[ v47 p258 ]
47:0258(19)NG
The decision of the Authority follows:
47 FLRA No. 19
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1020
(Union)
and
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
MARION, INDIANA
(Agency)
0-NG-2080
_____
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 31, 1993
_____
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of five proposals relating to implementation of the Agency's formaldehyde usage policy.
For the reasons stated below, we make the following determinations. Proposal 2, which requires the Agency to notify employees and the Union of certain test results, is negotiable. Proposal 3, which requires the Agency to provide employees and Union representatives the opportunity to observe formaldehyde monitoring, is negotiable.
Proposal 8, which directs the Agency to provide certain medical records to employees and their selected Union representatives, is nonnegotiable. Proposal 9, which requires the Agency to provide monitoring records to the Union, is negotiable. Proposal 10, which directs the Agency to use certain forms to record monitoring, is negotiable.
II. Threshold Issue
The dispute in this case arose as a result of local negotiations over a revised Agency formaldehyde usage policy, which implemented formaldehyde standards established by the Occupational Safety and Health Act (OSHA). Of the 11 proposals contained in the Union's Petition for Review, the Agency's sole contention regarding Proposals 1, 4, 5, 6, 7, and 11 is that they are covered by the parties' master agreement and are nonnegotiable at the local level.
Under section 7117 of the Statute and section 2424.1 of our Regulations, we will consider a petition for review of a negotiability issue only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990). Because the Agency does not claim that Proposals 1, 4, 5, 6, 7, and 11 are inconsistent with law, rule, or regulation, the petition for review as to these proposals does not satisfy the conditions governing review of negotiability issues. Accordingly, we will dismiss the Union's petition for review as to these proposals, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. To the extent that the parties' dispute over whether these proposals are covered by the parties' master agreement remains, the dispute should be resolved in other appropriate proceedings. See id.
III. Proposal 2
Employees and the Union will be notified of their exposure test results within 15 days of receipt by the Industrial Hygienist.
A. Positions of the Parties
The Agency argues that Proposal 2 is inconsistent with 29 C.F.R. § 1910.1048(d)(6)(1) because, although the regulation requires the Agency to notify affected employees of the results of exposure tests relating to the monitoring of formaldehyde, the proposal requires the Agency to notify the Union also. The Agency also claims that Proposal 2 is inconsistent with 29 C.F.R. § 1910.20(e)(2)(i)(B)(2) because it would require the Agency to give the Union "unconsented access" to employee exposure records without the Union's "written request and a particularized, demonstrated need." Statement of Position at 9.
The Union asserts that the proposal is consistent with 29 C.F.R. § 1910.1048(d)(6) and with the Union's rights to information under section 7114(b)(4)(B) of the Statute. The Union argues that it needs the requested information to "monitor what levels of exposure the employees are receiving." Petition for Review at 2.
B. Analysis and Conclusions
We reject the Agency's argument that Proposal 2 is inconsistent with 29 C.F.R. § 1910.20(e)(2)(i)(B). That regulation sets forth requirements governing Union requests for access to records relating to employee exposure to formaldehyde. With respect to access to which affected employees have not specifically consented, the regulation requires written requests which identify both the records sought and the occupational health need for access.
Proposal 2 specifies the records sought by the Union. In addition, the Union's statement that it needs the records in order to "protect the . . . bargaining unit interests[] [by] monitor[ing] what levels of exposure the employees are receiving[,]" sufficiently sets forth the Union's occupational health need for gaining access to the records. Petition for Review at 2. We find no reason why the proposal cannot be considered a blanket, written request for records, within the meaning of the regulation and, as such, conclude that the proposal is consistent with 29 C.F.R. § 1910.20(e)(2)(i)(B).
We also reject the Agency's claim that Proposal 2 is inconsistent with 29 C.F.R. § 1910.1048(d)(6). That regulation addresses only the Agency's obligation to notify employees of exposure test results. It does not address requests for records by Union representatives and does not, implicitly or explicitly, bar disclosure to Unions of requested records. We note, in this connection, that access to employee exposure records is governed by, among other provisions, 29 C.F.R. § 1910.20(e)(1)(vi), which provides, as relevant here, that "[n]othing in this section is intended to preclude employees and collective bargaining agents from collectively bargaining to obtain access to information in addition to that available under this section." In view of this general instruction, we find no basis on which to conclude that the Agency is prohibited from agreeing in a collective bargaining agreement to provide the Union with employee exposure records.
In sum, we conclude that Proposal 2 is consistent with the regulations relied on by the Agency. As the Agency presents no other arguments for finding the proposal nonnegotiable, and none are apparent to us, we conclude that Proposal 2 is negotiable.
IV. Proposal 3
Employees and the Union Representative will be notified prior to and be given the opportunity to observe formaldehyde exposure monitoring and be provided with appropriate protective clothing.
A. Positions of the Parties
1. Agency
The Agency argues that Proposal 3 directly interferes with its right to assign work because it would require the Agency to assign employees the task of observing formaldehyde monitoring even where the Union accomplishes that task.(3) In this connection, the Agency notes that under 29 C.F.R. § 1910.1048(d)(7), it is only required to give "employees or their designated representative" the opportunity to observe monitoring.(4) Statement of Position at 10 (emphasis in original). The Agency also argues that the proposal interferes with its right to assign work because it prevents management from assigning employees to "perform monitoring" unless it provides other employees and the Union the opportunity to observe the monitoring. Id.
The Agency maintains that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency claims that its obligation "under OSHA regulations to monitor employee exposure to formaldehyde" is not an exercise of a management right under section 7106 of the Statute and that the Union has not identified any management right that "would adversely effect any employees in this circumstance." Id. at 12. The Agency also claims that permitting "employees and the Union to observe the same formaldehyde monitoring activity" would excessively interfere with management's right to assign work. Id. (emphasis in original).
Finally, the Agency claims that the portion of Proposal 3 "which would require that the agency supply [the Union] with protective clothing and equipment is inconsistent with laws concerning the use of Federal funds." Id. at 13. The Agency maintains that the proposal is contrary to 29 U.S.C. § 668(a), as interpreted by the Comptroller General decisions, and that the proposal would require the Agency to provide protective equipment to the Union directly and not to the employees and that the Union "could utilize or dispose of the equipment as it wishes." Id. at 14.
2. Union
The Union asserts that Proposal 3 is negotiable either as a procedure or as an appropriate arrangement. The Union states that a 1992 OSHA evaluation of the Agency's safety and health programs found that the Agency was not providing "a safe and healthful work environment for [its] employees." Petition for Review at 2. The Union also states, based on the OSHA evaluation, that the Agency's industrial hygienists could make errors leading to "possible injury or illness." Id.
B. Analysis and Conclusions
1. Proposal 3 Directly Interferes with the Agency's Right to Assign Work
Management's right to assign work, under section 7106(a)(2)(B) of the Statute, includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or to what position the duties will be assigned. American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 594 (1991). Proposal 3 permits employees and Union representatives to observe formaldehyde exposure monitoring. That is, the proposal requires the Agency to assign employees, at their option, the specific task of observing formaldehyde exposure monitoring. Accordingly, we conclude that Proposal 3 directly interferes with management's right to assign work. Id. As Proposal 3 directly interferes with management's right to assign work under 7106(a)(2)(B) of the Statute, it does not constitute a negotiable procedure under section 7106(b)(2). See American Federation of Government Employees, Local 2879 and U.S. Department of Health and Human Services, Social Security Administration, Chula Vista District, San Diego, California, 38 FLRA 244, 248 (1990) (citing Department of Defense v. FLRA, 659 F.2d 1140, 1151-52 (D.C. Cir. 1981), cert. denied sub nom. 455 U.S. 945 (1982)).
2. Proposal 3 Constitutes a Negotiable Appropriate Arrangement
The Union asserts that Proposal 3 is an appropriate arrangement. In determining whether a proposal is an appropriate arrangement, we first ascertain whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the Authority determines that the provision is an arrangement, we then examine whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986).
We reject the Agency's claim that Proposal 3 cannot constitute an appropriate arrangement because management's obligation under applicable regulations to monitor exposure to formaldehyde does not constitute an exercise of a management right under section 7106 of the Statute. The proposal does not purport to address an adverse effect resulting from the Agency's monitoring of exposure to formaldehyde. Instead, the proposal addresses effects of the exposure itself. In this connection, the assignment of work under conditions where employees' health, safety, and performance are affected is an exercise of management's right which can have foreseeable adverse affects on employees. For example, National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 667 (1991)(SEIU). Based on the record in this case, we conclude that Proposal 3 constitutes an arrangement for employees whose health and safety could foreseeably be adversely affected by assignments which result in exposure to formaldehyde. Consequently, we conclude that the proposal is intended as an arrangement for employees adversely affected by the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute.
Having concluded that Proposal 3 constitutes an arrangement, we must next determine whether it is appropriate or whether it excessively interferes with management's rights under section 7106 of the Statute. In so determining, we must assess whether the affect of the proposal on management's right to assign work is disproportionate to the benefits to employees conferred by the proposal.
In weighing the benefit to employees afforded by Proposal 3 against the burden on the exercise of management's right, we find that employees could benefit considerably if Agency monitoring of formaldehyde levels was observed by employees and Union representatives. Permitting observation of monitoring would assure employees that monitoring is conducted in a timely manner, that measurements are accurately taken and reported, and that all other applicable safety and health regulations are met. Moreover, employees, who are familiar with the chemicals in use in their own work areas, and the Union, which in its representational capacity seeks compliance with OSHA standards for all employees, would each bring different expertise as observers, thus further assuring the integrity and completeness of monitoring.
On the other hand, although the Agency objects to assigning both employees and Union representatives to observe monitoring, the Agency has not explained how many employees would be assigned, how often, or for what duration the observation of monitoring would take place. Moreover, it is undisputed that, under 29 C.F.R. § 1910.1048(d)(7)(i), the agency must assign monitoring functions to employees or the Union. Accordingly, the Agency's right to assign work is affected to some degree even in the absence of the proposal. Based on the record as a whole, and in the absence of any evidence or assertions regarding the extent to which the proposal would increase the Agency's existing regulatory obligations, we conclude that requiring the Agency to permit both employees and a Union representative to perform the duty of observing monitoring would not place a significant burden on the exercise of the Agency's right to assign work.
On balance, we conclude that the benefits afforded employees by Proposal 3 outweigh the effects of the proposal on management's right to assign work. Accordingly, we find that, insofar as Proposal 3 requires the Agency to permit affected employees and Union representatives to monitor exposure testing, it does not excessively interfere with management's right to assign work and is negotiable as an appropriate arrangement. See SEIU, 40 FLRA at 667.
Finally, we reject the Agency's arguments that the portion of the proposal concerning protective clothing is inconsistent with statutes governing the use of Federal funds. Contrary to the Agency's claims, nothing in the plain wording of the proposal requires the Agency to provide the Union protective clothing or equipment solely for its own use. Similarly, nothing in the proposal requires the Agency to provide clothing or equipment to the Union, instead of to employees or employee Union representatives directly. The proposal requires only that the Agency provide appropriate protective clothing to employees and Union representatives when they observe formaldehyde monitoring. This obligation is consistent, in our view, with 29 C.F.R. § 1910.1048(d)(7)(ii), which states:
When observation of the monitoring of employee exposure to formaldehyde requires entry into an area where the use of protective clothing or equipment is required, the employer shall provide the clothing and equipment to the observer, require the observer to use such clothing and equipment, and assure that the observer complies with all other applicable . . . procedures.
In summary, we conclude that Proposal 3 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute and is negotiable.
V. Proposals 8 and 9
Proposal 8
Medical records will be provided to the employee[s] upon request and to their selected Union representative. [Only the underlined portion of Proposal 8 is in dispute.]
Proposal 9
Monitoring records will be provided to the Union.
A. Positions of the Parties
The Agency argues that Proposals 8 and 9 would require the Agency to disclose employee medical records to the Union and are, therefore, contrary to the Privacy Act and Government-wide regulations.
The Agency states the Privacy Act prohibits disclosure of these records unless disclosure is required by the Freedom of Information Act (FOIA) or is encompassed by an applicable routine use statement. The Agency asserts that there is no applicable routine use statement authorizing disclosure of the records to the Union. Moreover, according to the Agency, disclosure of the records encompassed by Proposals 8 and 9 is not required by the FOIA because such disclosure would result in clearly unwarranted invasions of employees' privacy, within the meaning of exemption b(6) of the FOIA. In this connection, the Agency argues that, consistent with Department of Justice v. Reporter's Committee for Freedom of the Press, 489 U.S. 749 (1989), medical records may be released only if public interest in their disclosure outweighs the employees' personal privacy interest. The Agency states that release of information is in the public interest only if it sheds light on the Agency's "statutory duty of providing medical care and treatment to beneficiaries and employees." Statement of Position at 20.
The Agency also contends that the proposals conflict with Government-wide regulations. In particular, the Agency argues that, under 29 C.F.R. § 1910.20(e)(2)(ii), employee medical records are "available only upon the specific consent of the employee to his/her designated representative."(5) Statement of Position at 21. The Agency argues that Proposals 8 and 9 would establish "a less rigorous standard[.]" Id.
The Union contends that Proposals 8 and 9 are negotiable either as procedures or as appropriate arrangements. However, the Union does not provide any specific arguments in support of that contention.
B. Analysis and Conclusions
1. Proposal 8
The Agency does not object to the portion of Proposal 8 which requires the Agency to furnish employees with their medical records upon request. However, Proposal 8 also requires the Agency to provide employees medical records to the Union representatives. Consistent with its plain wording, and in the absence of Union assertions to the contrary, we conclude that Proposal 8 would require the Agency to provide the Union with medical records without affected employees' request or consent.
The Privacy Act generally prevents disclosure of personal information about Government employees without their written consent. However, section (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2), provides that information may be disclosed if required by the FOIA. See generally National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 739-40 (1992)(Customs Service), petition for review filed sub nom. U.S. Dept. of the Treasury, Customs Service, Washington, D.C. v. FLRA, No. 93-1076 (D.C. Cir. May 3, 1991). The FOIA, in turn, provides that records must be disclosed unless the records are subject to a specific exemption. As relevant here, exemption (b)(6) of the FOIA states that information need not be released if it is contained in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
In determining whether the requested information may be excepted from disclosure by FOIA exemption (b)(6), an individual's right to privacy must be balanced against the public interest in having the information disclosed. Customs Service at 740. In applying the balancing test, we look to the public interest embodied in the Statute. See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991). See also National Labor Relations Board, Office of the General Counsel, Washington, D.C. and National Labor Relations Board Union, 37 FLRA 1036, 1044 (1990). The release of information which is necessary for a union to perform its statutory representative functions promotes important public interests. Id.
In this case, the Union has clear representational interests in protecting employees' health and safety by assuring that employees are not exposed to formaldehyde in the work place, that they receive medical treatment for any exposure, and that the Agency satisfies applicable OSHA standards on formaldehyde. Disclosure of the information encompassed by Proposal 8 would enable the Union to assess whether the Agency is abiding by OSHA standards and that medical treatment is provided to employees who are exposed to formaldehyde. Disclosure of the information would serve a public interest by furthering the Union's abilities to enforce and monitor the Agency's observance to OSHA standards.
However, employees have significant privacy interests in their medical records. Medical records, by their very nature, contain sensitive information about employees' medical history, and could reveal highly personal data about employees' physical, emotional, and mental conditions. Further, this information may be unrelated to formaldehyde exposure. Consequently, we find that the portion of Proposal 8 which requires the release of medical records to the Union, without the consent of the employees, would result in a clear invasion of the employees' personal privacy. See American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 273, 278 (1987).
On balance, we find that the personal privacy interests of employees whose medical records would be disclosed, without their consent, to the Union under Proposal 8 outweigh the public interest in such disclosure to the Union. In particular, we find that, although disclosure could assist the Union in performing its representational functions, the sensitive and personal nature of the information disclosed implicates very significant privacy interests and, as the proposal requires broad, blanket disclosure which would not be limited to medical information concerning formaldehyde, it would result in a clearly unwarranted invasion of employee privacy, within the meaning of exemption b(6) of the FOIA. As such, disclosure of the information is not required by the FOIA and is prohibited by the Privacy Act. See National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1254-55 (1991)(Department of Energy), petition for review filed sub nom. United States Department of Energy v. FLRA, No. 91-1514 (D.C. Cir. Oct. 21, 1991).
As Proposal 8 requires disclose of information which is prohibited by the Privacy Act, the proposal is inconsistent with law and is nonnegotiable under section 7117(a)(1) of the Statute. In view of our conclusion, we do not address the Agency's other arguments regarding the negotiability of the proposal. Similarly, we do not address further the Union's contentions that Proposal 8 is a procedure or an appropriate arrangement under section 7106(b)(2) and (3) of the Statute. Sections 7106(b)(2) and (3) do not make negotiable a matter which is inconsistent with a law other than the Statute.
2. Proposal 9
The Agency argues that Proposal 9 is inconsistent with the Privacy Act and Government-wide regulation because it requires the release of medical records to the Union. The plain wording of Proposal 9, however, does not require the release of medical records. Instead, the proposal requires only the release of monitoring records. Consequently, we find the Agency's arguments to be misplaced. As the Agency offers no other arguments regarding Proposal 9, and it is not otherwise apparent that the proposal is inconsistent with any law, rule or regulation, we find that Proposal 9 is negotiable. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 691 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril. Accordingly, we conclude that Proposal 9 is negotiable.
VI. Proposal 10
Records of measurements will be recorded on OSHA Form 91-A (Air Sampling Worksheet) and OSHA Form 91-B (Air Sampling Report)(from OSHA IH Technical Manual) and sent to the lab. A copy of all records and forms will be provided to the Union.
A. Positions of the Parties
The Agency argues that Proposal 10 directly interferes with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute because the proposal requires the use of OSHA forms "in lieu of [Agency] forms[.]" Statement of Position at 21 (emphasis omitted). According to the Agency, there is a direct and integral relationship between the use of Agency forms and the Agency's ability to comply with the OSHA requirement that it monitor employee formaldehyde exposure. The Agency claims that use of Agency forms "assures uniformity in work place safety standards throughout the Agency's many facilities." Statement of Position at 23. The Agency also claims that use of OSHA forms would "disrupt the Agency's monitoring efforts, [and] impose additional costs on the Agency without any concomitant increase in workplace safety or hazard avoidance." Id.
The Union contends that Proposal 10 is negotiable either as a procedure or as an appropriate arrangement.
B. Analysis and Conclusions
To demonstrate that a proposal directly interferes with management's right to determine the "methods and means of performing work," an agency must show that: (1) there is a direct and integral relationship between the particular methods and means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method and means were adopted. For example, U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council; of Social Security Administration, Payment Center Locals, Local 1760, 36 FLRA 466, 474 (1990)(Payment Center Locals).
Even assuming that the first part of the test has been satisfied in this case, we conclude, under the second part, that the Agency has failed to show that Proposal 10 would directly interfere with a mission-related purpose for which it has developed, and uses, Agency forms. In this connection, the Agency's claim that Proposal 10 directly interferes with management's right to determine the methods and means of performing work is based on an interpretation of the proposal as requiring the Agency to use OSHA forms "in lieu of" Agency forms. Statement of Position at 21 (emphasis omitted). However, nothing in Proposal 10 precludes the Agency from continuing to use its Agency forms in addition to the OSHA forms required by the proposal. As Proposal 10 does not in any manner prohibit the Agency's continued use of its forms, it does not directly interfere with the Agency right to determine the method or means of performing work under section 7106(b)(1) of the Statute and is within the duty to bargain. See National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri, 39 FLRA 976, 984 (1991); Payment Center Locals, 36 FLRA at 475 (1990).
VII. Order
The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposals 2, 3, 9 and 10.(6) The petition for review of Proposals 1, 4, 5, 6, 7, 8 and 11 is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. 29 C.F.R. § 1910.1048(d)(6) states, in pertinent part:
Within 15 days of receiving the results of exposure monitoring . . ., the employer shall notify the affected employees of these results. Notification shall be in writing, either by distributing copies of the results to the employees or by posting the results.
2. 29 C.F.R. § 1910.20(e)(2)(i)(B) provides:
Requests by designated representatives for unconsented access to employee exposure records shall be in writing and shall specify with reasonable particularity:
(1) The records requested to be disclosed; and
(2) The occupational health need for gaining access to these records.
3. Although the Agency argues that Proposal 3 interferes with its right to assign work, it cites section 7106(a)(2)(A) of the Statute, which addresses management's right to assign employees. As there is no basis on which to conclude that Proposal 3 relates in any way to management's right to assign employees, we will address only the Agency's arguments regarding the right to assign work.
4. 29 C.F.R. § 1910.1048(d)(7) states, in relevant part:
Observation of monitoring. (i) The employer shall provide affected employees or their designated representatives an opportunity to observe any monitoring of employee exposure to formaldehyde required by this standard.
Although the Agency cites this regulation in connection with its argument that the proposal interferes with its right to assign work, the Agency makes no claim that the proposal is inconsistent with the regulation. Moreover, although the regulation requires that employees or Union representatives be provided opportunities to observe monitoring, the regulation clearly does not prohibit the Agency from providing such opportunities to both employees and representatives.
5. 29 C.F.R. § 1910.20(e)(2)(ii)(B) states in pertinent part:
Each employer shall, upon request, assure the access of each designated representative to the employee medical records of any employee who has given the designated representative specific written consent. . . .
6. In finding Proposals 2, 3, 9, and 10 to be negotiable, we make no findings as to their merits.