Congressional Research Employees Association, IFPTE, Local 75 and Library of Congress, 0-AR-3777, May 28, 2004, 59 FLRA No. 175.

FLRA turned down union exceptions to an award in which the arbitrator denied a grievance alleging that the Congressional Research Service of the Library of Congress violated the CBA and the Statute when it reassigned to another analyst work performed for Congress (dealing with collective bargaining issues as they related to the Department of Homeland Security (DHS)) by an analyst who was the president of the Congressional Research Employees Association, IFPTE. The arbitrator had found that the reassignment of work was justified because it was necessary to avoid an apparent conflict of interest. The Authority concluded, among other things, that "the Arbitrator's finding of an apparent conflict of interest is consistent with the Authority's precedent interpreting and applying §7120(e)."

When the Associate Director for Congressional Affairs learned that an analyst, who was the president of the local union, had worked on responses to Congressional inquiries on collective bargaining issues related to proposals to form the DHS, he immediately concluded that the union president's involvement in this project "presented a serious risk of apparent conflict of interest." He therefore assigned this work to another analyst and arranged to have the union informed of his decision. The union president was told that because he was the union's president "his work on collective bargaining and union issues relating to Homeland Security could give the appearance of a conflict of interest." The matter was grieved and referred to arbitration.

At the arbitration hearing the union argued, among other things, that the agency's action constituted discrimination and claimed that the agency's justification for such discrimination was unsupported. The arbitrator disagreed. Although he found nothing in the grievant's work that appeared biased, partisan or subjective, the work was reassigned not because of an actual conflict of interest, but because of an apparent conflict. "The appearance of a conflict of interest," he said, "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." He went on to say 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." Moreover, the products authored by the union president related to "a matter of great partisanship, a 'white hot' issue in Congress." The arbitrator concluded that the agency's decision that an apparent conflict existed was reasonable and he accordingly denied the grievance.

The Authority denied all the union's exceptions to the award. It found, among other things, that the award wasn't contrary to §7120(e) and the agency's regulations.

[T]he 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 even greater heightened security 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 of Bernsen [v. FLRA, 203 F.3d 51 (DC Cir. March 19, 1999)] would question the grievant's ability to perform his official duties while acting as a representative of a labor organization.

FLRA also rejected the union's challenge to the arbitrator's interpretation and application of agency regulations. It noted that the regulations establish general guidelines under which, among other things, staff members were to avoid any action adversely affecting the public's confidence in the agency. They also provide that employees could be members of labor organizations "to the extent that such membership, office or participation is consistent with law and does not . . . give the appearance of a conflict of interest[.]" They also provide that the agency "may prohibit or limit" an employee's activity if such activity creates a conflict of interest.

In rejecting the union's claim that the award was contrary to §7116(a)(1), FLRA said the following:

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.

It isn't clear what the Authority had in mind when it noted the union "raised no issues regarding the manner in which the work was removed." Perhaps it was a possible claim that the agency acted unilaterally instead of notifying the union that it proposed to make the change and affording the union an opportunity to bargain on the impact and implementation of management's reserved decision to reassign the work.