasonable persons who
  might perceive a conflict in an employee's simultaneous service as both a union
  official and an ethics counselor.  Id.
  Finally, the employees at PBGC did not question the ability of Jaffe -- or
  any of the other union officials who have been ethics counselors at PBGC --
  to perform as an ethics counselor and a union official or representative.
  This silence by PBGC employees, also important members of the relevant
  reasonable person community, is evidence of a lack of an apparent conflict
  of interest.
  Contrary to Bernsen's allegations (Brief at 42), it was not error for the
  Authority to consider the opinion of OGE, the views of the agency and the
  union, and the lack of complaints from PBGC employees in applying its
  objective "reasonable person" standard.  That some of this evidence is
  subjective does not mean that it must be ignored in applying an objective
  standard.  "[T]he parties' own words and deeds may help determine the extent
  to which a knowledgeable observer would see, in a particular circumstance, a
  sign of partiality."  In re Allied-Signal, Inc., 891 F.2d 967, 972 (1st Cir.
  1989) (now-Justice Breyer dismissing under an objective test a claim of
  appearance of partiality, in part because the actual parties in the case had
  not objected).
  Even Bernsen did not question Jaffe's ability to perform as an ethics
  counselor and a union official.[10]  Jaffe was an ethics counselor and union
  official during the period that Bernsen was president of the union.  Indeed
  Bernsen evidently found Jaffe's ethics counselor experience valuable to the
  union.  As union president, Bernsen assigned Jaffe and other union officials
  who were ethics counselors ethics-related cases to handle.  JA 91.  In sum,
  the Authority reasonably considered the views of those in the community
  involved in analyzing whether an objectively reasonable person, with
  knowledge of all the facts and circumstances, would question Jaffe's ability
  to simultaneously serve in both positions, and reached a reasonable
  conclusion.
    2.  Bernsen's arguments concerning potential conflicts are
    based on conjecture
  Bernsen suggests that an employee who has both ethics counselor duties and
  union official duties results in the "possibility and potential" of
  conflicts of interest.  Brief at 43-47.  The Authority considered this
  potential and found that this is at most a remote possibility and did not
  substantiate an apparent conflict of interest under section 7120(e).
  The Authority specifically determined that the chance of conflicts
  developing was remote.  As noted earlier, first, Jaffe routinely clarifies
  the capacity in which her advice or assistance is sought.  Second, PBGC
  ethics counselors have only a limited role.  They do not investigate
  possible ethics violations nor do they discipline employees for those
  violations.  Third, there have been relatively few ethics-related
  disciplinary actions at PBGC, and, in any event, those actions are not
  handled by the ethics counselors.  It is undisputed that Jaffe has never
  provided ethics advice that resulted in a grievance.
  Bernsen thus errs when he states that the Authority "denied that an apparent
  conflict of interest involves the potential or possibility of opposing
  temptations" (Brief at 42); rather the FLRA found that the potential or
  possibility was so remote that it did "not equate to an apparent conflict in
  this case." JA 102 (emphasis added).  That finding, supported by the record
  as