Association of Civilian Technicians, Pennsylvania State Council (Union) and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania (Activity)
[ v03 p50 ]
03:0050(8)NG
The decision of the Authority follows:
3 FLRA No. 8
ASSOCIATION OF CIVILIAN TECHNICIANS,
PENNSYLVANIA STATE COUNCIL
(Union)
and
THE ADJUTANT GENERAL, DEPARTMENT OF
MILITARY AFFAIRS, COMMONWEALTH OF
PENNSYLVANIA
(Activity)
Case No. 0-NG-50
DECISION ON NEGOTIABILITY ISSUES
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
UNION PROPOSAL
6. RETENTION REGISTER STANDING
A. EXCEPTED SERVICE-- RETENTION STANDING OF A TECHNICIAN IS
DETERMINED BY THE COMBINED CUMULATIVE TOTALS OF THE ANNUAL TECHNICIAN
PERFORMANCE RATING NGB FORM 2, PREPARED IN ACCORDANCE WITH TPP 902, AND
THE APPRAISAL BY THE IMMEDIATE MILITARY SUPERVISOR NGB FORM 351-2,
PREPARED AT THE SAME TIME. MILITARY APPRAISALS WILL BE COMPLETED AT THE
TIME OF A RIF ONLY FOR THOSE TECHNICIANS WHO DO NOT HAVE A CURRENT
MILITARY APPRAISAL IN THEIR OFFICIAL PERSONNEL FOLDERS. THE WEIGHTED
VALUE OF THE ANNUAL TECHNICIAN PERFORMANCE RATING WILL BE AS FOLLOWS:
SATISFACTORY-- 25 TO 40 POINTS
EXCELLENT-- 50 TO 65 POINTS
OUTSTANDING-- 75 TO 90 POINTS
C. AN APPEAL OF THE MILITARY APPRAISAL WILL BE AS FOLLOWS:
(1) IF A TECHNICIAN IS NOT SATISFIED WITH HIS MILITARY APPRAISAL, HE
MAY APPEAL TO THE
IMMEDIATE MILITARY SUPERVISOR OF HIS RATER. THIS SECOND LEVEL
SUPERVISOR WILL GATHER ALL
FACTS AND RENDER A DECISION WITHIN 15 DAYS OF REQUEST.
(2) IF THE TECHNICIAN IS STILL NOT SATISFIED, HE MAY APPEAL TO THE
NEXT LEVEL MILITARY
SUPERVISOR. THIS SUPERVISOR WILL GATHER ALL FACTS AND RENDER A
DECISION WITHIN 15 DAYS OF
REQUEST.
(3) IF THE TECHNICIAN REMAINS DISSATISFIED, THE NEXT STEP WILL BE THE
NEXT LEVEL MILITARY
SUPERVISOR. THIS SUPERVISOR WILL GATHER ALL FACTS AND RENDER A
DECISION WITHIN 15 DAYS OF THE
REQUEST.
(4) IF THE TECHNICIAN REMAINS DISSATISFIED HE MAY THEN APPEAL TO THE
ADJUTANT GENERAL WHO
WILL GATHER ALL FACTS AND RENDER A DECISION WITHIN 15 DAYS OF THE
REQUEST.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE AGENCY'S
DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY THE AGENCY, IS
OUTSIDE THE OBLIGATION TO BARGAIN.
OPINION
CONCLUSION: (1) PARAGRAPH (A) OF THE PROPOSAL IS WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE. (2) THE SECOND PART OF THE PROPOSAL,
PARAGRAPH (C), IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE AGENCY'S ALLEGATION
THAT THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN IS SUSTAINED IN
PART AND SET ASIDE IN PART.
REASONS: (A) THE UNION'S PROPOSAL SET FORTH ABOVE INVOLVES THE
REDUCTION IN FORCE (RIF) PROCEDURES FOR NATIONAL GUARD TECHNICIANS /1/
ESTABLISHED BY NATIONAL GUARD BUREAU (NGB) REGULATIONS. /2/ THE AGENCY
ALLEGES THAT ITS DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO
PARAGRAPH (A) OF THE UNION'S PROPOSAL INASMUCH AS A "COMPELLING NEED"
EXISTS WITHIN THE MEANING OF SECTION 7117(A)(2) OF THE STATUTE /3/ AND
PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS FOR THE NGB
REGULATION (TPM 351) CONCERNING RIF PROCEDURES FOR NATIONAL GUARD
TECHNICIANS. THE UNION CONTENDS, ON THE OTHER HAND, THAT NOTHING IN
PARAGRAPH (A) OF ITS PROPOSAL CONFLICTS WITH THE NGB REGULATION FOR
WHICH A COMPELLING NEED EXISTS, BUT THAT PARAGRAPH (A) " . . . MERELY
GIVES MORE LATITUDE TO THE TECHNICIAN SUPERVISOR BY EXPANDING THE POINT
RANGE OF EACH CLASS OF PERFORMANCE RATING." /5/ FOR THE REASONS STATED
BELOW, THE AUTHORITY CONCLUDES THAT PARAGRAPH (A) IS WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
THE NATIONAL GUARD TECHNICIANS ACT OF 1968, AS PREVIOUSLY INDICATED,
CONTAINS THE AUTHORITY FOR THE EMPLOYMENT OF NATIONAL GUARD TECHNICIANS.
THE ACT PROVIDES FURTHER THAT RIF ACTIONS INVOLVING NATIONAL GUARD
TECHNICIANS ARE TO BE ACCOMPLISHED BY THE ADJUTANTS GENERAL OF THE
RESPECTIVE JURISDICTIONS CONCERNED SUBJECT TO THE REGULATIONS OF THE
APPROPRIATE MILITARY SERVICE SECRETARY. /6/ ADDITIONALLY, IT REQUIRES
THAT, AS FAR AS PRACTICABLE, SUCH REGULATIONS SHOULD APPLY UNIFORMLY TO
BOTH ARMY AND AIR FORCE NATIONAL GUARD TECHNICIANS. /7/ OTHER SECTIONS
OF THE ACT MANDATE THAT NATIONAL GUARD TECHNICIANS BE EXCEPTED FROM THE
APPLICATION OF VETERANS' PREFERENCE AND FROM THE APPLICATION OF RIF
PROCEDURES DEVELOPED BY THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF
PERSONNEL MANAGEMENT) WHICH APPLY VETERANS' PREFERENCE. /8/ MOREOVER,
THE ACT REQUIRES TECHNICIANS TO MAINTAIN MILITARY MEMBERSHIP IN THE
NATIONAL GUARD AND HOLD THE MILITARY GRADE SPECIFIED FOR THEIR
TECHNICIAN POSITION AS A CONDITION OF CONTINUED TECHNICIAN EMPLOYMENT.
/9/
THE NGB, ACTING ON BEHALF OF THE SECRETARY OF THE ARMY AND THE
SECRETARY OF THE AIR FORCE, PROMULGATED THE RIF REGULATIONS INVOLVED
HEREIN, IMPLEMENTING THESE STATUTORY MANDATES. THAT IS, AS RELEVANT TO
THIS DISPUTE, TO IMPLEMENT THE STATUTORY MANDATE THAT TECHNICIANS
MAINTAIN MILITARY MEMBERSHIP IN THE NATIONAL GUARD AND HOLD THE MILITARY
GRADES SPECIFIED FOR THEIR TECHNICIAN POSITIONS, EVEN IN A RIF
SITUATION, THE REGULATIONS REQUIRE TECHNICIAN RIF DISPLACEMENT RIGHTS
WITHIN AND ACROSS COMPETITIVE LEVELS TO BE BASED ON A MEASUREMENT OF
BOTH CIVILIAN TECHNICIAN AND MILITARY JOB PERFORMANCE. IN SHORT, THE
NGB REGULATIONS IMPLEMENT IN AN ESSENTIALLY NONDISCRETIONARY MANNER THE
STATUTORY MANDATE THAT TECHNICIANS MAINTAIN MILITARY MEMBERSHIP IN THE
NATIONAL GUARD AND HOLD THE MILITARY GRADE SPECIFIED FOR THEIR
TECHNICIAN POSITIONS, AND THEREFORE A COMPELLING NEED EXISTS WITHIN THE
MEANING OF SECTION 7117(A)(2) OF THE STATUTE AND SECTION 2424.11(C) OF
THE AUTHORITY'S RULES FOR THE NGB REGULATION SO AS TO BAR NEGOTIATIONS
ON CONFLICTING UNION PROPOSALS.
IN THE INSTANT CASE, HOWEVER, NOTHING IN PARAGRAPH (A) OF THE UNION'S
PROPOSAL WOULD CONFLICT WITH ANY PART OF THE NGB REGULATION WHICH
IMPLEMENTS THE NONDISCRETIONARY STATUTORY MANDATE THAT TECHNICIANS MUST
MAINTAIN MILITARY MEMBERSHIP IN THE NATIONAL GUARD AND HOLD THE MILITARY
GRADE SPECIFIED FOR THEIR TECHNICIAN POSITIONS AS A CONDITION OF
CONTINUED TECHNICIAN EMPLOYMENT. THAT IS, WHILE THE NATIONAL GUARD
TECHNICIANS ACT OF 1968 REQUIRES BOTH CIVILIAN AND RELATED MILITARY
PERFORMANCE TO BE CONSIDERED AS PART OF A TECHNICIAN'S OVERALL
EVALUATION, NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY THEREOF
SPECIFIES WHAT RELATIVE WEIGHT MUST BE ACCORDED TO EACH APPRAISAL. THE
PROPOSAL AT ISSUE HEREIN WOULD REQUIRE TECHNICIAN SUPERVISORS TO RATE
EACH TECHNICIAN AS EITHER "SATISFACTORY," "EXCELLENT" OR "OUTSTANDING,"
AS REQUIRED BY THE NGB REGULATION (SUPRA NOTE 2), BUT WOULD PERMIT MORE
ACCURACY AND PRECISION BY ESTABLISHING A RANGE OF POINTS RATHER THAN A
SPECIFIC POINT VALUE FOR EACH CATEGORY. SINCE THE RANGE FOR EACH
CATEGORY WOULD START WITH THE POINT VALUE CONTAINED IN THE NGB
REGULATION AND EXTEND NO HIGHER THAN THE POINT VALUE SPECIFIED THEREIN
FOR THE NEXT HIGHER CATEGORY, THERE IS AT LEAST THE POTENTIAL FOR A
TECHNICIAN'S CIVILIAN RATING TO ACQUIRE SLIGHTLY GREATER WEIGHT RELATIVE
TO HIS OR HER MILITARY APPRAISAL SO LONG AS THE WEIGHT ATTRIBUTED TO THE
MILITARY APPRAISAL REMAINED UNCHANGED. HOWEVER, NOTHING IN THE PROPOSAL
WOULD INTERFERE WITH MANAGEMENT'S RIGHT TO ESTABLISH POINT RANGES FOR
MILITARY APPRAISALS OR OTHERWISE ALTER THE WEIGHT THEREOF, TO DETERMINE
WHICH TECHNICIANS TO RETAIN IN A RIF OR SANCTION THE RETENTION OF ANY
TECHNICIAN UNQUALIFIED TO HOLD THE CORRESPONDING MILITARY GRADE FOR SUCH
POSITION. ACCORDINGLY, IT IS CONCLUDED THAT PARAGRAPH (A) OF THE
PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE. /10/
(2) HOWEVER, IT IS CONCLUDED THAT PARAGRAPH (C) OF THE PROPOSAL IS
OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE. AS SET FORTH ABOVE,
PARAGRAPH (C) WOULD ESTABLISH A PROCEDURE FOR A TECHNICIAN TO APPEAL
FROM AN APPRAISAL OF HIS MILITARY PERFORMANCE RENDERED BY HIS MILITARY
SUPERVISOR. THAT IS, IT WOULD PERMIT A TECHNICIAN DISSATISFIED WITH HIS
MILITARY APPRAISAL TO APPEAL THAT APPRAISAL THROUGH FOUR LEVELS OF
MILITARY PERSONNEL CULMINATING WITH THE ADJUTANT GENERAL. WHILE
NATIONAL GUARD TECHNICIANS ARE REQUIRED BY LAW (SUPRA N. 9) TO MAINTAIN
MILITARY STATUS IN THE NATIONAL GUARD AS A CONDITION OF THEIR CIVILIAN
TECHNICIAN EMPLOYMENT RELATIONSHIP (WHICH RELATIONSHIP IS, OF COURSE,
SUBJECT TO THE STATUTE), THE MILITARY RELATIONSHIP ITSELF IS NOT COVERED
BY THE STATUTE BUT IS TOTALLY MANDATED BY LAW. THEREFORE, INASMUCH AS
PARAGRAPH (C) OF THE UNION'S PROPOSAL CONCERNS A MATTER IN CONNECTION
WITH THE MILITARY ASPECTS OF TECHNICIAN EMPLOYMENT FOR MEMBERS OF THE
BARGAINING UNIT, IT CONCERNS A SUBJECT WHICH IS NOT A "CONDITION OF
EMPLOYMENT" WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE
/11/ AND ACCORDINGLY IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
/12/
ISSUED, WASHINGTON, D.C., APRIL 14, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /13/
/1/ NATIONAL GUARD TECHNICIANS ARE EMPLOYED PURSUANT TO THE NATIONAL
GUARD TECHNICIANS ACT OF 1968, 32 U.S.C. 709(1970), IN FULL-TIME
CIVILIAN POSITIONS TO ADMINISTER AND TRAIN THE NATIONAL GUARD AND TO
MAINTAIN AND REPAIR THE SUPPLIES ISSUED TO THE NATIONAL GUARD OR THE
ARMED FORCES. SUCH TECHNICIANS MUST, AS A CONDITION OF THEIR CIVILIAN
EMPLOYMENT UNDER THE ACT, BECOME AND REMAIN MEMBERS OF THE NATIONAL
GUARD (I.E., IN A MILITARY CAPACITY) AND HOLD THE MILITARY GRADE
SPECIFIED FOR THE TECHNICIAN POSITION PURSUANT TO 32 U.S.C. 709(B) AND
(E).
/2/ THE NGB REGULATION, TECHNICIAN PERSONNEL MANUAL (TPM) 351,
PROVIDES IN ESSENCE THAT RIF RETENTION STANDING IS BASED ON A COMPOSITE
MEASUREMENT OF TECHNICIAN PERFORMANCE AND RELATED MILITARY PERFORMANCE.
INSOFAR AS PERTINENT TO PARAGRAPH (A) OF THE UNION'S PROPOSAL, TPM 351
PROVIDES THAT A TECHNICIAN WHOSE ANNUAL PERFORMANCE RATING IS
"SATISFACTORY" WILL RECEIVE 25 POINTS, WHILE A TECHNICIAN RATED
"EXCELLENT" WILL RECEIVE 50 POINTS AND ONE RATED "OUTSTANDING" WILL
RECEIVE 75 POINTS.
/3/ SECTION 7117(A)(2) OF THE STATUTE (92 STAT. 1205) PROVIDES AS
FOLLOWS:
(A)(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL
LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION EXTEND TO MATTERS WHICH
ARE THE SUBJECT OF ANY
AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
SUBSECTION ONLY IF THE
AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
COMPELLING NEED (AS
DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
THE RULE OR REGULATION.
/4/ THE CRITERIA FOR DETERMINING COMPELLING NEED FOR AGENCY RULES AND
REGULATIONS ARE CONTAINED IN SECTION 2424.11 OF THE AUTHORITY'S RULES
AND REGULATIONS (45 FED.REG. 3513(1980)). IT APPEARS THAT THE AGENCY
PRINCIPALLY RELIES ON SECTION 2424.11(C), WHICH PROVIDES THAT A
COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING ANY
CONDITION OR EMPLOYMENT WHEN:
(C) THE RULE OR REGULATION IMPLEMENTS A MANDATE TO THE AGENCY OR
PRIMARY NATIONAL
SUBDIVISION UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
IMPLEMENTATION IS ESSENTIALLY
NONDISCRETIONARY IN NATURE.
/5/ WHILE THE PROPOSAL IS ENTITLED "RETENTION REGISTER STANDING" AND
PARAGRAPH (A) THEREOF REFERS TO "RETENTION STANDING," IT IS CLEAR FROM
THE RECORD BEFORE THE AUTHORITY THAT THE UNION INTENDED (AND THE AGENCY
CONSTRUED) PARAGRAPH (A) TO ADDRESS ONLY TECHNICIANS' RETENTION RATINGS
(DETERMINED BY COMBINING THE POINT TOTALS FROM THE ANNUAL TECHNICIAN AND
MILITARY PERFORMANCE APPRAISALS) RATHER THAN THEIR RETENTION STANDING
(WHICH INVOLVED PLACING TECHNICIANS, ACCORDING TO THEIR RELATIVE
RETENTION RATING, IN ONE OF THREE DESCENDING TENURE GROUPS BASED UPON
WHETHER THEIR STATUS IS "CAREER/PERMANENT," "TEMPORARY/PROBATIONARY," OR
"INDEFINITE"). THEREFORE, THE PROPOSAL IS CONSTRUED IN A MANNER
CONSISTENT WITH THE PARTIES' MUTUAL UNDERSTANDING.
/6/ 32 U.S.C. 709(E) PROVIDES IN RELEVANT PART AS FOLLOWS:
(E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND UNDER REGULATIONS
PRESCRIBED BY THE
SECRETARY CONCERNED--
. . . .
(4) A REDUCTION IN FORCE, REMOVAL, OR AN ADVERSE ACTION INVOLVING
DISCHARGE FROM TECHNICIAN
EMPLOYMENT, SUSPENSION, FURLOUGH WITHOUT PAY, OR REDUCTION IN RANK OR
COMPENSATION SHALL BE
ACCOMPLISHED BY THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
. . . .
/7/ SECTION 10 OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968
PROVIDES:
REGULATIONS PRESCRIBED BY THE SECRETARY OF THE ARMY AND THE SECRETARY
OF THE AIR FORCE
UNDER THIS ACT SHALL BE APPROVED BY THE SECRETARY OF DEFENSE AND
SHALL, SO FAR AS PRACTICABLE,
BE UNIFORM.
/8/ 32 U.S.C. 709(F) PROVIDES:
(F) SECTION 2108, 3502, 7511 AND 7512 OF TITLE 5 UNITED STATES CODE,
(ESTABLISHING
ENTITLEMENT TO VETERANS' PREFERENCE AND EFFECT OF SUCH ENTITLEMENT IN
RIF AND ADVERSE ACTIONS)
DO NOT APPLY TO ANY PERSON EMPLOYED UNDER THIS SECTION.
/9/ 32 U.S.C. 709(B) PROVIDES IN RELEVANT PART AS FOLLOWS:
(A) TECHNICIAN . . . SHALL, WHILE SO EMPLOYED, BE A MEMBER OF THE
NATIONAL GUARD AND HOLD
THE MILITARY GRADE SPECIFIED BY THE SECRETARY CONCERNED FOR THAT
POSITION.
32 U.S.C. 709(E) PROVIDES IN RELEVANT PART AS FOLLOWS:
. . . .
(1) A TECHNICIAN WHO IS EMPLOYED IN A POSITION IN WHICH NATIONAL
GUARD MEMBERSHIP IS
REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO IS SEPARATED FROM THE
NATIONAL GUARD OR CEASES
TO HOLD THE MILITARY GRADE SPECIFIED FOR HIS POSITION . . . SHALL BE
PROMPTLY SEPARATED FROM
HIS TECHNICIAN EMPLOYMENT BY THE ADJUTANT GENERAL OF THE JURISDICTION
CONCERNED(.)
/10/ IN SO CONCLUDING, HOWEVER, THE AUTHORITY MAKES NO JUDGMENT AS TO
THE MERITS OF THE PROPOSAL.
/11/ SECTION 7103(A)(14) OF THE STATUTE (92 STAT. 1192) PROVIDES IN
PERTINENT PART:
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH
TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--
. . . .
(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE(.)
/12/ THE EXCLUSION OF "MATTERS . . . SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE" (SUCH AS THE MILITARY RELATIONSHIP OF NATIONAL GUARD
TECHNICIANS IN THE INSTANT CASE) FROM THE DEFINITION OF "CONDITIONS OF
EMPLOYMENT," WHICH EXCLUSION ORIGINATED IN SECTION 7103(A)(14)(C) OF THE
HOUSE COMMITTEE BILL (H.R. 11280), WAS DESCRIBED IN THE HOUSE COMMITTEE
REPORT AS "REMOVED FROM THE OBLIGATION TO BARGAIN." SEE H.R. REP NO.
95-1403, 95TH CONG., 2D SESS. 41(1978). SEE ALSO THE STATEMENT OF
CONGRESSMAN CLAY OF MISSOURI AND CONGRESSMAN FORD OF MICHIGAN,
PROPONENTS OF THE HOUSE BILL, AT 124 CONG.REC.H 9638 AND 9650 (DAILY ED.
SEPT. 13, 1978), RESPECTIVELY.
/13/ IN REACHING THE FOREGOING CONCLUSIONS, THE AUTHORITY FULLY
CONSIDERED THE AGENCY'S STATEMENT OF POSITION FILED PURSUANT TO SECTION
7117(C)(3) OF THE STATUTE AND SECTION 2424.6 OF THE AUTHORITY'S RULES
AND REGULATIONS. CONTRARY TO THE UNION'S CONTENTIONS, SUCH STATEMENT OF
POSITION WAS FILED WITHIN 30 DAYS OF THE UNION'S COMPLETION OF ITS
PETITION FOR REVIEW HEREIN AND WAS THEREFORE TIMELY.