Department of the Army, Headquarters, Military Traffic Management Command (Respondent) and American Federation of Government Employees, Local 909, AFL-CIO (Complainant)



[ v02 p540 ]
02:0540(72)CA
The decision of the Authority follows:


 2 FLRA No. 72
 
 DEPARTMENT OF THE ARMY,
 HEADQUARTERS, MILITARY TRAFFIC
 MANAGEMENT COMMAND
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 909, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-09049(CA)
 
                            DECISION AND ORDER
 
    ON JUNE 6, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY 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.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED 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 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 THE 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 THIS CASE, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS AS MODIFIED HEREIN.  /1/
 
    THE COMPLAINT HEREIN ALLEGED, AMONG OTHER THINGS, THAT THE ORAL
 REPRIMAND GIVEN THOMAS O. BARNES ON OCTOBER 26, 1977, WAS BASED ON HIS
 UNION ACTIVITIES IN VIOLATION OF SECTION 19(A)(1) AND (2) OF THE ORDER.
 THE ORAL REPRIMAND GIVEN BARNES WAS BASED ON HIS CONDUCT AT A MERIT
 PROMOTION RATING AND RANKING PANEL.  THE RECORD REFLECTS THAT BARNES
 SERVED ON THE RATING AND RANKING PANEL PURSUANT TO THE COMPLAINANT'S
 NEGOTIATED RIGHT TO SELECT ONE MEMBER FOR SUCH A PANEL.  THE OTHER TWO
 MEMBERS OF THE PANEL, MS. FLEMING AND MS. KILLEN, WERE SELECTED BY
 MANAGEMENT.  AFTER EACH OF THE THREE PANEL MEMBERS COMPLETED THEIR
 RATING AND RANKING INDEPENDENTLY, MS.  HOLLIMAN, A PERSONNEL SPECIALIST,
 CONVENED THE PANEL TO COLLATE THE RESULTS AND TO DISCUSS INDIVIDUAL
 DIFFERENCES IN RANKING.  THE CREDITED TESTIMONY REVEALS THAT BARNES
 BECAME UPSET DURING THIS DISCUSSION AND, AMONG OTHER THINGS, MADE
 VARIOUS COMMENTS TO KILLEN REGARDING HER RATING AND RANKING.  THE
 CREDITED TESTIMONY OF KILLEN REFLECTS THAT BARNES TOLD HER THAT SHE WAS
 "INDOCTRINATED BY MANAGEMENT," THAT SHE "RATED UNFAIRLY," AND THAT SHE
 "HAD BEEN TOLD HOW TO RATE." KILLEN TESTIFIED FURTHER THAT BARNES "WAS
 VERY LOUD." BASED ON THESE STATEMENTS, WHICH KILLEN DESCRIBED AS
 EMBARRASSING AND CONSTITUTING AN ATTEMPT TO INTIMIDATE HER, AND AN
 INCIDENT INVOLVING HER SUPERVISOR AND BARNES THE NEXT DAY, KILLEN WROTE
 A LETTER COMPLAINING ABOUT BARNES TO COLONEL CRUM, HEAD OF THE
 DIRECTORATE WHERE SHE AND BARNES ARE EMPLOYED.  COLONEL CRUM, AFTER
 INVESTIGATION, GAVE BARNES AN ORAL REPRIMAND, BASED SOLELY ON HIS
 CONDUCT AT THE RATING AND RANKING PANEL, WHICH CRUM CONSIDERED TO BE
 "DETRIMENTAL TO THE MORALE AND DISCIPLINE WITHIN THE ORGANIZATION." /2/
 
    THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE CREDIBLE EVIDENCE
 OVERWHELMINGLY SHOWED THE ORAL REPRIMAND TO HAVE BEEN BASED SOLELY ON
 BARNES' PERSONAL CONDUCT TOWARDS ANOTHER EMPLOYEE DURING THE PANEL
 MEETING, WHICH CONSTITUTED OFFICIAL AGENCY BUSINESS.  WHILE THE
 ADMINISTRATIVE LAW JUDGE ACKNOWLEDGED THAT BARNES WAS A UNION
 REPRESENTATIVE ON THE PANEL, HE FOUND NO VIOLATION BECAUSE UNION ANIMUS
 PLAYED NO PART IN THE REPRIMAND.  THE AUTHORITY CONCLUDES THAT BARNES
 WAS ENGAGED IN PROTECTED UNION ACTIVITY WHILE SERVING ON THE PANEL,
 BECAUSE HE WAS THE UNION-SELECTED MEMBER PURSUANT TO THE PARTIES'
 NEGOTIATED AGREEMENT.  WE DO NOT VIEW HIS ACTIVITY TO HAVE LOST ITS
 PROTECTION BY VIRTUE OF ITS ALLEGED IMPROPRIETY.  IN THIS REGARD, IN A
 RECENT DECISION THE AUTHORITY NOTED THAT NOT EVERY ALLEGED IMPROPRIETY
 COMMITTED BY AN EMPLOYEE WHILE OTHERWISE ENGAGED IN PROTECTED ACTIVITY
 IS BEYOND THE AMBIT OF THE PROTECTED ACTIVITY.  TO REMOVE THE CONDUCT
 FROM THE AMBIT OF THE PROTECTION, THE EMPLOYEE MUST BE FOUND TO HAVE
 ENGAGED IN FLAGRANT MISCONDUCT.  /3/ IN THE CIRCUMSTANCES OF THE INSTANT
 CASE, ALTHOUGH THE AUTHORITY DOES NOT ENDORSE THE TONE OF THE STATEMENTS
 MADE BY BARNES TO KILLEN DURING THE PANEL DISCUSSION, THE STATEMENTS
 REPRESENTED THE LEGITIMATE CONCERN OF A UNION REPRESENTATIVE REGARDING
 RANKINGS BY PANEL MEMBERS SELECTED BY MANAGEMENT AND DO NOT REPRESENT
 THE KIND OF FLAGRANT MISCONDUCT WHICH IS BEYOND THE AMBIT OF PROTECTED
 ACTIVITY.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE ORAL REPRIMAND
 GIVEN BARNES WAS VIOLATIVE OF SECTION 19(A)(1) AND (2) OF THE ORDER AS
 IT WAS BASED ON BARNES' CONDUCT WHILE HE WAS ENGAGED IN PROTECTED
 ACTIVITY.
 
                                   ORDER
 
    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 DEPARTMENT OF THE ARMY, HEADQUARTERS, MILITARY TRAFFIC
 MANAGEMENT COMMAND, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REPRIMANDING OR OTHERWISE DISCRIMINATING AGAINST THOMAS O.
 BARNES, OR ANY OTHER
 
    EMPLOYEE, WITH RESPECT TO CONDITIONS OF EMPLOYMENT BECAUSE SUCH
 EMPLOYEE ENGAGED IN PROTECTED
 
    ACTIVITY WHILE SERVING ON BEHALF OF THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL
 
    909, AFL-CIO, ON A RATING AND RANKING PANEL.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE EXECUTIVE ORDER.
 
    2. TAKE THE FOLLOWING AFFIRMATIVE ACTION TO EFFECTUATE THE PURPOSES
 OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) REMOVE OR EXPUNGE FROM ITS FILES ANY REFERENCE TO THE ORAL
 REPRIMAND GIVEN THOMAS
 
    O. BARNES ON OCTOBER 26, 1977, AND SUBMIT TO THOMAS O. BARNES A
 WRITTEN ACKNOWLEDGEMENT OF
 
    THAT ACTION.
 
    (B) POST AT THE FACILITIES OF THE DEPARTMENT OF THE ARMY,
 HEADQUARTERS, MILITARY TRAFFIC
 
    MANAGEMENT COMMAND, 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 COMMANDING OFFICER OF THE DEPARTMENT OF THE ARMY, HEADQUARTERS,
 MILITARY TRAFFIC COMMAND,
 
    AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
 DAYS THEREAFTER IN
 
    CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
 ARE CUSTOMARILY
 
    POSTED.  THE COMMANDING OFFICER 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.
 
    IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN
 ASSISTANT SECRETARY CASE NO. 22-09049(CA) FOUND NOT TO BE VIOLATIVE OF
 THE EXECUTIVE ORDER BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, 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 OUR EMPLOYEES THAT:
 
    WE WILL NOT REPRIMAND OR OTHERWISE DISCRIMINATE AGAINST THOMAS O.
 BARNES, OR ANY OTHER EMPLOYEE, WITH RESPECT TO CONDITIONS OF EMPLOYMENT
 BECAUSE SUCH EMPLOYEE ENGAGED IN PROTECTED ACTIVITY WHILE SERVING ON
 BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 909,
 AFL-CIO, ON A RATING AND RANKING PANEL.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL REMOVE OR EXPUNGE FROM OUR FILES ANY REFERENCE TO THE ORAL
 REPRIMAND GIVEN THOMAS O. BARNES ON OCTOBER 26, 1977, AND SUBMIT TO
 THOMAS O. BARNES A WRITTEN ACKNOWLEDGEMENT OF THAT ACTION.
 
                           (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, FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS
 1730 K STREET, NW., ROOM 401, WASHINGTON, D.C., AND WHOSE TELEPHONE
 NUMBER IS:  (202) 653-7213.
 
    MR. HARRY F. RAGER
 
    NATIONAL REPRESENTATIVE
 
    AMERICAN FEDERATION OF
 
    GOVERNMENT EMPLOYEES, AFL-CIO
 
    14TH DISTRICT
 
    8020 NEW HAMPSHIRE AVENUE
 
    HYATTSVILLE, MARYLAND 20783
 
                            FOR THE COMPLAINANT
 
    WILLIAM J. MERRIGAN, ESQUIRE
 
    MILITARY TRAFFIC MANAGEMENT COMMAND
 
    DEPARTMENT OF THE ARMY
 
    WASHINGTON, D.C. 20315
 
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREINAFTER ALSO REFERRED TO AS THE "ORDER").  ALTHOUGH THE NOTICE OF
 HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
 SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, AND
 PROCEEDINGS WERE, IN PART, CONDUCTED BEFORE THE ASSISTANT SECRETARY OF
 LABOR FOR LABOR-MANAGEMENT RELATIONS, ALL PROCEEDINGS AFTER JANUARY 1,
 1979, WERE CONDUCTED BEFORE THE AUTHORITY AND THIS DECISION IS ISSUED IN
 THE NAME OF THE AUTHORITY, PURSUANT TO TRANSITION RULES AND REGULATIONS,
 FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION
 2400.2).
 
    THIS MATTER WAS INITIATED BY COMPLAINANT'S CHARGE, DATED FEBRUARY 27,
 1978 (ALJ EXH. 3) AND COMPLAINT, DATED MAY 26, 1978, FILED MAY 30, 1978
 (ALJ EXH. 1), TO WHICH RESPONDENT REPLIED BY LETTER DATED JUNE 9, 1978
 (ALJ EXH. 1).  THE CHARGE AND THE COMPLAINT HAD ALLEGED VIOLATIONS OF
 SECTIONS 19(A)(1), (2), (3);  SECTION 10(E) AND SECTION 19(D) OF THE
 ORDER.  ON OCTOBER 5, 1978, THE REGIONAL ADMINISTRATOR ADVISED
 COMPLAINANT THAT HE WAS PREPARED TO ISSUE A NOTICE OF HEARING ON THE
 FOLLOWING ISSUES:
 
    "(1) WAS THOMAS O. BARNES ISSUED AN ORAL REPRIMAND ON OCTOBER 26,
 1977 BECAUSE OF HIS UNION
 
    ACTIVITIES IN VIOLATION OF SECTIONS 19(A)(1) AND (2) OF THE ORDER.
 
    "(2) WAS THOMAS O. BARNES 'THREATENED' BY ACTIVITY REPRESENTATIVES ON
 OCTOBER 12, 19, 21
 
    AND 26, 1977, IN VIOLATION OF SECTIONS 19(A)(1) OF THE ORDER FOR
 EXERCISING HIS RIGHTS
 
    GUARANTEED BY THE EXECUTIVE ORDER 11491, AS AMENDED.
 
    "(3) DID THE ACTIVITY'S SEPTEMBER 1, 1977 LETTER TO THE UNION
 PROHIBITING THOMAS BARNES
 
    FROM SERVING ON RATING AND RANKING PANELS CONSTITUTE A VIOLATION OF
 SECTIONS 19(A)(1) AND (3)
 
    OF THE ORDER." /4/
 
    EXCEPT AS TO THE THREE ISSUES STATED BY THE REGIONAL ADMINISTRATOR,
 WHICH PURPORTEDLY WERE BASED AN ALLEGATIONS 1, 2 AND 7 OF THE
 COMPLAINANT'S CHARGE, THE REGIONAL ADMINISTRATOR DISMISSED ALL OTHER
 PORTIONS OF THE COMPLAINT, INCLUDING ALLEGATIONS 3, 4, 5, 6 AND 8 AS SET
 FORTH IN COMPLAINANT'S CHARGE, AND ADVISED COMPLAINANT OF ITS RIGHT,
 PURSUANT TO SECTION 203.8 OF THE REGULATIONS, TO APPEAL THE PORTIONS OF
 HIS DECISION DISMISSING ALLEGATIONS OF THE COMPLAINT.  NO APPEAL WAS
 FILED AND ON NOVEMBER 14, 1978, THE REGIONAL ADMINISTRATOR ISSUED A
 NOTICE OF HEARING ON THE ALLEGED VIOLATION OF SECTIONS 19(A)(1) AND (2)
 AND (3) OF THE ORDER, AS MORE SPECIFICALLY STATED IN ITS REGIONAL
 ADMINISTRATOR'S LETTER OF OCTOBER 5, 1978.  THE NOTICE OF HEARING SET
 THE HEARING FOR JANUARY 29, 1979, HOWEVER, ON JANUARY 3, 1979, AT
 COMPLAINANT'S REQUEST AND FOR GOOD CAUSE SHOWN, THE HEARING WAS
 RESCHEDULED FOR FEBRUARY 1, 1979 (ALJ EXH. 2), PURSUANT TO WHICH A
 HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON FEBRUARY 1, 1979, IN
 WASHINGTON, D.C.
 
    ALL PARTIES WERE REPRESENTED, WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES INVOLVED HEREIN, AND TO PRESENT ORAL ARGUMENT.  AT
 THE CLOSE OF THE HEARING, MARCH 1, 1979, WAS FIXED AS THE DATE FOR
 MAILING BRIEFS AND BRIEFS, TIMELY FILED, HAVE BEEN RECEIVED FROM BOTH
 PARTIES AND HAVE BEEN CAREFULLY CONSIDERED.  UPON THE BASIS OF THE
 ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND ORDER.
 
                            PRELIMINARY MATTER
 
    IN ITS RESPONSE TO THE COMPLAINT, DATED JUNE 9, 1978, RESPONDENT HAD
 MOVED TO DISMISS THE COMPLAINT, INTER ALIA, FOR FAILURE OF COMPLAINANT
 TO COMPLY WITH SECTION 203.3(A) OF THE REGULATIONS.  AT THE HEARING,
 RESPONDENT FILED A MOTION TO DISMISS ISSUE NO. 2 FOR FAILURE TO COMPLY
 WITH SECTION 203.3(A)(3) OF THE REGULATIONS AND TO DISMISS ISSUE NO.  3,
 AS SET FORTH IN THE REGIONAL ADMINISTRATOR'S LETTERS OF OCTOBER 25,
 1978, AND NOVEMBER 19, 1978, FOR THE REASON THAT THE ISSUE STATED BY THE
 REGIONAL ADMINISTRATOR CONCERNING RESPONDENT'S SEPTEMBER 1, 1977, LETTER
 BY COMPLAINANT PROHIBITING THOMAS BARNES FROM SERVING ON RATING AND
 RANKING PANELS HAD NOT BEEN CONTAINED IN THE COMPLAINT.  RESPONDENT'S
 MOTION TO DISMISS WAS DENIED AT THE HEARING BUT IS REASSERTED BY
 RESPONDENT IN ITS BRIEF.
 
    THERE IS CONSIDERABLE MERIT TO RESPONDENT'S CONTENTIONS AND
 ESPECIALLY SO AS TO ISSUE NO. 3.  WITH RESPECT TO THE SEPTEMBER 1, 1977,
 LETTER, WHICH IS THE BASIS OF ISSUE NO. 3, RESPONDENT IS CORRECT THAT NO
 ALLEGATION CONCERNING THIS MATTER APPEARS IN COMPLAINANT'S SIX PAGE
 CHARGE OF FEBRUARY 27, 1978 (ALJ EXH. 3), ALTHOUGH, THE ALLEGATION DOES
 APPEAR IN A CHRONOLOGY OF EVENTS ATTACHED TO THE CHARGE (ALJ EXH. 4) (A
 DOCUMENT CONSISTING OF ANOTHER 7 PAGES).  NOR, INDEED, IS THERE ANY
 ALLEGATION IN THE COMPLAINT CONCERNING THE SEPTEMBER 1, 1977, LETTER.
 THE ONLY CONCEIVABLE "REFERENCE" TO ANY SUCH ALLEGATION IS THE STATEMENT
 IN THE COMPLAINT THAT, "A CHRONOLOGY OF EVENTS IS AT ENCLOSURE 1 TO THE
 UNFAIR LABOR PRACTICE CHARGE." THE COMPLAINT STATES THAT COMPLAINANT
 "ALLEGES EIGHT (8) SPECIFIC INSTANCES WHERE RESPONDENT VIOLATED E. O.
 11491, AND THE SPECIFICS OF THESE EIGHT VIOLATIONS ARE CONTAINED IN THE
 ULP ITSELF." CLEARLY, COMPLAINANT'S USE OF THE TERM "ULP" REFERS TO ITS
 CHARGE OF FEBRUARY 27, 1978, AND NONE OF THE EIGHT "SPECIFIC INSTANCES"
 ALLEGED IN THE CHARGE REFERS TO THE LETTER OF SEPTEMBER 1, 1977, OR
 MAKES ANY ASSERTION THAT MR. BARNES WAS PROHIBITED FROM SERVING ON
 FUTURE RATING AND RANKING PANELS.  THE ASSISTANT SECRETARY HAS HELD THAT
 THE REGULATIONS MAY NOT BE SO LIBERALLY APPLIED,
 
    "AS TO READ INTO A COMPLAINT ALLEGATIONS CONTAINED IN A PRE-COMPLAINT
 CHARGE BUT NOT
 
    CONTAINED IN THE SUBSEQUENTLY FILED COMPLAINT." UNITED STATES AIR
 FORCE, 380TH COMBAT SUPPORT
 
    GROUP, PLATTSBURGH AIR FORCE BASE, NEW YORK, A/SLMR NO. 557, 5 A/SLMR
 592, 593(1975) A FORTARI, AN ALLEGATION NOT CONTAINED IN A PRE-COMPLAINT
 CHARGE, BUT MERELY CONTAINED IN AN ENCLOSURE FILED WITH THE CHARGE
 ENTITLED "CHRONOLOGY OF EVENTS", MAY NOT BE READ INTO THE INSTANT
 COMPLAINT.  THE "BASIS OF THE COMPLAINT" DOES NOT SET FORTH ANY FACTS
 THAT WOULD GIVE ANY BASIS, MUCH LESS "A REASONABLE BASIS" TO BELIEVE
 THAT ANY VIOLATION HAD OCCURRED WITH RESPECT TO ANY LETTER IN SEPTEMBER
 1, 1977, WHICH WAS NOT ALLEGED, WITH RESPECT TO ANY PROHIBITION ON
 THOMAS BARNES SERVING ON RATING AND RANKING PANELS, WHICH WAS NOT
 ALLEGED, OR THAT THERE WAS ANY VIOLATION OF SECTIONS 9(A)(1) AND (E) OF
 THE ORDER IN SUCH RESPECT, WHICH WAS ALSO NOT ALLEGED.  BECAUSE THERE
 WAS NO "CLEAR AND CONCISE STATEMENT OF THE FACTS CONSTITUTING THE
 ALLEGED UNFAIR LABOR PRACTICE . . . AND THE TIME AND PLACE OF OCCURENCE
 OF THE PARTICULAR ACTS", AS REQUIRED BY SECTION 203.3(3) OF THE
 REGULATIONS, 29 C.F.R. SECTION 203.3(3), TO SUPPORT ISSUE NO.  3, THE
 REGIONAL ADMINISTRATOR ERRED IN HIS LETTER OF OCTOBER 5, 1978 (ALJ EXH.
 5) IN HIS DELINEATION OF ISSUE NO. 3 /4/ AND I ERRED IN NOT GRANTING
 RESPONDENT'S MOTION TO DISMISS ISSUE NO. 3 AT THE HEARING.  RESPONDENT
 HAS FULLY PRESERVED ITS POSITION, HAS PROPERLY RENEWED ITS REQUEST IN
 ITS BRIEF AND, ISSUE NO. 3, SPECIFICALLY,
 
    "(3) DID THE ACTIVITY'S SEPTEMBER 1, 1977, LETTER TO THE UNION
 PROHIBITING THOMAS BARNES
 
    FROM SERVING ON RATING AND RANKING PANELS CONSTITUTE A VIOLATION OF
 SECTION 19(A)(1) AND (3)
 
    OF THE ORDER" IS HEREBY DISMISSED /5/ FOR THE REASONS THAT:  (A) THE
 COMPLAINT CONTAINS NO SUCH ALLEGATION AND THE COMPLAINT CONTAINS NEITHER
 A CLEAR AND CONCISE STATEMENT OF ANY FACTS CONSTITUTING THE ALLEGED
 UNFAIR LABOR PRACTICE NOR THE TIME AND PLACE OF OCCURENCE OF THE
 PARTICULAR ACT;  (B) THE CHARGE CONTAINED NO SUCH ALLEGATION, BUT, EVEN
 IF IT HAD, SUCH ALLEGATION MAY NOT BE READ INTO THE COMPLAINT;  AND (C)
 NO MATTER WHAT THE REGIONAL ADMINISTRATOR MAY HAVE "ADDUCED", THE
 REGIONAL ADMINISTRATOR HAS NO AUTHORITY UNDER THE REGULATIONS TO ORDER A
 HEARING ON AN ISSUE THAT CANNOT REASONABLY BE FOUND IN THE COMPLAINT
 SIMPLY BECAUSE HIS INVESTIGATION MAY HAVE REVEALED THAT SUCH A VIOLATION
 MIGHT HAVE OCCURRED.  AS WELL STATED BY JUDGE KRAMER IN THE PLATTSBURGH
 CASE, SUPRA, "THE NOTICE OF HEARING IS DENOMINATED A 'NOTICE OF HEARING
 ON COMPLAINT'.  SECTION 203.8 OF THE REGULATIONS AUTHORIZES THE
 ASSISTANT REGIONAL DIRECTOR TO ISSUE A NOTICE OF HEARING IF HE FINDS
 'THERE IS A REASONABLE BASIS FOR THE COMPLAINT'.  IT DOES NOT AUTHORIZE
 HIM TO ISSUE A NOTICE OF HEARING ON A COMPLAINT THAT HAS NOT BEEN
 FILED." (5A/SLMR AT 595).  THE ASSISTANT SECRETARY AFFIRMED, STATING, IN
 PART, AS FOLLOWS:
 
    "IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
 ASSISTANT REGIONAL
 
    DIRECTOR IMPROPERLY ISSUED A NOTICE OF HEARING IN THIS MATTER ON AN
 ALLEGATION WHICH WAS NOT
 
    ALLEGED IN THE COMPLAINT."
 
    CF., UNITED STATES DEPARTMENT OF THE ARMY, FORT POLK, LOUISIANA,
 A/SLMR NO. 1100(1978);  PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION, MEBA, AFL-CIO, A/SLMR NO. 878, 7 A/SLMR 640(1977).
 
    AS TO ISSUE NO. 2,
 
    "(2) WAS THOMAS O. BARNES 'THREATENED' BY ACTIVITY REPRESENTATIVES ON
 OCTOBER 12, 19, 21,
 
    AND 26, 1977 IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER FOR
 EXERCISING HIS RIGHTS
 
    GUARANTEED BY THE EXECUTIVE ORDER 11491, AS AMENDED." (ALJ EXH.  5)
 
    RESPONDENT IS CORRECT THAT THE COMPLAINT IS SORELY DEFICIENT INSOFAR
 AS STATING A "CLEAR AND CONCISE STATEMENT OF THE FACTS" CONSTITUTING A
 THREAT ON ANY OCCASION.  INDEED, THE ONLY BASIS FOR ANY SUCH ALLEGATION
 IS ALLEGATION NO. 2 OF THE CHARGE.  ACCEPTING INCORPORATION OF
 ALLEGATION NO. 2 OF THE CHARGE, THE ALLEGATION WOULD BE:
 
    "THE THREATENING REMARKS AND STATEMENTS COL. CRUM AND ENGLE MADE TO
 MR. BARNES ON OCTOBER
 
    12, OCT. 19, OCT. 21, AND OCT. 26, 1977, VIOLATED BARNES' RIGHTS
 ASSURED BY THE ORDER,
 
    . . . " (ALJ EXH. 3).
 
    WHILE ALLEGATION NO. 2 OF THE CHARGE IS, ITSELF, DEVOID OF A CLEAR
 AND CONCISE STATEMENT OF THE FACTS, INASMUCH AS SPECIFIC DATES AND
 PERSONS ARE IDENTIFIED, ALLEGATION NO. 2 OF THE CHARGE, AS ONE OF THE
 EIGHT SPECIFIC INSTANCES SET FORTH IN THE CHARGE (ULP) WHICH COMPLAINANT
 HAS INCORPORATED BY REFERENCE, WILL BE DEEMED SUFFICIENT TO WARRANT
 DENIAL OF RESPONDENT'S MOTION TO DISMISS.  NEVERTHELESS, THE PRACTICE OF
 INCORPORATING ANY ALLEGATION OF A CHARGE AS PART OF THE COMPLAINT,
 WITHOUT SETTING FORTH IN THE COMPLAINT A CLEAR AND CONCISE STATEMENT OF
 THE FACTS CONSTITUTING THE ALLEGED UNFAIR LABOR PRACTICE, THE TIME AND
 PLACE OF OCCURRENCE OF THE PARTICULAR ACTS, ETC., AS REQUIRED BY SECTION
 203.(3) OF THE REGULATIONS, IS NOT APPROVED AND, ORDINARILY, WILL NOT
 SATISFY THE REQUIREMENTS OF THE REGULATIONS.  IN THE INSTANT PROCEEDING,
 COMPLAINANT DID REFER IN THE COMPLAINT TO THE EIGHT "SPECIFIC INSTANCES"
 CONTAINED IN ITS CHARGE, OF WHICH ALLEGATION NO. 2 WAS ONE OF THE EIGHT
 "SPECIFIC INSTANCES";  AND RESPONDENT WAS FULLY APPRISED THAT
 COMPLAINANT SOUGHT TO INCORPORATE ALLEGATION NO. 2 IN ITS COMPLAINT.
 /6/ ACCORDINGLY, THE DENIAL OF RESPONDENT'S MOTION TO DISMISS ISSUE NO.
 2 MADE AT THE HEARING IS AFFIRMED.
 
                         FINDINGS AND CONCLUSIONS
 
    A.  THE ORAL REPRIMAND
 
    ON OCTOBER 26, 1977, MR. THOMAS BARNES WAS GIVEN AN ORAL REPRIMAND BY
 COLONEL LUTHER CRUM, DIRECTOR OF MANAGEMENT INFORMATION SYSTEMS IN WHICH
 MR. BARNES IS EMPLOYED.
 
    THE EVENTS WHICH LED TO THE ORAL REPRIMAND BEGAN WITH THE CONVENING
 OF AN AD HOC COMMITTEE FOR EVALUATION AND RANKING, PURSUANT TO SECTION
 VII, MERIT PROMOTION AND INTERNAL PLACEMENT PLAN, HEADQUARTERS, MILITARY
 TRAFFIC MANAGEMENT COMMAND STAFF REGULATIONS (RESP. EXH. 4).  PURSUANT
 TO SECTION VII OF THE STAFF REGULATIONS AND ARTICLE XVIII, SECTION 3, OF
 THE PARTIES' THEN EFFECTIVE AGREEMENT, /7/ (RESP. EXH. 5) SUCH
 COMMITTEES WILL INCLUDE ONE UNION REPRESENTATIVE.  THUS, ARTICLE XVIII,
 SECTION 3, PROVIDED, FOR EXAMPLE, THAT, "THE UNION WILL HAVE ONE
 PARTICIPATING MEMBER ON AD HOC COMMITTEES FORMED TO PERFORM THE
 EVALUATING AND RANKING PROCESS".  MR. BARNES WAS THE UNION
 REPRESENTATIVE ON THE AD HOC COMMITTEE WHICH WAS CONVENED ON SEPTEMBER
 1, 1977.  THE OTHER MEMBERS OF THE COMMITTEE WERE:  JOANNE KILLEN AND
 JACKIE FLEMING.  SHERRIE HOLLIMAN, PERSONNEL MANAGEMENT SPECIALIST, WAS
 PRESENT TO INSTRUCT THE MEMBERS OF THE COMMITTEE IN THEIR DUTIES, TO
 COORDINATE AND TO ASSIST THE COMMITTEE.  MS. HOLLIMAN GAVE EACH MEMBER
 OF THE COMMITTEE (PANEL MEMBERS) A COPY OF "RESPONSIBILITIES OF RATING
 AND RANKING PANEL MEMBERS" (RESP. EXH. 7), INSTRUCTED THE PANEL MEMBERS
 AS TO THE PROCEDURE AND FORMS TO BE USED AND GAVE THEM THE PERSONNEL
 FILES OF THE CANDIDATES TO BE EVALUATED AND RANKED AND RATING OF EACH
 CANDIDATE.  WHEN THE PANEL MEMBERS HAD COMPLETED THEIR INDIVIDUAL
 RANKING AND RATING OF EACH CANDIDATE, MS. HOLLIMAN RETURNED AND COLLATED
 THE RESULTS AND, WHERE THERE WERE SIGNIFICANT VARIATIONS IN THE RATINGS
 BY THE MEMBERS OF THE PANEL, THERE WAS DISCUSSION IN AN EFFORT TO INSURE
 THAT EACH MEMBER HAD RATED CONSISTENTLY, IN ACCORDANCE WITH THE
 GUIDELINES (RESP. EXH. 7), AND, IF POSSIBLE, TO ARRIVE AT A CONSENSUS.
 THAT ACRIMONY DISPLACED OBJECTIVE DISCUSSION IS BEYOND DOUBT.  INDEED,
 MS. KILLEN WAS SO DISTURBED BY MR. BARNES' CONDUCT, WHICH SHE FOUND TO
 HAVE BEEN SO ABUSIVE THAT SHE HAD BEEN EMBARRASSED AND RIDICULED AND HIS
 LANGUAGE DEGRADING, THAT SHE WENT TO COLONEL CRUM THE FOLLOWING DAY,
 SEPTEMBER 2, AND ASKED WHAT COULD BE DONE.  COLONEL CRUM TOLD MS. KILLEN
 THAT IF SHE HAD ANY COMPLAINT SHE SHOULD PUT IT IN WRITING AND HE WOULD
 HAVE IT INVESTIGATED;  BUT, RECOGNIZING THAT MS. KILLEN WAS STILL VERY
 UPSET, URGED HER TO THINK IT OVER FOR A FEW DAYS.  MS. KILLEN DID SO BUT
 ON SEPTEMBER 23, 1977, SHE WROTE COLONEL CRUM AND SET FORTH HER
 COMPLAINT IN WRITING.
 
    IN THE MEANTIME, MR. BARNES HAD WRITTEN AND MR. EDGAR CAMPBELL, JR.,
 PRESIDENT OF LOCAL 909, HAD SIGNED A LETTER DATED SEPTEMBER 2, 1977,
 ADDRESSED TO MR. TERRY W.  MCCLEARY, CIVILIAN PERSONNEL OFFICER (RESP.
 EXH. 1) AND ABOUT 10:30 A.M. ON SEPTEMBER 2, 1977, MR.  BARNES WENT,
 UNANNOUNCED, TO SEE MRS. KNARR, MS. KILLEN'S IMMEDIATE SUPERVISOR, TO
 INFORM HER, MR.  BARNES ASSERTED, OF THE CONTENT OF THE LETTER "THE
 UNION HAD WRITTEN TO THE CIVILIAN PERSONNEL OFFICE (RESP. EXH. 1)
 CONCERNING THE-- MRS. KILLEN'S CONDUCT ON THE PANEL AND HER REFUSAL TO
 FOLLOW THE MERIT PROMOTION PLAN AND HOW THIS HAD A DISRUPTIVE EFFECT ON
 ME." (TR. 70).
 
    ON OCTOBER 7, 1977, COLONEL CRUM DIRECTED MR. GILBERT G. ENGLE,
 CHIEF, SYSTEMS DESIGN AND MAINTENANCE DIVISION, TO INVESTIGATE THE
 MATTERS SET FORTH IN MS.  KILLEN'S LETTER OF SEPTEMBER 23,1977.  MR.
 ENGLE PROCEEDED TO DO SO AND FIRST INTERVIEWED MR.  BARNES ON OCTOBER
 11, 1977;  MS. KILLEN, MS. FLEMING AND MS. HOLLIMAN ON OCTOBER 13, 1977.
  MR. ENGLE TESTIFIED THAT HE CONCLUDED, ON THE BASIS OF HIS
 INVESTIGATION, THAT MS. KILLEN'S DESCRIPTION OF THE INCIDENT WAS
 CORRECT;  THAT MS. KILLEN HAD FELT INTIMIDATED AND THREATENED BY MR.
 BARNES' WORDS AND BEHAVIOR;  THAT UNDER PERSONNEL REGULATIONS HE WAS
 SHOWN SAID DISRUPTIVE BEHAVIOR WOULD HAVE WARRANTED A SUSPENSION;  BUT
 THAT HE FELT AN ORAL REPRIMAND WAS APPROPRIATE AND ON OCTOBER 18, 1977,
 HE RECOMMENDED TO COLONEL CRUM THAT MR. BARNES BE GIVEN AN ORAL
 REPRIMAND.  AS NOTED ABOVE, COLONEL CRUM GAVE MR. BARNES AN ORAL
 REPRIMAND ON OCTOBER 26, 1977.
 
    IT IS NOT THE FUNCTION OF THE UNFAIR LABOR PRACTICE PROCEDURE TO
 INQUIRE INTO PERFORMANCE OF THE MEMBERS OF THE RATING AND RANKING PANEL,
 INDEED, IT IS NOT EVEN WITHIN THE PROVINCE OF THIS PROCEEDING TO
 QUESTION WHETHER THE ORAL REPRIMAND WAS PROPER OR IMPROPER;  BUT,
 RATHER, THE SCOPE OF THIS PROCEEDING IS LIMITED TO DETERMINING:  (A)
 WHETHER RESPONDENT BY SUCH ORAL REPRIMAND, INTERFERED WITH, RESTRAINED,
 OR COERCED MR. BARNES IN THE EXERCISE OF THE RIGHTS ASSURED BY THE
 ORDER, AND/OR (B) WHETHER RESPONDENT BY SUCH ORAL REPRIMAND ENCOURAGED
 OR DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
 REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
 (I.E. SECTION'S 19(A)(1) AND/OR (2) OF THE ORDER).  FOR REASONS MORE
 FULLY SET FORTH HEREINAFTER, I FIND THAT RESPONDENT DID NOT VIOLATE
 EITHER SECTION 19(A)(1) OR (2) BY ITS ORAL REPRIMAND OF MR. BARNES.
 
    I DID NOT FIND MR. BARNES TO BE A CONVINCING WITNESS.  NOT ONLY DID
 HIS REPEATED INTERJECTION OF IRRELEVANT COMMENTS CREATE THE IMPRESSION
 OF EVASION OF THE QUESTION ASKED;  BUT, MORE IMPORTANT, IN SIGNIFICANT
 RESPECTS HIS TESTIMONY WAS WHOLLY LACKING IN CREDIBILITY.  FOR EXAMPLE,
 MR. BARNES STATED THAT THE PURPOSE OF THE REPRIMAND WAS NEVER EXPLAINED;
  THAT HE WAS "PROVIDED NOTHING BY ANYONE";  BUT LATER MR. BARNES
 ADMITTED THAT MR. ENGLE HAD STATED THE PURPOSE OF HIS INVESTIGATION,
 NAMELY, TO INVESTIGATE MR.BARNES' ALLEGED CONDUCT, OR MISCONDUCT, BASED
 UPON MRS. KILLEN'S LETTER TO COLONEL CRUM DATED SEPTEMBER 23, 1977;
 THAT MR. ENGLE SUMMARIZED WHAT SHE SAID;  AND MR. BARNES ADMITTED THAT
 HE RECEIVED A COPY OF MS. KILLEN'S LETTER, DATED SEPTEMBER 23, 1977, ON
 OCTOBER 19, 1977.  MR. BARNES TESTIFIED THAT AT THE MEETING IN COLONEL
 CRUM'S OFFICE ON OCTOBER 26, 1977, HE FEARED FOR HIS LIFE.  THIS WOULD
 HAVE BEEN A HIGHLY IMPROBABLE ASSERTION UNDER ANY CIRCUMSTANCES IN VIEW
 OF MR. BARNES' OWN PHYSICAL STATURE (6' 4", 230-235 POUNDS);  BUT UNDER
 THE ACTUAL CIRCUMSTANCES WAS LUDICROUS IN VIEW OF THE FACT THAT MR.
 BARNES WAS ACCOMPANIED BY THREE REPRESENTATIVES, MESSRS. CAMPBELL,
 FORBES AND BROWN, AS WELL AS MR. BARNES' CONDUCT AND ACTIONS, INCLUDING
 HIS ANNOUNCING, WHEN EVERYONE WAS LEAVING, "HOLD IT, ANOTHER UNION
 MEETING" AND THEN PROCEEDING TO READ A STATEMENT IN WHICH HE SAID, INTER
 ALIA, THAT HE WOULD GET COLONEL CRUM AND MR. ENGLE FIRED OR RELIEVED.
 
    BY COMPARISON, I FOUND COLONEL CRUM AND MR. ENGLE TO BE VERY CREDIBLE
 WITNESSES AND, ACCORDINGLY I FULLY CREDIT THEIR TESTIMONY.  THE RECORD
 SHOWS THAT MS. KILLEN FIRST WENT TO COLONEL CRUM ON SEPTEMBER 2, 1977;
 THAT COLONEL CRUM TOLD HER THAT ANY COMPLAINT WOULD HAVE TO BE MADE IN
 WRITING;  THAT ANY COMPLAINT FILED WOULD BE INVESTIGATED;  BUT HE URGED
 MS. KILLEN TO THINK THE MATTER OVER BEFORE TAKING ANY ACTION.  MS.
 KILLEN, ON SEPTEMBER 23, 1977, WROTE COLONEL CRUM ABOUT MR. BARNES'
 CONDUCT;  AND ON OCTOBER 7, 1977, COLONEL CRUM INSTRUCTED MR. ENGLE TO
 INVESTIGATE THE INCIDENT DESCRIBED IN MS. KILLEN'S LETTER OF SEPTEMBER
 23, 1977, WHICH MR. ENGLE PROCEEDED TO DO.  THUS, ON OCTOBER 11, 1977,
 HE INTERVIEWED MR. BARNES AT WHICH TIME HE EXPLAINED THE PURPOSE OF HIS
 INVESTIGATION.  ON OCTOBER 13, 1977, MR. ENGLE INTERVIEWED MS.  KILLEN,
 MS. FLEMING OR MS. HOLLIMAN, ALTHOUGH THE STATEMENT OF MS. HOLLIMAN
 (RESP. EXH. 8) WAS INTRODUCED WITHOUT OBJECTION BY COMPLAINANT.  WHILE
 MR. BARNES TESTIFIED THAT HE TALKED TO MS.  FLEMING ON SEPTEMBER 8,
 1977, AT WHICH TIME HE STATED THAT MS. FLEMING TOLD HIM SHE HAD NOT BEEN
 APPROACHED BY MANAGEMENT;  BUT THE INFERENCE BY MR. BARNES THAT MR.
 ENGLE DID NOT, IN FACT, INTERVIEW MS.  FLEMING IS WITHOUT BASIS SINCE
 MR. ENGLE TESTIFIED THAT HE TALKED TO MS. FLEMING ON OCTOBER 13, 1977,
 MORE THAN A MONTH AFTER MR. BARNES STATED HIS CONVERSATION HAD TAKEN
 PLACE.  MS. KILLEN TESTIFIED AND HER TESTIMONY WAS WHOLLY CREDIBLE, IS
 CONSISTENT WITH, AND SUPPORTED BY, THE STATEMENT OF MS. HOLLIMAN AND MR.
 ENGLE'S TESTIMONY REGARDING HIS INTERVIEW WITH MS. FLEMING.
 
    ON OCTOBER 12, 1977, MR. BARNES ADMITTED THAT HE WENT TO COLONEL
 CRUM'S OFFICE TO CONFIRM MR. ENGLE'S HAVING BEEN "TASKED" BY COLONEL
 CRUM TO INVESTIGATE.  MR.  BARNES TESTIFIED THAT HE INFORMED COLONEL
 CRUM OF RESPONDENT'S OCTOBER 7, 1977, UNFAIR LABOR PRACTICE CHARGE.  I
 FULLY CREDIT COLONEL CRUM'S TESTIMONY THAT MR. BARNES STATED THAT HE,
 COLONEL CRUM, HAD NO AUTHORITY IN THE CASE THAT THIS WAS HARASSMENT;
 THAT HE (COLONEL CRUM) COULD NOT PURSUE THIS MATTER BECAUSE HE (BARNES)
 WAS A UNION OFFICER AT WHICH POINT COLONEL CRUM RESPONDED, "MR.  BARNES,
 I DO NOT AGREE WITH YOU.  I DO NOT AGREE THAT YOUR BEING A UNION
 OFFICIAL EXCUSES YOU FOR YOUR PERSONAL CONDUCT."
 
    MR. ENGLE SUBMITTED HIS REPORT TO COLONEL CRUM ON OCTOBER 18, 1977,
 AND ON OCTOBER 19, 1977, COLONEL CRUM MET WITH MR. BARNES.  I FULLY
 CREDIT COLONEL CRUM'S TESTIMONY THAT HE TOLD MR. BARNES AT THAT TIME
 THAT HE (COLONEL CRUM) WAS ACCUSING HIM (MR. BARNES) OF MISCONDUCT WHICH
 MS. KILLEN HAD DESCRIBED IN HER LETTER, A COPY OF WHICH WAS GIVEN TO MR.
 BARNES ON OCTOBER 19, 1977;  THAT MR. ENGLE HAD INVESTIGATED THE MATTER
 AND HAD FOUND THOSE OCCURRENCES HAD OCCURED;  AND THAT MR. ENGLE HAD
 RECOMMENDED THAT MR. BARNES BE GIVEN AN ORAL REPRIMAND.  COLONEL CRUM
 FURTHER ADVISED MR. BARNES ON OCTOBER 19, 1977, THAT IF HE HAD ANYTHING
 TO SAY IN HIS DEFENSE HE WOULD BE GLAD TO LISTEN;  THAT HE COULD SUBMIT
 IT IN WRITING OR THAT HE COULD PRESENT IT ORALLY;  THAT HE WAS
 AUTHORIZED TO HAVE ANYONE OF HIS CHOOSING TO REPRESENT HIM;  AND THAT HE
 WOULD HAVE TWO DAYS TO RESPOND.  BECAUSE OF SCHEDULE CONFLICTS, THE NEXT
 MEETING ON THIS MATTER WAS NOT HELD UNTIL OCTOBER 26, 1977.  ON OCTOBER
 26, 1977, MR. BARNES MET WITH COLONEL CRUM AND BROUGHT WITH HIM THREE
 REPRESENTATIVES, MESSRS. CAMPBELL, FORBES AND BROWN.  MR. ENGLE WAS ALSO
 PRESENT.
 
    MR. ENGLE TESTIFIED THAT COLONEL CRUM WAS QUITE CALM, HIS VOICE WAS
 WELL MODULATED, HE WAS NOT ANGRY, HE USED NO STRONG LANGUAGE, AND HE
 MADE NO THREATENING REMARKS, GESTURES OR LOOKS.  NEITHER MR. CAMPBELL
 NOR MR. FORBES TESTIFIED TO THE CONTRARY (MR. BROWN WAS NOT CALLED AS A
 WITNESS) AND I CAN ONLY CONCLUDE THAT MR. BARNES' COMMENT THAT COLONEL
 CRUM'S EYES WERE "DRIPPING WITH HATE" AND/OR THAT HIS MANNER WAS
 "HOSTILE AND THREATENING" WERE BUT FURTHER FIGMENTS OF A FERTILE
 IMAGINATION.
 
    THE RECORD CONTAINS NO CREDIBLE EVIDENCE THAT RESPONDENT EITHER
 INVESTIGATED MS. KILLEN'S COMPLAINT ABOUT MR. BARNES' CONDUCT ON THE
 PANEL ON SEPTEMBER 1, 1977, OR THAT IT GAVE MR. BARNES AN ORAL REPRIMAND
 ON OCTOBER 26, 1977, FOR ANY REASON OTHER THAN HIS PERSONAL CONDUCT
 TOWARD ANOTHER EMPLOYEE IN THE COURSE OF THE PERFORMANCE OF OFFICIAL
 AGENCY BUSINESS.  I AM FULLY AWARE THAT MR. BARNES WAS 3RD VICE
 PRESIDENT OF LOCAL 909;  BUT IN SERVING AS UNION REPRESENTATIVE ON THE
 PANEL HE WAS NOT FULFILLING ANY DUTY AS 3RD VICE PRESIDENT, RATHER, HE
 WAS, SIMPLY, THE UNION REPRESENTATIVE, OR DESIGNEE, ON THE PANEL.  IN
 ANY EVENT, HOWEVER, A UNION OFFICIAL IS NOT IMMUNE FROM DISCIPLINE,
 DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, LAS VEGAS
 CONTROL TOWER, LAS VEGAS, NEVADA, A/SLMR NO. 796, 7 A/SLMR 150(1977),
 AND RESPONDENT'S REGULATIONS CLEARLY PROVIDE FOR DISCIPLINE FOR " . . .
 CREATING A DISTURBANCE AMONG FELLOW EMPLOYEES, RESULTING IN AN ADVERSE
 EFFECT ON MORALE, PRODUCTION, OR MAINTENANCE OF PROPER DISCIPLINE."
 (RESP. EXH. 6).
 
    THE REGIONAL ADMINISTRATOR BY HIS LETTER OF OCTOBER 5, 1978,
 DISMISSED THE ALLEGATION OF DUAL PROCESSING AND, ACCORDINGLY, THIS ISSUE
 IS NOT BEFORE ME.  NEVERTHELESS, IT MUST BE NOTED THAT ON SEPTEMBER 2,
 1977, IN HIS MEETING WITH MS. KNARR, MR. BARNES ASSERTED THAT HE WAS
 ACTING IN HIS CAPACITY AS A UNION OFFICER AND, OF COURSE, THE LETTERS OF
 SEPTEMBER 2 AND 15, 1977, WERE SIGNED BY MR. CAMPBELL AS PRESIDENT OF
 LOCAL 909.  RESPONDENT'S UNFAIR LABOR PRACTICE CHARGE (UNION EXH. 2)
 CONCERNED ASSERTED VIOLATIONS OF THE ORDER BY LOCAL 909 PRINCIPALLY AS
 THE RESULT OF MR. BARNES' STATEMENTS TO MS. KNARR ON SEPTEMBER 2, 1977,
 AND BY THE LETTERS DATED SEPTEMBER 2 AND 15, 1977, SIGNED BY MR.
 CAMPBELL AS PRESIDENT OF LOCAL 909, ALTHOUGH REFERENCE WAS MADE TO
 CERTAIN ASSERTED STATEMENTS MADE BY MR. BARNES TO MS. KILLEN DURING THE
 PANEL PROCEEDINGS ON SEPTEMBER 1, 1977.  /8/ I DRAW NO INFERENCE
 WHATEVER FROM RESPONDENT'S CHARGE AND/OR ANY SETTLEMENT THEREOF.  AS ANY
 ALLEGATION OF "DUAL PROCESSING" HAS BEEN DISMISSED BY THE REGIONAL
 ADMINISTRATOR, SUCH ISSUE IS NOT BEFORE ME AND HAS NOT BEEN CONSIDERED.
 THE PARTIES MUST RECOGNIZE THAT UNILATERAL ACTIONS TAKEN TO ENFORCE
 BELIEFS MAY, NEVERTHELESS, VIOLATE RIGHTS ASSURED BY THE ORDER.  I DO
 NOT CONDONE IN ANY MANNER RESPONDENT'S ACTION, SINCE RESCINDED, TO BAR
 MR. BARNES FROM SERVING ON RATING AND RANKING PANELS;  BUT, SOLELY
 BECAUSE SAID ALLEGATION WAS NOT INCLUDED IN THE COMPLAINT, THIS ISSUE
 MAY NOT BE CONSIDERED.
 
    THE RECORD SIMPLY DOES NOT SUPPORT THE ALLEGATION THAT RESPONDENT
 INVESTIGATED AND, ON THE BASIS OF ITS INVESTIGATION, ISSUED AN ORAL
 REPRIMAND TO MR. BARNES BECAUSE HE WAS A UNION OFFICER, BECAUSE HE WAS A
 UNION MEMBER, BECAUSE HE ENGAGED IN ANY RIGHT ASSURED BY THE ORDER, OR
 THAT RESPONDENT BY SUCH ORAL REPRIMAND ENCOURAGED OR DISCOURAGED
 MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN REGARD TO
 HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT.
 
    TO THE CONTRARY, AS NOTED ABOVE, THE RECORD SHOWS ONLY THAT THE
 REASON FOR THE ORAL REPRIMAND WAS MR. BARNES' PERSONAL CONDUCT TOWARD
 ANOTHER EMPLOYEE IN THE COURSE OF THE PERFORMANCE OF OFFICIAL AGENCY
 BUSINESS ON SEPTEMBER 1, 1977.  ALTHOUGH MS. KILLEN HAD MADE AN ORAL
 STATEMENT TO COLONEL CRUM ON SEPTEMBER 2, 1977, COLONEL CRUM ADVISED MS.
 KILLEN TO THINK THE MATTER OVER CAREFULLY BEFORE MAKING A COMPLAINT.
 WHEN MS. KILLEN, ON SEPTEMBER 23, 1977, MADE A COMPLAINT, COLONEL CRUM
 HAD HER ALLEGATIONS INVESTIGATED.  MR. ENGLE CONDUCTED AS THOROUGH AN
 INVESTIGATION AS POSSIBLE BY INTERVIEWING EACH PERSON PRESENT.  MR.
 BARNES STATED THAT HE DECLINED TO COMMENT.  BOTH MS. FLEMING AND MS.
 HOLLIMAN FULLY SUPPORTED MS. KILLEN'S ASSERTIONS CONCERNING MR. BARNES'
 CONDUCT ON SEPTEMBER 1, 1977, AND MR. BARNES' ATTITUDE AND PROCLIVITY
 FOR DEMEANING COMMENTS, AS REFLECTED BY HIS TESTIMONY, NOT ONLY DID
 NOTHING TO REFUTE THE ALLEGATIONS THAT HIS PERSONAL CONDUCT ON SEPTEMBER
 1, 1977, HAD GONE FAR BEYOND THE ACCEPTABLE REALM OF VIGOROUS
 DISCUSSION, BUT, INDEED, SHOW THAT THE ASSERTIONS MADE WERE FULLY
 CONSISTENT WITH MR. BARNES' CONDUCT IN GENERAL.
 
    ALTHOUGH THE RECORD SHOWS NO SIMILAR DISCIPLINARY ACTION BY
 RESPONDENT AGAINST ANY OTHER EMPLOYEE, NEITHER DOES THE RECORD SHOW THAT
 ANY OTHER EMPLOYEE HAD EVER ENGAGED IN THE PERSONAL ABUSE OF A PANEL
 MEMBER.  IT IS ALSO RECOGNIZED THAT MR. BARNES WAS AN OFFICER OF
 COMPLAINANT, BUT TO THE EXTENT THAT HIS STATUS AS A UNION OFFICER MAY
 GIVE RISE TO A SUSPICION, OR PRESUMPTION, THAT DISCIPLINARY ACTION MAY
 HAVE BEEN TAKEN AGAINST HIM BECAUSE OF HIS UNION ACTIVITY, THE CREDIBLE
 EVIDENCE AND TESTIMONY OVERWHELMINGLY DEMONSTRATES THAT THE ORAL
 REPRIMAND OF MR. BARNES WAS GIVEN SOLELY BECAUSE OF HIS PERSONAL CONDUCT
 ON SEPTEMBER 1, 1977, TOWARD A FELLOW MEMBER OF A RATING AND RANKING
 PANEL.  HAVING FOUND THAT THE ALLEGATIONS THAT THE ORAL REPRIMAND OF MR.
 BARNES VIOLATED SECTIONS 19(A)(1) AND (2) OF THE ORDER HAVE NOT BEEN
 PROVED BY A PREPONDERANCE OF THE EVIDENCE, I SHALL DISMISS THIS PORTION
 OF THE COMPLAINT.
 
    B.  THE ALLEGED THREATS ON OCTOBER 12, 19, 21 AND 26, 1977
 
    THE RECORD IS AS BARREN OF EVIDENCE TO SUPPORT THE ALLEGATION OF
 ISSUE NO. 2 AS THE COMPLAINT WAS DEFICIENT IN STATING A "CLEAR AND
 CONCISE STATEMENT OF THE FACTS" CONSTITUTING A THREAT ON ANY OCCASION.
 AS TO OCTOBER 12, 1977, THE RECORD SHOWS THAT MR. BARNES WENT TO COLONEL
 CRUM'S OFFICE TO GET CONFIRMATION THAT COLONEL CRUM HAD "TASKED" MR.
 ENGLE TO MAKE AN INVESTIGATION.  AS PREVIOUSLY NOTED, MR. BARNES
 TESTIFIED THAT HE INFORMED COLONEL CRUM OF RESPONDENT'S OCTOBER 7, 1977,
 UNFAIR LABOR PRACTICE CHARGE;  AND AS PREVIOUSLY STATED, I FULLY CREDIT
 COLONEL CRUM'S TESTIMONY THAT MR. BARNES STATED THAT HE, COLONEL CRUM,
 HAD NO AUTHORITY IN THE CASE, THAT THIS WAS HARASSMENT, THAT HE (COLONEL
 CRUM) COULD NOT PURSUE THE MATTER BECAUSE HE (BARNES) WAS A UNION
 OFFICER, AT WHICH POINT COLONEL CRUM RESPONDED, "MR. BARNES I DO NOT
 AGREE WITH YOU.  I DO NOT AGREE THAT YOUR BEING A UNION OFFICIAL EXCUSES
 YOU FOR YOUR PERSONAL CONDUCT." HOWEVER, EVEN ACCEPTING MR. BARNES'
 VERSION THAT COLONEL CRUM SAID, "YOU CANNOT HIDE BEHIND UNION ACTIVITIES
 FOR YOUR PERSONAL CONDUCT", I FIND NO THREAT IN VIOLATION OF SECTION
 19(A)(1) OF THE ORDER FOR MR. BARNES HAVING EXERCISED RIGHTS GUARANTEED
 BY THE ORDER.
 
    AS TO OCTOBER 19, 1977, THE RECORD SHOWS THAT COLONEL CRUM MET WITH
 MR. BARNES AT WHICH TIME COLONEL CRUM INFORMED MR. BARNES THAT HE WAS
 ACCUSING HIM OF MISCONDUCT WHICH MS. KILLEN HAD DESCRIBED IN HER LETTER
 OF SEPTEMBER 23, 1977;  THAT COLONEL CRUM HAD A COPY OF THE SEPTEMBER
 23, 1977, LETTER MADE FOR MR. BARNES, THAT COLONEL CRUM INFORMED MR.
 BARNES THAT MR. ENGLE HAD INVESTIGATED THE ALLEGATIONS, HAD FOUND THAT
 THOSE OCCURRENCES HAD OCCURED, AND HAD RECOMMENDED THAT MR. BARNES BE
 GIVEN AN ORAL REPRIMAND.  MR. BARNES LEFT THE MEETING WITH COLONEL CRUM
 BRIEFLY AND RETURNED WITH MESSRS. CAMPBELL AND FORBES.  DURING THIS
 MEETING, COLONEL CRUM ADVISED MR. BARNES THAT IF HE HAD ANYTHING TO SAY
 IN HIS DEFENSE HE WOULD BE GLAD TO LISTEN;  THAT HE COULD SUBMIT IT IN
 WRITING OR THAT HE COULD PRESENT IT ORALLY;  THAT HE COULD HAVE ANYONE
 OF HIS CHOOSING TO REPRESENT HIM;  AND THAT HE WOULD HAVE TWO DAYS TO
 RESPOND.  AGAIN, I FIND NO THREAT IN VIOLATION OF SECTION 19(A)(1) OF
 THE ORDER FOR MR. BARNES HAVING EXERCISED RIGHTS GUARANTEED BY THE
 ORDER.
 
    THERE WAS A MEETING ON OCTOBER 21, 1977, AT WHICH MR. BARNES, MR.
 CAMPBELL, MR. RAGER AND POSSIBLY MR. FORBES WERE PRESENT FOR COMPLAINANT
 AND MR. WOLF, MR.  KINGSLEY AND MR. MCCLEARLY WERE PRESENT FOR
 RESPONDENT.  PRESUMABLY THIS MEETING CONCERNED RESPONDENT'S UNFAIR LABOR
 PRACTICE CHARGE, BUT, IN ANY EVENT, THE RECORD CONTAINS NOTHING THAT
 COULD POSSIBLY CONSTITUTE A THREAT IN VIOLATION OF SECTION 19(A)(1) OF
 THE ORDER FOR MR. BARNES HAVING EXERCISED RIGHTS GUARANTEED BY THE
 ORDER.
 
    APPARENTLY, COMPLAINANT ASSERTS THAT THE FACT THAT RESPONDENT
 PROCEEDED WITH AN INVESTIGATION OF HIS PERSONAL CONDUCT CONSTITUTED A
 "THREAT".  FOR REASONS FULLY SET FORTH HEREINABOVE WITH RESPECT TO THE
 ORAL REPRIMAND, THE RECORD DOES NOT SUPPORT THE ALLEGATION THAT THE
 INVESTIGATION, AND SUBSEQUENT ORAL REPRIMAND, WAS MOTIVATED BY MR.
 BARNES' ACTIVITY AS A UNION OFFICER OR BECAUSE HE EXERCISED RIGHTS
 GUARANTEED BY THE ORDER.  TO THE CONTRARY, THE INVESTIGATION, AND
 SUBSEQUENT ORAL REPRIMAND, STEMMED FROM A COMPLAINT BY AN EMPLOYEE
 ASSERTING THAT MR.  BARNES HAD, AS A FELLOW MEMBER OF A RATING AND
 RANKING PANEL AND IN THE COURSE OF PERFORMANCE OF OFFICIAL AGENCY
 BUSINESS, ENGAGED IN IMPROPER CONDUCT TOWARD HER.  CONFRONTED WITH A
 COMPLAINT OF MISCONDUCT, RESPONDENT, ABSENT PROOF OF IMPROPER MOTIVATION
 WHICH WAS NOT SHOWN IN THIS CASE, HAD AN OBLIGATION TO INVESTIGATE THE
 COMPLAINT.  MR. BARNES, ALTHOUGH THE UNION'S DESIGNEE ON THE PANEL, WAS
 NOT ACTING IN HIS CAPACITY AS 3RD VICE PRESIDENT OF LOCAL 909 IN SERVING
 ON THE PANEL, BUT, EVEN IF HE HAD BEEN ACTING AS A UNION OFFICER, HE WAS
 NOT IMMUNE FROM AGENCY DISCIPLINE, DEPARTMENT OF TRANSPORTATION, FEDERAL
 AVIATION ADMINISTRATION, LAS VEGAS CONTROL TOWER, LAS VEGAS, NEVADA
 A/SLMR NO. 796, 7 A/SLMR 150(1977), AND SECTION 12(B) OF THE ORDER
 SPECIFICALLY PROVIDES, IN PART, THAT,
 
    "(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE
 
    LAWS AND REGULATIONS
 
   *          *          *          *
 
 
    "(2) . . . TO SUSPEND, DEMOTE, DISCHARGE OR TAKE OTHER DISCIPLINARY
 ACTION AGAINST
 
    EMPLOYEES;"
 
    THAT COMPLAINANT, ALBEIT IT PART THROUGH THE ACTION OF MR. BARNES,
 ENGAGED IN FURTHER AND ADDITIONAL CONDUCT ASSERTED TO HAVE CONSTITUTED
 AN UNFAIR LABOR PRACTICE DOES NOT, STANDING ALONE, RENDER RESPONDENT'S
 DISCIPLINARY ACTION AGAINST MR. BARNES IMPROPER.  INDEED, THE ALLEGATION
 OF "DUAL PROCESSING" WAS DISMISSED BY THE REGIONAL ADMINISTRATOR AND IS
 NOT BEFORE ME.  THERE IS NO CREDIBLE EVIDENCE OR TESTIMONY OF ANY
 IMPROPER MOTIVATION BY RESPONDENT.  THE RECORD SHOWS THAT THE COMPLAINT
 BY MS. KILLEN CONCERNED MR. BARNES' PERSONAL CONDUCT TOWARD HER AS A
 FELLOW MEMBER OF THE PANEL;  THAT RESPONDENT RESPONSIBLY INVESTIGATED
 THE ALLEGATIONS ASSERTED;  THAT ITS INVESTIGATION SHOWED THAT THE
 ALLEGATIONS WERE TRUE;  AND MR. BARNES WAS INFORMED OF THE ALLEGATIONS
 AND THE RESULTS OF THE INVESTIGATION AND WAS GIVEN FULL OPPORTUNITY TO
 RESPOND.  THERE IS NO CREDIBLE EVIDENCE THAT RESPONDENT ISSUED ITS ORAL
 REPRIMAND OF MR. BARNES BECAUSE OF HIS EXERCISE OF ANY RIGHT ASSURED BY
 THE ORDER OR TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
 ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
 OR OTHER CONDITIONS OF EMPLOYMENT.  TO THE CONTRARY, THE RECORD SHOWS
 THAT THE SOLE REASONS FOR THE ACTION TAKEN WAS MR. BARNES' PERSONAL
 CONDUCT TOWARD A FELLOW MEMBER OF A RATING AND RANKING PANEL IN THE
 COURSE OF PERFORMANCE OF AN OFFICIAL AGENCY DUTY.
 
    FINALLY, AS OF OCTOBER 26, 1977, THE THREAT ALLEGED CONCERNED THE
 PLACE MR. BARNES WAS TO SIT.  ALTHOUGH I FOUND COLONEL CRUM'S TESTIMONY
 CREDIBLE ARE FAR MORE PERSUASIVE AS TO WHAT OCCURRED (SEE TR. 212), EVEN
 IF MR. BARNES' TESTIMONY THAT,
 
    "A.  WE ALL CAME IN AND STARTED FOR THE TABLE AND HE SAYS, NO, I WANT
 YOU TO SIT OVER
 
    HERE.  AND I SAID I'M HERE WITH THE PEOPLE, REPRESENTATIVES WHERE I
 CAN CONSULT WITH THEM, AND
 
    I WANT TO TAKE NOTES HERE AT THE TABLE.  HE SAYS, 'NO, YOU SIT OVER
 HERE.'" (TR. 103) IS ACCEPTED, THERE IS NO BASIS TO SUPPORT THE
 ALLEGATION THAT RESPONDENT THEREBY THREATENED MR. BARNES FOR EXERCISING
 ANY RIGHT GUARANTEED BY THE ORDER.
 
    AS I HAVE FOUND THE ALLEGATION AS TO ISSUE NO. 2 TO BE WITHOUT
 SUPPORT IN THE RECORD, I SHALL DISMISS THIS PORTION OF THE COMPLAINT.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
 PROHIBITED BY SECTIONS 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS
 AMENDED, AND HAVING FOUND THAT NO ALLEGATION CONCERNING RESPONDENT'S
 LETTER OF SEPTEMBER 1, 1977, IN VIOLATION OF SECTIONS 19(A)(1) AND (3)
 WAS INCLUDED IN THE COMPLAINT, I RECOMMEND THAT THE COMPLAINT HEREIN BE
 DISMISSED IN ITS ENTIRETY.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 6, 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.