[ v03 p8 ]
03:0008(2)CA
The decision of the Authority follows:
3 FLRA No. 2 PENNSYLVANIA ARMY AND AIR NATIONAL GUARD Respondent and ASSOCIATION OF CIVILIAN TECHNICIANS Complainant Assistant Secretary Case No. 20-06580(CA) DECISION AND ORDER ON AUGUST 27, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN ISSUED HIS RECOMMENDED 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. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE RESPONDENT FILED A RESPONSE TO THE COMPLAINANT'S EXCEPTIONS. 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 RULES AND REGULATIONS (44 F.R. 44741, JULY 30, 1979). 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 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS AND RESPONDENT'S RESPONSE TO THE EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION. /1/ IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE NO. 20-06580(CA) BE, AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., APRIL 4, 1980 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY DENNIS T. GUISE, ESQUIRE ASSISTANT ATTORNEY GENERAL COMMONWEALTH OF PENNSYLVANIA FORT INDIANTOWN GAP ANNVILLE, PENNSYLVANIA 17003 FOR THE RESPONDENT LEONARD SPEAR, ESQUIRE MERANZE, KATZ, SPEAR AND WILDERMAN LEWIS TOWER BUILDING-- 12TH FLOOR N.E. CORNER, 15TH AND LOCUST STREETS PHILADELPHIA, PENNSYLVANIA 19102 FOR THE COMPLAINANT BEFORE: ROBERT J. FELDMAN ADMINISTRATIVE LAW JUDGE RECOMMENDED DECISION THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING OF RECORD WAS HELD PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER REFERRED TO AS "THE ORDER") AND 29 CFR PART 203. THE DECISION AND RECOMMENDATION THAT FOLLOWS IS ISSUED FOR THE FEDERAL LABOR RELATIONS AUTHORITY IN ACCORDANCE WITH THE TRANSITION RULES AND REGULATIONS PUBLISHED IN THE FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, PP. 5-8. STATEMENT OF THE CASE THE COMPLAINANT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 19(A)(1), (2), (3), (5) AND (6) OF THE ORDER IN THAT IT PERMITTED REPRESENTATIVES OF THE NATIONAL GUARD ASSOCIATION INSURANCE TRUST AND THE NORTHWESTERN LIFE INSURANCE COMPANY TO CONDUCT MEETINGS AND SELL THEIR INSURANCE TO THE PERSONNEL EMPLOYED BY RESPONDENT. IT IS FURTHER ALLEGED THAT THE PROFITS FROM THE SALE OF SUCH INSURANCE GO TO THE NATIONAL GUARD ASSOCIATION, WHICH, HAS TAKEN THE PUBLIC POSITION THAT RESPONDENT'S TECHNICIANS SHOULD BE REMOVED FROM THE SCOPE AND PROVISIONS OF THE ORDER. NONE OF THE DOCUMENTS TRANSMITTED TO THIS OFFICE BY THE REGIONAL ADMINISTRATOR CONTAINS ANY REFERENCE TO WHAT DISPOSITION, IF ANY, WAS MADE OF THE ALLEGED VIOLATIONS OF SECTIONS 19(A)(2), (3) OR (5) OF THE ORDER. IN HIS NOTICE OF HEARING, HOWEVER, THE REGIONAL ADMINISTRATOR REFERS FOR HEARING ONLY THE ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND (6). INFERENTIALLY, THEREFORE, IT APPEARS THAT SOME PORTIONS OF THE COMPLAINT WERE WITHDRAWN OR SETTLED, OR WERE DISMISSED BY THE REGIONAL ADMINISTRATOR, OR PERHAPS SEVERED AND REFERRED BY HIM TO THE ASSISTANT SECRETARY UPON STIPULATED FACTS. WITH RESPECT TO THE ALLEGED VIOLATION OF SECTION 19(A)(3), IT IS APPARENT FROM THE COMMENTS OF COUNSEL AND FROM A FOOTNOTE IN RESPONDENT'S POST-HEARING BRIEF THAT SO MUCH OF THE COMPLAINT AS CHARGED RESPONDENT WITH SPONSORING, CONTROLLING OR ASSISTING A LABOR ORGANIZATION WAS DISMISSED BY THE REGIONAL ADMINISTRATOR AND NO REQUEST FOR REVIEW THEREOF WAS MADE. IN ANY EVENT, I CONCLUDE THAT OTHER ALLEGED VIOLATIONS HAVE BEEN DISPOSED OF IN ACCORDANCE WITH THE PROVISIONS OF 29 CFR 203.7 AND 203.8, AND THAT THE SOLE QUESTION REFERRED FOR MY DETERMINATION IS WHETHER THE FACTS AND CIRCUMSTANCES ESTABLISHED AT THE HEARING CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OR (6), OR BOTH. FINDINGS OF FACT COMPLAINANT IS THE DULY RECOGNIZED EXCLUSIVE BARGAINING AGENT FOR CIVILIAN TECHNICIANS IN RESPONDENT'S EMPLOY. FOR SOME YEARS, MANY OF ITS MEMBERS (AND OTHER EMPLOYEES IN THE UNIT) HAD PARTICIPATED IN A VOLUNTARY INSURANCE PROGRAM KNOWN AS THE TECHNICIAN PROTECTION PLAN, WHICH WAS ADMINISTERED UNDER THE AUSPICES OF THE NATIONAL GUARD ASSOCIATION OF THE UNITED STATES (NGAUS) INSURANCE TRUST, WITH THE LIFE INSURANCE COMPANY OF NORTH AMERICA AS THE CARRIER. RESPONDENT PERMITTED PREMIUMS UNDER THE PLAN TO BE PAID BY PAYROLL DEDUCTIONS, BUT OTHERWISE HAD NO VOICE IN ITS MANAGEMENT OR ADMINISTRATION. NGAUS IS A NATION-WIDE ORGANIZATION OF NATIONAL GUARD OFFICERS. AMONG ITS PURPOSES ARE TO PROTECT AND PROMOTE THE INTERESTS OF GUARDSMEN THROUGHOUT THE COUNTRY AND TO MAKE THEIR VIEWS KNOWN TO APPROPRIATE FEDERAL AGENCIES AND OFFICIALS. IN THE CONDUCT OF ITS LEGISLATIVE PROGRAM, IT ACTIVELY SUPPORTED A BILL (S. 274) IN THE 95TH CONGRESS TO PROHIBIT UNION ORGANIZATION AND MEMBERSHIP IN THE ARMED FORCES, AND ITS EXECUTIVE VICE-PRESIDENT TESTIFIED ON ITS BEHALF BEFORE A SUBCOMMITTEE OF THE HOUSE ARMED SERVICES COMMITTEE WITH PARTICULAR REFERENCE TO ITS ADVOCACY OF THE PROVISIONS THEREIN (LATER DELETED BY AMENDMENT) PROHIBITING UNIONIZATION OF NATIONAL GUARD TECHNICIANS. LISTED AMONG THE ASSETS OF NGAUS IS A RESTRICTED FUND KNOWN AS THE CAPITAL IMPROVEMENT FUND, WHICH WAS ESTABLISHED TO PROVIDE FOR MAINTENANCE AND IMPROVEMENT OF THE NATIONAL GUARD MEMORIAL BUILDING IN WASHINGTON. ANOTHER RESTRICTED FUND CALLED THE INSURANCE RESERVE CONTINGENCY FUND IS USABLE SOLELY FOR THE BENEFIT OF INSUREDS AND IS NOT AVAILABLE FOR ANY OTHER PURPOSE. UNDER DATE OF JULY 28, 1977, RESPONDENT'S PERSONNEL OFFICER, COL. NILES, ADVISED THE TECHNICIAN PERSONNEL OFFICE (TPO) THAT ON AUGUST 1, 1977, THE INSURER OR CARRIER FOR THE TECHNICIAN PROTECTION PLAN WOULD BE CHANGED FROM L.I.N.A. TO NORTHWESTERN NATIONAL LIFE INS. CO., BUT FOR THE PRESENT, COVERAGE WOULD NOT BE INTERRUPTED. ON OCTOBER 21, 1977, COL. NILES ADVISED TPO AS FOLLOWS: (1) DUE TO THE CHANGE OF CARRIERS, EACH TECHNICIAN WOULD HAVE TO EXECUTE A NEW AUTHORIZATION FORM TO ESTABLISH THE COVERAGE DESIRED; (2) IN ADDITION TO THE TERM LIFE AND DISABILITY INCOME UNDER THE OLD PLAN, PERMANENT LIFE INSURANCE WOULD NOW BE AVAILABLE; AND (3) BETWEEN OCTOBER 31 AND NOVEMBER 11, 1977, BRIEFINGS WOULD BE HELD AT NATIONAL GUARD INSTALLATIONS THROUGHOUT THE STATE AS PER ATTACHED SCHEDULE, DURING WHICH REPRESENTATIVES OF NORTHWESTERN NATIONAL LIFE AND OF TPO WOULD EXPLAIN THE COVERAGES AVAILABLE. AFTER THE BRIEFINGS WERE INITIATED, COL. NILES RECEIVED NOTICE OF A UNION OBJECTION TO HOLDING THEM WITHOUT PRIOR CONSULTATION. NO ACTION WAS TAKEN ON THE OBJECTION, HOWEVER, AND THE BRIEFINGS WERE HELD AS SCHEDULED. ALL CIVILIAN TECHNICIANS WERE REQUESTED BY TPO TO ATTEND THE BRIEFINGS, WHICH WERE HELD IN VARIOUS FACILITIES OF RESPONDENT DURING WORKING HOURS SO AS TO FACILITATE PARTICIPATION BY TECHNICIANS ASSIGNED TO EVERY GROUP AT EVERY LOCATION. UNION OFFICIALS WERE AMONG THOSE WHO ATTENDED. AT EACH SESSION, WHICH WAS CONDUCTED BY A NORTHWESTERN NATIONAL LIFE REPRESENTATIVE, ASSISTED BY ONE OR TWO NON-COMMISSIONED OFFICERS FROM TPO, A SLIDE PRESENTATION WAS SHOWN AND THE DETAILS OF THE INSURANCE AVAILABLE WERE EXPLAINED. THE SLIDE PRESENTATION, WHICH HAD BEEN PRODUCED FOR AND AT THE DIRECTION OF NGAUS, WAS TO ALL INTENTS AND PURPOSES A "COMMERCIAL" FOR NGAUS AND ITS TECHNICIAN PROTECTION PLAN. IT WAS, OF COURSE, EXTREMELY LAUDATORY OF THE WORK AND ACHIEVEMENTS OF NGAUS ON BEHALF OF GUARDSMEN AND TECHNICIANS, NO MENTION BEING MADE OF ANY EFFORTS OR ACCOMPLISHMENTS OF COMPLAINANT OR ANY OTHER ORGANIZATION IN THE INTERESTS OF THE SAME CONSTITUENCY. WITH RESPECT TO THE COVERAGE OFFERED, IT WAS MADE CLEAR AT EACH BRIEFING THAT BESIDES THE ADDITION OF OPTIONAL PERMANENT LIFE INSURANCE FOR TECHNICIANS AND THEIR FAMILIES, TWO SIGNIFICANT CHANGES WERE MADE IN THE PROGRAM: (A) PREMIUMS WERE INCREASED; AND (B) INSTEAD OF EXPERIENCE CREDITS (I.E., DIVIDENDS) BEING DISTRIBUTED TO PARTICIPANTS, THEY WOULD BE PAID TO THE HISTORICAL SOCIETY OF THE MILITIA AND NATIONAL GUARD (HEREAFTER "HISTORICAL SOCIETY"). THE HISTORICAL SOCIETY IS A NON-PROFIT CHARITABLE AND EDUCATIONAL CORPORATION, ORGANIZED IN 1975 UNDER THE LAWS OF THE DISTRICT OF COLUMBIA FOR THE DECLARED PURPOSE OF FOSTERING AND ENCOURAGING AN ENLIGHTENED PUBLIC APPRECIATION OF THE CONTRIBUTIONS OF THE AMERICAN MILITIA IN THE FOUNDING OF THIS NATION AND ITS DEFENSE AGAINST ENEMIES FOREIGN AND DOMESTIC, AND OF THE UNIQUE STATUS OF THE NATIONAL GUARD, UNDER FEDERAL CONTROL AS RESERVE COMPONENTS OF THE ARMY AND AIR FORCE IN TIME OF WAR OR NATIONAL EMERGENCY, AND UNDER STATE CONTROL IN THEIR MILITIA STATUS AT ALL OTHER TIMES. ITS PRIMARY FUNCTION IS TO RAISE FUNDS FOR THE MAINTENANCE AND PRESERVATION OF THE NATIONAL GUARD MEMORIAL BUILDING IN WASHINGTON. AT BRIEFING SESSIONS, TECHNICIANS WERE URGED TO SIGN APPLICATIONS FOR INSURANCE, OR IN THE ALTERNATIVE, TO SIGN A DECLINATION FORM. NO ATTENDANCE WAS TAKEN, BUT A RECORD WAS MADE OF THE APPLICATIONS AND DECLINATION FORMS THEREAFTER RECEIVED. SUBSEQUENTLY, THOSE WHO HAD SUBMITTED NEITHER WERE NOTIFIED THAT THEY MUST SUBMIT ONE OR THE OTHER. CONCLUSIONS OF LAW FROM THE FOREGOING FACTS, THE CONCLUSION IS IRRESISTIBLE THAT RESPONDENT SPONSORED THE BRIEFINGS AND ASSISTED NGAUS IN ITS PROMOTION OF ITS TECHNICIAN PROTECTION PLAN. IT APPEARS, HOWEVER, THAT THE COMPLAINT WAS DISMISSED WITH RESPECT TO SECTION 19(A)(3) ON THE GROUND THAT NGAUS IS NOT A LABOR ORGANIZATION AS DEFINED BY THE ORDER, CITING FEDERAL AVIATION ADMINISTRATION, ATLANTA ATC TOWER, A/SLMR NO. 300 (1973). MOREOVER, THE CIRCUMSTANCES OF THIS CASE, WHILE INDICATING A CALLOUSED DISREGARD OF UNION SENSIBILITIES, MIGHT NOT WARRANT A FINDING THAT AIDING THE SOLICITATION OF THE INSURANCE IN QUESTION IS PER SE INCONSISTENT WITH THE PURPOSES OF THE ORDER. SEE DEPARTMENT OF THE AIR FORCE, GRISSOM AIR FORCE BASE, PERU, INDIANA, FLRC NO. 77A-77, A/SLMR NO. 1057(1978). IN CONSIDERING WHETHER RESPONDENT INTERFERED WITH, RESTRAINED OR COERCED AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER (SECTION 19(A)(1)), ONE MUST BEAR IN MIND THAT NEITHER PARTICIPATION IN THE PLAN NOR ATTENDANCE AT THE BRIEFINGS WAS COMPULSORY. THOUGH IT IS REASONABLE TO INFER FROM THE EVIDENCE THAT RESPONDENT URGED ALL TECHNICIANS TO DO BOTH, IT HAS NOT BEEN ESTABLISHED THAT ANYONE WAS ORDERED TO DO EITHER OR THAT ANY ADVERSE ACTION WAS TAKEN WITH RESPECT TO ANY TECHNICIAN WHO FAILED TO COMPLY WITH EITHER REQUEST. CONSEQUENTLY, I FIND IT DIFFICULT TO ASCERTAIN WHAT RIGHT, IF ANY, ASSURED BY THE ORDER, WAS DENIED OR DIMINISHED BY RESPONDENT'S CONDUCT. IT IS TRUE THAT AT THE BRIEFINGS THOSE PRESENT WERE SUBJECTED TO A "SALES PITCH" THAT INCLUDED A LAUDATORY DEPICTION OF AN ORGANIZATION THAT IS AVOWEDLY "ANTI-MILITARY UNION". ALTHOUGH THE PRESENTATION MAY HAVE OVERSTATED THE CONTRIBUTION OF NGAUS TO THE ADVANCEMENT OF THE INTERESTS OF TECHNICIANS AND FAILED TO RECOGNIZE THE EFFORTS OF OTHERS, IT CONTAINED NOTHING DEROGATORY TO COMPLAINANT OR ANY OTHER LABOR ORGANIZATION. I RECALL NO TESTIMONY TO THE EFFECT THAT ANYONE WAS PREVENTED FROM WALKING OUT OF A BRIEFING IF HE FOUND IT OBJECTIONABLE. IF THE PROGRAM WERE NOT ENTIRELY VOLUNTARY, THE CHANGE IN THE PROVISIONS FOR PAYMENT OF DIVIDENDS MIGHT PRESENT SERIOUS PROBLEMS. CERTAINLY IT WOULD BE CLEARLY INCONSISTENT WITH THE PURPOSES OF THE ORDER TO REQUIRE EMPLOYEES TO MAKE MONETARY CONTRIBUTIONS TO THE HISTORICAL SOCIETY OR ANY SIMILAR ORGANIZATION. THOUGH THE CORPORATE AND FISCAL RELATIONSHIPS BETWEEN THE HISTORICAL SOCIETY AND NGAUS ARE NOT CLEARLY SPELLED OUT IN THE RECORD, IT IS NOT UNREASONABLE TO DRAW AN INFERENCE THAT THE DIVIDENDS TO BE RECEIVED BY THE HISTORICAL SOCIETY WILL BENEFIT NGAUS TO SOME EXTENT BY DIMINISHING, OR PERHAPS ELIMINATING, ITS BURDEN OF MAINTAINING THE MEMORIAL BUILDING. AS A RESULT, IT CAN BE SAID THAT TECHNICIANS WHO PARTICIPATE IN THE NEW PLAN ARE LIKELY TO CONTRIBUTE INDIRECTLY TO NGAUS. SINCE NONE OF THEM ARE OBLIGED, HOWEVER, TO PARTICIPATE IN THE PLAN (AND IT WAS NOT SHOWN THAT SIMILAR COVERAGE IS NOT OTHERWISE AVAILABLE AT COMPARABLE COST), NO SUCH CONTRIBUTIONS ARE REQUIRED. AS TO A REFUSAL TO CONSULT, CONFER OR NEGOTIATE WITH THE RECOGNIZED BARGAINING AGENT AS REQUIRED BY THE ORDER (SECTION 19(A)(6)), THERE IS NO DOUBT THAT RESPONDENT DECLINED COMPLAINANT'S REQUEST FOR CONSULTATION ON THE SUBJECT OF THE BRIEFINGS. THOUGH RESPONDENT HAD NO POWER TO CHANGE THE SELECTION OF A CARRIER, OR TO ALTER ANY OF THE TERMS AND CONDITIONS OF THE NEW PLAN, IT WOULD BE OBLIGED UNDER THE ORDER TO CONFER WITH RESPECT TO THE IMPACT OR IMPLEMENTATION THEREOF IF IT INVOLVED A CHANGE IN EXISTING PERSONNEL POLICIES OR PRACTICES AND OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS. CF. E.G. ROCKY MOUNTAIN ARSENAL, DENVER, COLORADO, A/SLMR NO. 933(1977. IT IS THE LAST PROVISION ABOVE THAT CONSTITUTES THE STRONGEST IMPEDIMENT TO FINDING AN UNFAIR LABOR PRACTICE IN THIS CASE. A CHANGE IN PREMIUM RATES OR IN DIVIDEND PAYMENTS OF A VOLUNTARY INSURANCE PROGRAM NOT ADMINISTERED BY A FEDERAL AGENCY OR ACTIVITY DOES NOT SEEM TO ME TO BE THE KIND OF PERSONNEL ITEM OR THE KIND OF MATTER AFFECTING WORKING CONDITIONS AS TO WHICH PRIOR CONSULTATION IS REQUIRED BY THE ORDER. SURELY, A GOVERNMENT AGENCY DOES NOT HAVE TO CONFER WITH ITS UNION EVERY TIME THAT BLUE CROSS OR AETNA RAISES ITS RATES, EVEN THOUGH THE AGENCY MAY PERMIT, OR EVEN ENCOURAGE, PAYMENT OF PREMIUMS BY PAYROLL DEDUCTION, AND EVEN THOUGH THE RATE INCREASE HAS AN OBVIOUS IMPACT ON PARTICIPATING EMPLOYEES. IT IS MOST UNFORTUNATE, OF COURSE, THAT IN THIS INSTANCE THE CHANGE MAY BE FOUND HIGHLY OBJECTIONABLE BY UNION MEMBERS BECAUSE OF THE POSITION TAKEN BY NGAUS AGAINST THE RIGHT OF NATIONAL GUARD TECHNICIANS TO ORGANIZE. PERSISTENT PROTESTS-- EVEN A BOYCOTT OF THE PLAN-- WOULD BE UNDERSTANDABLE AND PERHAPS JUSTIFIED. YET, IN MY VIEW, THE RECORD HERE DOES NOT SUPPORT A CONCLUSION THAT RESPONDENT HAS VIOLATED SECTIONS 19(A)(1) OR (6) OF THE ORDER. THOUGH RESPONDENT'S ACTIVE SUPPORT OF NGAUS VIS-A-VIS COMPLAINANT IS CLEARLY NOT CONSONANT WITH THE FOSTERING OF GOOD LABOR-MANAGEMENT RELATIONS, AND IS THUS FOUND CENSURABLE, I CANNOT FIND THAT IT HAS COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE CONTEMPLATION OF THE ORDER. WHETHER THE FACTS SHOWN HERE CONSTITUTE A VIOLATION OF ANY PROVISION OF THE TECHNICIAN PERSONNEL MANUAL OR OTHER INTERNAL REGULATION IS NOT MATERIAL IN THIS PROCEEDING. THE MOTION FOR ADMINISTRATIVE LEAVE ON BEHALF OF THREE WITNESSES IS DENIED ON THE GROUND THAT THEIR APPEARANCE AT THE HEARING WAS NOT ESSENTIAL. RECOMMENDATION IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED. ROBERT J. FELDMAN ADMINISTRATIVE LAW JUDGE DATED: AUGUST 27, 1979 WASHINGTON, D.C. /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 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.