[ v01 p207 ]
01:0207(26)CA
The decision of the Authority follows:
1 FLRA No. 26
VETERANS ADMINISTRATION
REGIONAL OFFICE
BUFFALO, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3314, AFL-CIO
Complainant
Assistant Secretary
Case No. 35-4567(CA)
DECISION AND ORDER
ON JANUARY 29, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN
THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, AND
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 35-4567(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., APRIL 27, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER, III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
JOHN C. DENOTO, ESQ.
ASSISTANT DISTRICT COUNSEL
OFFICE OF THE DISTRICT COUNSEL OF
V.A. REGIONAL OFFICE
111 WEST HURON STREET
BUFFALO, N.Y. 14202
FOR THE RESPONDENT
JAMES D. VINOLUS, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3314
111 WEST HURON STREET
BUFFALO, N.Y. 14202
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
CASE NO. 35-4567(CA)
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON NOVEMBER 1,
1978 BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, NEW YORK REGION, A HEARING
WAS HELD BEFORE THE UNDERSIGNED ON DECEMBER 7, 1978 AT BUFFALO, NEW
YORK.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER). IT WAS BASED ON A COMPLAINT FILED ON MAY 2,
1977 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3314
(HEREIN CALLED THE COMPLAINANT) AGAINST VETERANS ADMINISTRATION REGIONAL
OFFICE, BUFFALO, NEW YORK (HEREIN CALLED THE RESPONDENT). THE SAID
COMPLAINT ALLEGED VIOLATIONS BY RESPONDENT OF SECTIONS 19(A)(1), (2),
(5) AND (6) OF THE ORDER. ON OCTOBER 21, 1977 THE REGIONAL
ADMINISTRATOR DISMISSED THE COMPLAINT ON THE GROUND THAT NO REASONABLE
BASIS THEREFOR HAD BEEN ESTABLISHED. THE ASSISTANT SECRETARY DENIED A
REQUEST FOR REVIEW ON JULY 28, 1978 WITH RESPECT TO THE 19(A)(2) AND (5)
ALLEGATIONS. HOWEVER, HE REMANDED THE CASE TO THE REGIONAL OFFICE FOR
FURTHER INVESTIGATION WITH RESPECT TO THE 19(A)(1) AND (6) ALLEGATIONS.
THE NOTICE OF HEARING IS PREDICATED ON AN ALLEGED UNILATERAL ACTION
TAKEN BY RESPONDENT WITHOUT CONSULTING OR CONFERRING WITH COMPLAINANT.
COMPLAINANT CONTENDS THE EMPLOYER CHANGED ITS PAST PRACTICE OF PROMOTING
EMPLOYEES; THAT, ON OR ABOUT MARCH 11, 1977, RESPONDENT ALTERED ITS
PRACTICE, IN THE SELECTION OF EMPLOYEES FOR PROMOTION, BY HAVING THE
CANDIDATES FOR THE POSITION OF GS-11 SENIOR ADJUDICATORS INTERVIEWED BY
ONE INDIVIDUAL AND THEN SELECTED BY A DIFFERENT MANAGEMENT
REPRESENTATIVE; THAT THE PAST PRACTICE HAS ALWAYS BEEN FOR THE SAME
SELECTING OFFICIAL TO ALSO INTERVIEW THE CANDIDATES; THAT BY SO
INSTITUTING THIS UNILATERAL CHANGE, RESPONDENT VIOLATED SECTIONS
19(A)(1) AND (6) OF THE ORDER.
RESPONDENT FILED A RESPONSE TO THE COMPLAINT, DATED MAY 31, 1977, IN
WHICH IT DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICES.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. NEITHER PARTY FILED A BRIEF WITH THE
UNDERSIGNED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN, COMPLAINANT HAS BEEN, AND STILL IS,
THE EXCLUSIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S NON SUPERVISORY
EMPLOYEES.
2. A MERIT PROTECTION PLAN GOVERNING RESPONDENT'S UNIT EMPLOYEES
BECAME EFFECTIVE IN MARCH 1976. THIS PLAN WHICH WAS IN EFFECT IN MARCH
1977, PROVIDED, UNDER PARAGRAPH 15A, AS FOLLOWS:
"DIVISION CHIEFS HAVE THE SOLE AUTHORITY AND RESPONSIBILITY FOR THE
SELECTION OF CANDIDATES
TO BE PROMOTED. WHENEVER POSSIBLE, ALL CANDIDATES REFERRED FOR
SELECTION MUST BE INTERVIEWED
BY THE SELECTING OFFICIAL OR DESIGNEE. NO MORE THAN ONE LOWER LEVEL
SUPERVISOR MAY BE PRESENT
DURING THE INTERVIEW. AN EMPLOYEE WHO HAS APPLIED FOR PROMOTION
CONSIDERATION AND PLANS TO BE
AWAY ON LEAVE SHOULD MAKE ARRANGEMENTS FOR THE INTERVIEW BEFORE GOING
ON LEAVE. EMPLOYEES WHO
ARE NOT REASONABLY AVAILABLE FOR INTERVIEW WILL BE CONSIDERED ON THE
BASIS OF INFORMATION
AVAILABLE TO THE SELECTING OFFICIAL IN THE EMPLOYEE'S PERSONNEL
FOLDER . . ."
3. ON DECEMBER 31, 1976 THE ADJUDICATION OFFICER /2/ IN THE
RESPONDENT'S BUFFALO REGION RETIRED FROM ACTIVE DUTY. IN JANUARY 1977,
/3/ IGNATIUS LASPESA, WHO WAS A SECTION CHIEF, WAS APPOINTED ACTING
ADJUDICATION OFFICER, AND ROSE COLUMBO, A SECTION CHIEF, WAS DESIGNATED
BY RESPONDENT AS ACTING ASSISTANT ADJUDICATION OFFICER. IN FEBRUARY,
JAMES E. SCHULTZ WAS APPOINTED ADJUDICATION OFFICER AND HE REPORTED TO
THE REGIONAL OFFICE IN THE BEGINNING OF THE FOLLOWING MONTH.
4. IN MARCH RESPONDENT UNDERTOOK TO PROMOTE FOUR GS-9 ADJUDICATORS
TO GS-11 SERVICE ADJUDICATORS. THERE WERE APPROXIMATELY TWELVE
CANDIDATES FROM WHICH THE SELECTION OF FOUR WOULD BE MADE. IN VIEW OF
THE FACT THAT HE WAS NEW TO THE OFFICE, ADJUDICATION OFFICER SCHULTZ
DECIDED THAT IF HE INTERVIEWED THE CANDIDATES, HE MIGHT BE IMPRESSED BY
THEIR PERSONALITIES RATHER THAN THEIR TECHNICAL KNOWLEDGE. HENCE
SCHULTZ INSTRUCTED LASPESA TO CONDUCT THE INTERVIEWS WITH ROSE COLUMBO.
HE ALSO STATED THAT THEY WOULD MEET WITH THE SUPERVISOR THEREAFTER AND
DISCUSS THE CANDIDATES. THEREAFTER, SCHULTZ WOULD SELECT THE FOUR GS-11
SERVICE ADJUDICATORS. SCHULTZ ALSO TOLD HIM TO ADVISE THE UNION
REPRESENTATIVES OF THE PROPOSED PROCEDURE.
5. IN PROMOTING EMPLOYEES PRIOR TO MARCH, THE RESPONDENT HAD
FOLLOWED THE PRACTICE OF HAVING EACH CANDIDATES INTERVIEWED BY THE
ADJUDICATION OFFICER AND ANOTHER SUPERVISOR OFFICIAL. FOLLOWING THE
INTERVIEWS, THE SELECTION OF SUCCESSFUL CANDIDATES WOULD BE MADE BY THE
DIVISION CHIEF (ADJUDICATION OFFICER).
6. ON MARCH 11 LASPESA AND COLUMBO MET WITH JAMES VINOLUS, CLAIMS
EXAMINER AND PRESIDENT OF COMPLAINANT AND JACK NIZIALEK, GS-9
ADJUDICATOR AND VICE-PRESIDENT OF THE UNION. LASPESA ADVISED THE TWO
UNION REPRESENTATIVE THAT SINCE SCHULTZ DID NOT KNOW MANY EMPLOYEES HE
AND COLUMBO WOULD INTERVIEW THE CANDIDATES FOR THE POSITION OF GS-11
SENIOR ADJUDICATORS, AND THAT THE NEW ADJUDICATION OFFICER WOULD SELECT
FOUR OF THE INDIVIDUALS TO FILL THIS POSITION AFTER GETTING INPUT FROM
THE SUPERVISORS. BOTH VINOLUS AND NIZIALEK, WHO WERE ALSO CANDIDATES
FOR THE PROMOTION, AGREED THIS WAS A GOOD IDEA AND ASSENTED TO THE
PROCEDURE. /4/
7. SUBSEQUENT TO THE DISCUSSION WITH VINOLUS AND NIZIALEK, ACTING
ADJUDICATION OFFICER LASPESA TOGETHER WITH ACTING ASSISTANT ADJUDICATION
OFFICER ROSE COLUMBO INTERVIEWED ALL THE CANDIDATES FOR THE GS-11
POSITION. IN EACH INSTANCE IT WAS EXPLAINED TO THEM THAT THE SELECTION
WOULD BE MADE BY THE NEW ADJUDICATION OFFICER AT A LATER DATE.
8. THEREAFTER SCHULTZ DID, AFTER CONFERRING WITH THE INTERVIEWS AND
UNIT SUPERVISORS, SELECT THE FOUR INDIVIDUALS WHO BECAME GS-11 SENIOR
ADJUDICATORS. /5/
9. A NEW MERIT PROMOTION PLAN, DATED FEBRUARY 16, 1978, PROVIDED
UNDER SECTION 15 AS FOLLOWS:
"DIVISION CHIEFS HAVE THE SOLE AUTHORITY AND RESPONSIBILITY FOR THE
SELECTION OF CANDIDATES
TO BE PROMOTED. LOWER LEVEL SUPERVISORS IN THE CHAIN OF COMMAND FOR
THE POSITION TO BE FILLED
MAY BE ALLOWED TO INTERVIEW CANDIDATES AND OFFER RECOMMENDATIONS. IN
NO INSTANCE WILL ANY
OTHER SUPERVISORY PERSONNEL HAVE ANY INVOLVEMENT WITH THE SELECTION
PROCESS. IN THE ABSENCE
OF THE DIVISION CHIEF, THE ACTING DIVISION CHIEF WILL ASSUME THE SOLE
AUTHORITY AND
RESPONSIBILITY FOR THE SELECTION OF CANDIDATES. ALL CANDIDATES
REFERRED FOR SELECTION MUST BE
INTERVIEWED BY THE SELECTING OFFICIAL . . ."
CONCLUSIONS
IT HAS BEEN WELL ESTABLISHED THAT AN EMPLOYER MAY NOT UNILATERALLY
CHANGE WORKING CONDITIONS WITHOUT MEETING AND CONFERRING WITH THE
BARGAINING REPRESENTATIVE WITH RESPECT THERETO. THUS, WHERE MANAGEMENT
CHANGES A PAST POLICY OR PRACTICE WHICH HAS MATURED INTO A TERM AND
CONDITION OF EMPLOYMENT, IT MUST BARGAIN WITH THE UNION CONCERNING THE
IMPLEMENTATION THEREOF. LOUISIANA ARMY NATIONAL GUARD, NEW ORLEANS,
LOUISIANA, A/SLMR 1117; DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR 1106.
IN THE CASE AT BAR COMPLAINANT INSISTS THAT RESPONDENT HAS, IN FACT,
EFFECTED A CHANGE IN ITS PROMOTION POLICY WHEN IT DEPARTED FROM THE
PRACTICE OF HAVING THE SAME PERSON, THE ADJUDICATION OFFICER, BOTH
INTERVIEW THE CANDIDATES FOR PROMOTION AND ALSO MAKE THE SELECTION OF
THOSE WHO WOULD FILL THE POSITION. MOREOVER, IT ARGUES THAT THE CHANGE
WAS UNILATERAL IN NATURE AND IMPLEMENTED WITHOUT CONFERRING WITH
COMPLAINANT AS REQUIRED UNDER THE ORDER. THE UNION CONTENDS THAT THE
GS-9 ADJUDICATORS, WHO WERE CANDIDATES FOR PROMOTION TO GS-11 SENIOR
ADJUDICATORS, SHOULD NOT, UNDER ESTABLISHED PRACTICE, HAVE BEEN
INTERVIEWED BY LASPESA AND THEN SELECTED BY ADJUDICATION OFFICER
SCHULTZ. MOREOVER, IT URGES THAT THE PARTIES AGREED ON MARCH 11 THE
INTERVIEWING AND SELECTING WOULD BE CONDUCTED BY LASPESA.
UNDER THE 1976 MERIT PROMOTION PLAN, WHICH WAS EFFECTIVE ON MARCH 11,
1977, IT WAS PROVIDED THAT CANDIDATES REFERRED FOR SELECTION MUST BE
INTERVIEWED BY THE SELECTING OFFICIAL OR HIS DESIGNEE. THIS PARTICULAR
PLAN, BY ITS LANGUAGE, AUTHORIZES THE SELECTING OFFICIAL TO DESIGNATE
ANOTHER INDIVIDUAL TO CONDUCT THE INTERVIEWS OF THOSE BEING CONSIDERED
FOR PROMOTION. NEVERTHELESS RECORD FACTS DO REFLECT THAT MANAGEMENT
HAD, WITH THE APPROVAL OF THE BARGAINING REPRESENTATIVE, ADOPTED THE
POLICY OF HAVING THE SAME PERSON (USUALLY THE ADJUDICATION OFFICER)
CONDUCT THE INTERVIEW AND MAKE THE SELECTION. ACCORDINGLY, THE DECISION
TO SEPARATE THESE FUNCTIONS, IN RESPECT TO THE PROMOTION OF FOUR
EMPLOYEES TO THE POSITION OF GS-11 SENIOR ADJUDICATORS, DID CONSTITUTE A
CHANGE IN PAST PRACTICE REGARDING THE PROCEDURE WHEN PROMOTING
EMPLOYEES.
DESPITE THE FOREGOING DEVIATION FROM PAST PRACTICE, I AM NOT
PERSUADED THAT MANAGEMENT VIOLATED ITS OBLIGATION TO MEET AND CONFER
WITH THE UNION. WHILE THERE MAY HAVE BEEN A MISUNDERSTANDING ON THE
PART OF VINOLUS AND NIZIALEK AS TO THE PLANNED PROCEDURE, I AM SATISFIED
THAT LASPESA INFORMED THEM THAT MANAGEMENT WANTED THE INTERVIEW
CONDUCTED BY HIM AND COLUMBO AND THE SELECTION TO BE MADE BY
ADJUDICATION OFFICER SCHULTZ. MOREOVER, CONSENT THERETO WAS VOICED BY
THE UNION REPRESENTATIVES DURING THE MEETING BETWEEN THE PARTIES. /6/
THUS, I CONCLUDE THAT BY RESPONDENT'S CONFERRING WITH COMPLAINANT AS TO
THE PROCEDURE TO BE FOLLOWED TOGETHER, WITH AN ASSENT BY THE UNION, THE
EMPLOYER HAD FULFILLED ITS OBLIGATION TO NEGOTIATE WITH THE BARGAINING
REPRESENTATIVE TO THE EXTENT REQUIRE. SEE SOCIAL SECURITY
ADMINISTRATION, CINCINNATI DISTRICT OFFICE, CINCINNATI, OHIO, A/SLMR
1124.
NOTE IS TAKEN THAT A NEW MERIT PROMOTION PLAN BECAME EFFECTIVE IN
1978 WHICH ELIMINATED THE TERM "DESIGNEE" FROM THE LANGUAGE IN SECTION
15. THEREFORE, IT MANDATED THAT THE SELECTING OFFICIAL HIMSELF
INTERVIEW THE CANDIDATES FOR PROMOTION. IT ALSO VESTED THE ACTING
DIVISION CHIEF, IN THE ABSENCE OF THE DIVISION CHIEF, WITH THE SOLE
AUTHORITY TO SELECT CANDIDATES FOR PROMOTION. THESE NOTIFICATIONS LEND
CREDENCE TO THE CONCLUSION THAT, DESPITE THE PAST PRACTICE RE
PROMOTIONS, THE PARTIES DIFFERED AS TO WHETHER THE INTERVIEWER AND
SELECTOR WERE REQUIRED TO BE ONE AND THE SAME PERSON. ACCORDINGLY, THE
DIFFERING INTERPRETATIONS OF THIS REQUIREMENT UNDER THE ORIGINAL PLAN
WOULD NEGATE, IN MY OPINION, ANY BAD FAITH IN THE PART OF RESPONDENT IN
IMPLEMENTING THE PROCEDURE SUGGESTED BY SCHULTZ. /7/ SINCE I DO NOT
CONCLUDE THAT THE ARRANGEMENT WAS MADE FOR LASPESA TO INTERVIEW AND
SELECT, I FURTHER DECIDE THAT RESPONDENT DID NOT BREACH AN AGREEMENT IN
THE REGARD SO AS TO MANIFEST BAD FAITH AS ALLEGED BY COMPLAINANT.
ORDER
IT HAVING BEEN FOUND THAT RESPONDENT ENGAGED IN NO CONDUCT VIOLATIVE
OF SECTIONS 19(A)(1) OR (6) OF THE EXECUTIVE ORDER, IT IS HEREBY ORDERED
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: 22 JAN 1979
WASHINGTON, D.C.
WN:MJM
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR THE APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR
THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD
ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ THE TITLE IS USED INTERCHANGEABLY WITH "DIVISION CHIEF."
/3/ ALL DATES HEREINAFTER MENTIONED ARE IN 1977 UNLESS OTHERWISE
INDICATED.
/4/ THE VERSION GIVEN BY THE UNION OFFICIALS, WHICH IS NOT ACCEPTED,
DIFFERS SHARPLY FROM THE TESTIMONY OF LASPESA AND COLUMBO.
COMPLAINANT'S WITNESSES AVERRED THAT LASPESA NOTIFIED THEM AT THIS
MEETING THAT HE WOULD DO BOTH THE INTERVIEWING AND SELECTING OF THE
SENIOR ADJUDICATORS. MOREOVER, THEY CONTEND THIS CONFORMED TO THE MERIT
PROMOTION PLAN AND THAT, UNDER THIS PLAN, NO CONSENT FROM THE UNION WAS
REQUIRED.
/5/ SINCE MARCH RESPONDENT HAS ADHERED TO THE PRACTICE OF HAVING THE
SAME INDIVIDUAL INTERVIEW CANDIDATES FOR PROMOTION AND SELECT THOSE TO
BE PROMOTED.
/6/ A CONCURRENCE BY THE UNION IN THE PROPOSED METHOD OF PROMOTION
WOULD, IN EFFECT, CONSTITUTE A WAIVER OF ADHERENCE TO THE PAST PRACTICE.
SEE VETERANS ADMINISTRATION CENTER, BATH, N.Y., A/SLMR 335.
/7/ CF. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, WESTERN REGION, A/SLMR 930 WHERE DIFFERING AND ARGUABLE
CONTRACT INTERPRETATIONS, AS OPPOSED TO CLEAR BREACH OF CONTRACT,
MILITATED AGAINST FINDING A VIOLATION OF THE ORDER.