Veterans Administration (Respondent) and American Federation of Government Employees, AFL-CIO (Complainant) 




[ v01 p888 ]
01:0888(101)CA
The decision of the Authority follows:


 1 FLRA No. 101
 
 VETERANS ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-09495(CA)
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE THEN AUTHORITY
 AGENT-IN-CHARGE MADELINE E. JACKSON'S ORDER TRANSFERRING CASE TO THE
 FEDERAL LABOR RELATIONS AUTHORITY IN ACCORDANCE WITH SECTIONS 203.5(B),
 203.7(A)(4) AND 206.5(A) OF THE REGULATIONS OF THE ASSISTANT SECRETARY
 OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
 
    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 ED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
 INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND
 A BRIEF SUBMITTED BY THE RESPONDENT, /1/ THE AUTHORITY FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT, BOTH AT THE AGENCY
 LEVEL AND THROUGH LOCAL REPRESENTATIVES AT THE VETERANS ADMINISTRATION
 (VA) HOSPITAL IN SALEM, VIRGINIA, VIOLATED SECTION 19(A)(1) AND (6) OF
 THE ORDER BY REFUSING TO NEGOTIATE WITH THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES (AFGE), LOCAL 1739, AFL-CIO, ON A MATTER FOUND
 NEGOTIABLE BY THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL).  THE
 RESPONDENT TAKES THE POSITION THAT WHILE A VIOLATION OF THE ORDER IN
 THESE CIRCUMSTANCES CAN ONLY BE PREDICATED UPON A REFUSAL TO NEGOTIATE
 IN GOOD FAITH, THE RESPONDENT ACTED ON THE BASIS OF A GENUINE CONCERN AS
 TO WHETHER OR NOT THE ADMINISTRATOR OF THE VA COULD AUTHORIZE BARGAINING
 ON THE PROPOSAL IN QUESTION.
 
    THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
 
    IN MARCH 1976, THE COMPLAINANT REQUESTED AN AGENCY HEAD DETERMINATION
 REGARDING THE NEGOTIABILITY OF A PROPOSAL PERTAINING TO REPRESENTATION
 FOR PROBATIONARY EMPLOYEES BEFORE A PROFESSIONAL STANDARDS BOARD.  /2/
 IT ALSO REQUESTED AN EXCEPTION TO ANY AGENCY REGULATIONS WHICH MIGHT BAR
 NEGOTIATIONS ON THE PROPOSAL.  THE RESPONDENT DECLARED THE PROPOSAL
 NONNEGOTIABLE AND DENIED THE COMPLAINANT'S REQUEST FOR AN EXCEPTION.
 THEREAFTER, THE COMPLAINANT FILED A PETITION FOR REVIEW OF THE AGENCY
 HEAD'S NONNEGOTIABILITY DETERMINATION WITH THE COUNCIL.  BASED IN PART
 ON ARGUMENTS ADVANCED BY THE RESPONDENT, THE COUNCIL REQUESTED AN
 OPINION FROM THE DEPARTMENT OF JUSTICE AS TO THE ALLEGED CONFLICT
 BETWEEN THE STATUTORY RESPONSIBILITY OF THE VA ADMINISTRATOR TO
 ESTABLISH PERSONNEL POLICIES FOR THOSE EMPLOYEES ENCOMPASSED BY THE
 INSTANT PROPOSAL UNDER 38 U.S.C. 4108(), /3/ AND THE AUTHORITY OF THE
 COUNCIL UNDER THE ORDER TO RULE ON THE "COMPELLING NEED" FOR THOSE
 AGENCY REGULATIONS ASSERTED AS A BAR TO NEGOTIATIONS ON THE
 COMPLAINANT'S PROPOSAL.  /4/ PRIOR TO ITS SUBMISSION TO THE JUSTICE
 DEPARTMENT, THE COUNCIL INVITED AND RECEIVED POSITION STATEMENTS FROM
 THE PARTIES WHICH WERE FORWARDED TO THE JUSTICE DEPARTMENT FOR
 CONSIDERATION.
 
    THE JUSTICE DEPARTMENT DECLINED TO ISSUE AN OPINION.  THEREAFTER, THE
 COUNCIL ISSUED ITS DECISION ON THE COMPLAINANT'S PETITION FOR REVIEW,
 /5/ FINDING INITIALLY THAT THERE WAS NO CONFLICT BETWEEN THE AUTHORITY
 OF THE COUNCIL AND THE VA ADMINISTRATOR WHICH WOULD SERVE TO PREEMPT THE
 FORMER'S JURISDICTION IN THIS MATTER.  SECONDLY, THE COUNCIL FOUND THAT
 THE RESPONDENT HAD FAILED TO ESTABLISH A COMPELLING NEED FOR THOSE
 AGENCY REGULATIONS WHICH IT ASSERTED CONSTITUTED A BAR TO NEGOTIATIONS
 ON THE COMPLAINANT'S PROPOSAL.  ACCORDINGLY, THE COUNCIL SET ASIDE THE
 AGENCY HEAD'S NONNEGOTIABILITY DETERMINATION.
 
    IN JUNE 1978, REPRESENTATIVES OF AFGE, LOCAL 1739, RESUBMITTED THE
 PROPOSAL IN QUESTION FOR NEGOTIATIONS.  ON JULY 5, 1978, THE
 RESPONDENT'S REPRESENTATIVE AT THE VA HOSPITAL IN SALEM REPLIED THAT HE
 HAD BEEN INSTRUCTED BY HIGHER AGENCY MANAGEMENT NOT TO NEGOTIATE ON THE
 PROPOSAL PENDING THE OUTCOME OF THE RESPONDENT'S RESUBMISSION OF THE
 MATTER TO THE JUSTICE DEPARTMENT.  THE COMPLAINANT THEREUPON FILED AN
 UNFAIR LABOR PRACTICE CHARGE BASED ON THE REFUSAL TO NEGOTIATE.  ON
 OCTOBER 13, 1978, THE RESPONDENT REQUESTED AN OPINION FROM THE ATTORNEY
 GENERAL AS TO THE RESPONSIBILITY OF THE VA ADMINISTRATOR TO ABIDE BY A
 RULING OF THE COUNCIL, AND, ON OCTOBER 17, 1978, THE COMPLAINANT FILED
 THE FORMAL UNFAIR LABOR PRACTICE COMPLAINT.
 
    AS OF THE DATE OF THE PARTIES' STIPULATION, THE JUSTICE DEPARTMENT
 HAD NOT YET REPLIED TO THE RESPONDENT'S INQUIRY.  /6/
 
                         FINDINGS AND CONCLUSIONS
 
    IN THE AUTHORITY'S VIEW, THE RESPONDENT'S REFUSAL TO NEGOTIATE ON THE
 COMPLAINANT'S PROPOSAL AFTER IT HAD BEEN DETERMINED TO BE NEGOTIABLE BY
 THE COUNCIL IS VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER.  THE
 STUDY COMMITTEE REPORT AND RECOMMENDATIONS WHICH LET TO THE ISSUANCE OF
 THE ORDER STATED THAT A LABOR ORGANIZATION SHOULD BE PERMITTED TO FILE
 AN UNFAIR LABOR PRACTICE COMPLAINT WHEN IT BELIEVES THAT A MANAGEMENT
 OFFICIAL HAS BEEN ARBITRARY OR IN ERROR IN EXCLUDING A MATTER FROM
 NEGOTIATION WHICH HAS ALREADY BEEN DETERMINED TO BE NEGOTIABLE THROUGH
 THE PROCESSES OF THE ORDER.  /7/ IN THE CIRCUMSTANCES, HEREIN, THE
 COMPLAINANT FOLLOWED THE PROCEDURES OF THE ORDER BY REQUESTING AN
 AGENCY
 HEAD DETERMINATION REGARDING THE NEGOTIABILITY OF ITS PROPOSAL AND THEN
 APPEALING THE ADVERSE DECISION TO THE COUNCIL PURSUANT TO THE LATTER'S
 REGULATIONS.
 
    AS A RESULT OF THE COUNCIL'S DECISION TO SET ASIDE THE AGENCY HEAD'S
 NONNEGOTIABILITY DETERMINATION THE RESPONDENT BECAME OBLIGATED TO
 NEGOTIATE ON THE SUBJECT PROPOSAL.  A DEFENSE THAT NEGOTIATIONS WERE
 BEING HELD IN ABEYANCE PENDING REFERRAL OF A REQUEST TO THE ATTORNEY
 GENERAL FOR AN OPINION AS TO THE RESPONSIBILITY OF THE VA ADMINISTRATOR
 TO ABIDE BY A RULING OF THE COUNCIL DOES NOT RELIEVE THE RESPONDENT OF
 ITS BARGAINING OBLIGATION UNDER THE ORDER.  /8/ THE RESPONDENT'S FAILURE
 TO FULFILL ITS BARGAINING OBLIGATION IN THESE CIRCUMSTANCES IS VIOLATIVE
 OF THE ORDER.  /9/
 
    THE EVIDENCE HEREIN ESTABLISHES THAT THE RESPONDENT'S REPRESENTATIVES
 AT THE VA HOSPITAL IN SALEM, VIRGINIA, REFUSED TO NEGOTIATE WITH AFGE,
 LOCAL 1739, BASED UPON DIRECTION FROM HIGHER AGENCY MANAGEMENT.  IN THIS
 REGARD, IT HAS BEEN HELD BY THE COUNCIL THAT THE ACTS AND CONDUCT OF
 AGENCY MANAGEMENT, AT A HIGHER LEVEL OF AN AGENCY'S ORGANIZATION, MAY
 PROVIDE THE BASIS FOR FINDING A VIOLATION OF ANY PART OF SECTION 19(A)
 OF THE ORDER, BUT, MAY NOT, STANDING ALONE, PROVIDE THE BASIS FOR
 FINDING A SEPARATE VIOLATION BY "AGENCY MANAGEMENT" AT A LOWER
 ORGANIZATIONAL LEVEL OF THE AGENCY SOLELY ON THE BASIS OF ITS
 MINISTERIAL ACTIONS IN IMPLEMENTING THE DIRECTIONS FROM HIGHER AGENCY
 AUTHORITY.  /10/ BASED ON THIS RATIONALE, THE AUTHORITY FINDS THAT THE
 VETERANS ADMINISTRATION AT THE AGENCY LEVEL VIOLATED SECTION 19()(1) AND
 (6) OF THE ORDER BY, IN EFFECT, PROHIBITING THE LOCAL VA HOSPITAL FROM
 NEGOTIATING WITH AFGE, LOCAL 1739.  FURTHER, THE AUTHORITY FINDS THAT
 THE VA HOSPITAL IN SALEM, VIRGINIA, BY FOLLOWING THE DIRECTIONS FROM
 HIGHER AGENCY MANAGEMENT, DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF
 THE ORDER.
 
                                ORDER /11/
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE VETERANS ADMINISTRATION, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DIRECTING LOCAL REPRESENTATIVES AT THE VETERANS ADMINISTRATION
 HOSPITAL IN SALEM, VIRGINIA, NOT TO NEGOTIATE WITH THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1739, AFL-CIO, THE EXCLUSIVE
 REPRESENTATIVE OF ITS EMPLOYEES AT THE HOSPITAL IN SALEM, VIRGINIA, TO
 THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON A PROPOSAL PERTAINING
 TO REPRESENTATION FOR PROBATIONARY EMPLOYEES BEFORE A PROFESSIONAL
 STANDARDS BOARD, WHICH PROPOSAL WAS FOUND NEGOTIABLE BY THE FEDERAL
 LABOR RELATIONS COUNCIL.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1739, AFL-CIO, MEET AND CONFER, OR CAUSE THE VETERANS
 ADMINISTRATION HOSPITAL, SALEM, VIRGINIA, TO MEET AND CONFER, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROPOSAL PERTAINING TO
 REPRESENTATION FOR PROBATIONARY EMPLOYEES BEFORE A PROFESSIONAL
 STANDARDS BOARD.
 
    (B) POST AT THE VETERANS ADMINISTRATION HOSPITAL IN SALEM, VIRGINIA,
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
 BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS
 THEY SHALL BE SIGNED BY THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION
 AND SHALL BE POSTED AND MAINTAINED BY THE DIRECTOR OF THE HOSPITAL IN
 SALEM, VIRGINIA, FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE
 STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
 BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., AUGUST 21, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
           RELATIONS WE HEREBY NOTIFY EMPLOYEES OF THE VETERANS
 
            ADMINISTRATION HOSPITAL IN SALEM, VIRGINIA, THAT:
 
    WE WILL NOT DIRECT LOCAL REPRESENTATIVES OF THE VETERANS
 ADMINISTRATION HOSPITAL IN SALEM, VIRGINIA, TO REFUSE TO NEGOTIATE WITH
 THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1739, AFL-CIO,
 THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES AT THE HOSPITAL IN SALEM,
 VIRGINIA, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
 PROPOSAL PERTAINING TO REPRESENTATION FOR PROBATIONARY EMPLOYEES BEFORE
 A PROFESSIONAL STANDARDS BOARD, WHICH PROPOSAL WAS FOUND NEGOTIABLE BY
 THE FEDERAL LABOR RELATIONS COUNCIL.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1739, AFL-CIO, MEET AND CONFER, OR CAUSE THE VETERANS
 ADMINISTRATION HOSPITAL, SALEM, VIRGINIA, TO MEET AND CONFER, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROPOSAL PERTAINING TO
 REPRESENTATION FOR PROBATIONARY EMPLOYEES BEFORE A PROFESSIONAL
 STANDARDS BOARD.
 
                                  . . .
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  ROOM 416 VANGUARD BUILDING, P.O. BOX 19257, 1111 20TH
 STREET, N.W., WASHINGTON, D.C. 20036, AND WHOSE TELEPHONE NUMBER IS:
 (202) 254-6581.
 
    /1/ A BRIEF SUBMITTED BY THE COMPLAINANT WAS UNTIMELY FILED AND
 THEREFORE HAS NOT BEEN CONSIDERED.
 
    /2/ THE RECORD REVEALS THAT THE PROBATIONARY EMPLOYEES ARE MEDICAL
 PERSONNEL AND ARE COVERED BY SPECIFIC SECTIONS OF THE UNITED STATES CODE
 WHICH HAVE BEEN INCORPORATED IN OR EXPANDED UPON IN VA REGULATIONS.
 
    /3/ 38 U.S.C. 4108(A) STATES, IN PERTINENT PART:
 
    NOTWITHSTANDING ANY LAW, EXECUTIVE ORDER, OR REGULATION, THE (VA)
 ADMINISTRATOR SHALL
 
    PRESCRIBE BY REGULATION THE HOURS AND CONDITIONS OF EMPLOYMENT AND
 LEAVES OF ABSENCE OF
 
    PHYSICIANS, DENTISTS, NURSES, PHYSICIAN ASSISTANTS, AND EXPANDED
 FUNCTION DENTAL AUXILIARIES
 
    APPOINTED TO THE DEPARTMENT OF MEDICINE AND SURGERY . . .
 
    /4/ SECTION 11(A) OF THE ORDER STATES, IN PERTINENT PART:
 
    AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION, THROUGH
 
    APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND
 CONFER IN GOOD FAITH WITH
 
    RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
 WORKING CONDITIONS, SO FAR
 
    AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS,
 INCLUDING . . . PUBLISHED AGENCY
 
    POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED EXISTS UNDER
 CRITERIA ESTABLISHED BY THE
 
    FEDERAL LABOR RELATIONS COUNCIL . . .
 
    /5/ FLRC 76A-88 (FEBRUARY 28, 1978), REPORT NO. 144.
 
    /6/ THE AUTHORITY HAS SINCE BEEN ADMINISTRATIVELY ADVISED THAT ON
 FEBRUARY 2, 1979, THE DEPARTMENT OF JUSTICE RENDERED ITS OPINION FINDING
 THAT 38 U.S.C.  4108() DID NOT PROHIBIT THE COUNCIL FROM REQUIRING THE
 RESPONDENT TO NEGOTIATE WITH THE COMPLAINANT ON ITS PROPOSAL AND THAT
 THE RESPONDENT WOULD NOT BE ACTING UNLAWFULLY SHOULD IT IMPLEMENT THE
 COUNCIL'S DECISION.
 
    /7/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, 1975, P.  71.
 
    /8/ CF. DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, 3 FLRC 188,
 FLRC 74A-46 (MARCH 20, 1975).  REPORT NO. 67, WHEREIN THE COUNCIL FOUND,
 IN PERTINENT PART, THAT A PARTY MAY NOT RELIEVE ITSELF FROM AN
 OBLIGATION UNDER THE ORDER BY REQUESTING AN OPINION FROM ANOTHER AGENCY.
  SUCH AN ACTION IS NOT A DEFENSE TO AN UNFAIR LABOR PRACTICE CHARGE.
 
    /9/ THIS DOES NOT IMPLY THAT THE RESPONDENT COULD NOT REQUEST AN
 OPINION FROM ANOTHER AGENCY, BUT ONLY THAT THE RESPONDENT WAS NOT
 RELIEVED OF ITS BARGAINING OBLIGATIONS UNDER THE ORDER DURING THE
 PENDENCY OF SUCH REQUEST.
 
    /10/ CF. NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA AND SECRETARY
 OF THE NAVY, DEPARTMENT OF THE NAVY, WASHINGTON, D.C., 5 FLRC 303, FLRC
 761-37 (MAY 4, 1977), REPORT NO. 125.
 
    /11/ 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.