Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Midwest Region, Chicago, Illinois (Respondent) and National Treasury Employees Union and NTEU Chapter 94 (Complainant) 

 



[ v02 p573 ]
02:0573(74)CA
The decision of the Authority follows:


 2 FLRA No. 74
 
 DEPARTMENT OF THE TREASURY,
 BUREAU OF ALCOHOL, TOBACCO AND
 FIREARMS, MIDWEST REGION,
 CHICAGO, ILLINOIS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 94
 Complainant
 
                                            Assistant Secretary
                                            Case No. 50-17024(CA)
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO ADMINISTRATIVE LAW
 JUDGE GARVIN LEE OLIVER'S MARCH 22, 1979, ORDER FORWARDING THE RECORD IN
 THIS MATTER TO THE FEDERAL LABOR RELATIONS AUTHORITY FOR DECISION.
 
    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 THE 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).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS, THE
 AUTHORITY FINDS:
 
    THE COMPLAINT HEREIN, ALLEGES THAT RESPONDENT, DEPARTMENT OF
 TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION,
 CHICAGO, ILLINOIS, VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN
 IT DECLARED NON-NEGOTIABLE SEVERAL PROPOSALS MADE BY COMPLAINANT,
 NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 94, DURING
 NEGOTIATIONS OVER THE IMPACT AND IMPLEMENTING PROCEDURES OF THE
 RESPONDENT'S DECISION TO REALIGN WORK AND CENTRALIZE CLERICAL FUNCTIONS
 IN ITS FIREARMS/EXPLOSIVES LICENSING SECTION (F/ELS).  THE COMPLAINANT
 ASSERTS THAT THIS DECLARATION OF NON-NEGOTIABILITY OF ITS PROPOSALS BY
 THE RESPONDENT VIOLATED THE DUTY TO NEGOTIATE UNDER THE ORDER BECAUSE
 THE PROPOSALS WERE CLEARLY NEGOTIABLE AS DETERMINED PREVIOUSLY BY THE
 FEDERAL LABOR RELATIONS COUNCIL (FLRC).  NATIONAL TREASURY EMPLOYEES
 UNION AND DEPARTMENT OF TREASURY, U.S. CUSTOMS SERVICE REGION VII, 5
 FLRC 249, FLRC NO. 76A-28(1977), IMMIGRATION AND NATURALIZATION SERVICE
 AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 3 FLRC 380, FLRC NO.
 74A-13(1975).  THE RESPONDENT ARGUES THAT THE CITED CASES ARE NOT
 DETERMINATIVE HEREIN BECAUSE THEY INVOLVE DIFFERENT CIRCUMSTANCES AND
 DIFFERENT PARTIES, AND FURTHER BECAUSE THEY CONTAIN PROPOSALS WHICH
 DIFFER FROM THOSE HEREIN.
 
    THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
 
    THE RESPONDENT CONDUCTED A PILOT PROGRAM CONCERNING THE REALIGNMENT
 OF WORK AND THE CENTRALIZATION OF CLERICAL FUNCTIONS IN THE F/ELS FOR
 180 DAYS.  DURING THIS TIME, IT HAD CONSULTED WITH THE COMPLAINANT.  ON
 SEPTEMBER 27, 1977, THE RESPONDENT NOTIFIED THE COMPLAINANT THAT IT
 PROPOSED TO INSTITUTE PERMANENT CHANGES RELATED TO THE PILOT PROGRAM,
 EFFECTIVE OCTOBER 11, 1977.  THE PARTIES MET ON OCTOBER 3, 1977,
 PURSUANT TO A REQUEST BY THE COMPLAINANT TO NEGOTIATE REGARDING THE
 IMPACT AND IMPLEMENTING PROCEDURES OF THE INTENDED CHANGES.  THE
 RESPONDENT EXTENDED THE PILOT PROGRAM TWICE, ULTIMATATELY THROUGH
 OCTOBER 31, 1977, TO GIVE THE COMPLAINANT AN OPPORTUNITY TO SOLICIT THE
 VIEWS OF THE BARGAINING UNIT ON THE INTENDED CHANGES AND TO SUBMIT
 PROPOSALS.  ON OCTOBER 19, 1977, THE COMPLAINANT SUBMITTED ITS PROPOSALS
 TO THE RESPONDENT FOR CONSIDERATION.  THE RESPONDENT DECLARED
 NON-NEGOTIABLE ALL OF THE COMPLAINANT'S PROPOSALS ON OCTOBER 25, 1977,
 AND THE INTENDED ORGANIZATIONAL CHANGES WERE IMPLEMENTED ON NOVEMBER 1,
 1977, ACCORDING TO SCHEDULE.
 
    THE PROPOSALS MADE BY THE COMPLAINANT WHICH ARE IN DISPUTE HEREIN ARE
 SET OUT BELOW, ALONG WITH THE PROPOSALS FOUND TO BE NEGOTIABLE BY THE
 COUNCIL AND ALLEGED TO BE COMPARABLE BY THE COMPLAINANT:  /1/
 
    SECTION 1, PROPOSED BY THE COMPLAINANT
 
    THE PARTIES RECOGNIZE THAT THE BUREAU ATTEMPTED TO EQUALIZE THE
 DISTRIBUTION OF WORK
 
    BETWEEN THE VARIOUS INDIVIDUAL EMPLOYEES IN THE FIREARMS SECTION.
 HOWEVER, THE PARTIES
 
    REALIZE THAT THE REALIGNMENT OF JOB FUNCTIONS COULD RESULT IN AN
 IMBALANCE IN THE WORK LOAD
 
    AND, THEREFORE, COULD CAUSE ONE OR MORE EMPLOYEE(S) TO BE
 OVERBURDENED IN RELATION TO HIS/HER
 
    (THEIR) FELLOW WORKERS.  CONSEQUENTLY, THE EMPLOYER AGREES TO INSURE,
 TO THE EXTENT
 
    PRACTICABLE, AN EQUITABLE DISTRIBUTION OF THE WORK LOAD AMONG
 SIMILARLY SITUATED
 
    EMPLOYEES.  TO THIS END, THE EMPLOYER WILL ADHERE TO THE FOLLOWING
 PROCEDURES:
 
    (1) THE EMPLOYER WILL USE WHATEVER MEANS NECESSARY TO MONITOR THE
 WORK LOAD OF THE VARIOUS
 
    INDIVIDUAL UNIT EMPLOYEES;
 
    (2) ON OR ABOUT THE SIXTH MONTH ANNIVERSARY DATE OF THE REALIGNMENT
 OF WORK, THE EMPLOYER
 
    WILL CAUSE TO BE MADE A REVIEW OF THE COMPARATIVE WORK LOADS OF EACH
 EMPLOYEE;
 
    (3) SHOULD THIS REVIEW REVEAL AN IMBALANCE IN THE DISTRIBUTION OF
 WORK, THE EMPLOYER WILL,
 
    TO THE EXTENT PRACTICABLE, TAKE WHATEVER STEPS ARE NECESSARY TO
 INSURE A FAIR AND EQUITABLE
 
    WORK LOAD DISTRIBUTION.
 
    SIMILAR LANGUAGE FOUND NEGOTIABLE IN IMMIGRATION AND NATURALIZATION
 SERVICE:
 
    ARTICLE 18, SECTION A(1):
 
    IMMIGRATION OFFICERS SHALL ROTATE TO VEHICULAR INSPECTION ON A FAIR
 AND EQUITABLE BASIS.
 
    SECTION 2(D), PROPOSED BY THE COMPLAINANT
 
    D.  AN EMPLOYEE WILL, UPON REQUEST, BE ALLOWED TO SWAP WORK
 ASSIGNMENTS IF A QUALIFIED
 
    REPLACEMENT, APPROVED BY THE SUPERVISOR, IS AVAILABLE AND WILLING TO
 WORK, AND IF THE WORK
 
    FLOW WILL NOT BE SIGNIFICANTLY IMPAIRED.
 
    SIMILAR PROPOSALS FOUND NEGOTIABLE IN CUSTOMS SERVICE:
 
    ARTICLE 29, SECTION 3
 
    AN EMPLOYEE WILL, UPON REQUEST, BE ALLOWED TO SWAP PLACEMENT
 ASSIGNMENTS, IF A QUALIFIED
 
    REPLACEMENT, APPROVED BY THE SUPERVISOR, IS AVAILABLE AND WILLING TO
 WORK AND IF THE WORK FLOW
 
    IS NOT IMPAIRED.
 
    ARTICLE 22, SECTION 4
 
    AN EMPLOYEE, UPON REQUEST, WILL BE ALLOWED TO SWAP SHIFT ASSIGNMENTS
 AND/OR DAYS OFF IF A
 
    QUALIFIED REPLACEMENT, APPROVED BY THE SUPERVISOR, IS AVAILABLE AND
 WILLING TO WORK AND IF THE
 
    WORK FLOW IS NOT IMPAIRED.
 
    SECTION 4, PROPOSED BY THE COMPLAINANT
 
    TO PROVIDE FOR EMPLOYEE DEVELOPMENT, THE EMPLOYER AGREES TO ROTATE
 EMPLOYEES THROUGH THE
 
    VARIOUS PHASES OF WORK THAT ARE AVAILABLE WITHIN THEIR JOB TITLE.
 
    SIMILAR PROPOSAL FOUND NEGOTIABLE IN IMMIGRATION AND NATURALIZATION
 SERVICE:
 
    ARTICLE 25, SECTION A:
 
    TO PROVIDE FOR EMPLOYEE DEVELOPMENT THE SERVICE AGREES TO ROTATE
 EMPLOYEES THROUGH THE
 
    VARIOUS PHASES OF WORK WITHIN THEIR JOB TITLE THAT IS AVAILABLE.
 
                         FINDINGS AND CONCLUSIONS
 
    IT WAS THE CLEAR INTENT OF THE EXECUTIVE ORDER THAT ONCE A
 DETERMINATION OF NEGOTIABILITY IS MADE THROUGH THE PROCESSES OF THE
 ORDER, /2/ A SUBSEQUENT DECLARATION OF NON-NEGOTIABILITY OF THE MATTER
 WOULD BE AN UNFAIR LABOR PRACTICE.  /3/ UPON COMPARISON OF THE LANGUAGE
 AND CIRCUMSTANCES OF THE COMPLAINANAT'S PROPOSALS NUMBER 2(D) AND 4 WITH
 CLAUSES PREVIOUSLY DECLARED NEGOTIABLE BY THE FLRC AND SET OUT ABOVE
 AFTER EACH OF THE COMPLAINANT'S PROPOSALS, THE AUTHORITY FINDS NO
 MEANINGFUL DIFFERENCES AND THUS CONCLUDES THAT THE RESPONDENT'S
 DECLARATION OF NON-NEGOTIABILITY OF PROPOSALS NUMBER 2(D) AND 4 WAS IN
 VIOLATION OF THE ORDER.  THE COMPLAINANT'S PROPOSAL NUMBER 2(D) IS FOR
 ALL PRACTICAL PURPOSES IDENTICAL WITH THE PROPOSALS DEEMED NEGOTIABLE IN
 CUSTOM SERVICE, AND THERE IS NOTHING PERSUASIVE IN THE STIPULATION OF
 FACTS OR BRIEFS TO DISTINGUISH THE TWO.  SIMILARLY, THE COMPLAINANT'S
 PROPOSAL NUMBER 4 SO CLOSELY TRACKS THE PROPOSAL FOUND NEGOTIABLE IN
 IMMIGRATION AND NATURALIZATION SERVICE AS TO MAKE ANY DISTINCTION
 BETWEEN THEM ARBITRARY OR IN ERROR ON ITS FACE.  IT IS CONCLUDED
 THEREFORE THAT THE MATTERS INVOLVED IN THESE PROPOSALS HAVE ALREADY BEEN
 DECLARED NEGOTIABLE THROUGH THE PROCESSES OF THE ORDER, AND THE
 RESPONDENT'S DECLARATION OF NON-NEGOTIABILITY AS TO THEM WAS IN
 VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
 
    SIGNIFICANT DIFFERENCES ARE TO BE NOTED, HOWEVER, IN LANGUAGE AND
 INTENT BETWEEN THE COMPLAINANT'S PROPOSAL NUMBER 1 AND THE CITED CLAUSE
 IN IMMIGRATION AND NATURALIZATION SERVICE, PREVIOUSLY DETERMINED TO BE
 NEGOTIABLE AND ALLEGED TO BE SIMILAR BY THE COMPLAINANT.  /4/ THUS, THE
 LANGUAGE OF THE CITED CLAUSE REFERS ONLY TO THE ROTATION OF IMMIGRATION
 OFFICERS WHILE THE LANGUAGE IN THE PROPOSAL REFERS TO THE DISTRIBUTION
 OF WORK.  THE AUTHORITY CONCLUDES THEREFORE, THAT IT HAS NOT BEEN
 ESTABLISHED THAT THE RESPONDENT'S DECLARATION OF NON-NEGOTIABILITY WITH
 RESPECT TO THAT PROPOSAL WAS VIOLATIVE OF THE ORDER.  ACCORDINGLY, THE
 AUTHORITY SHALL DISMISS THAT PORTION OF THE COMPLAINT.
 
                                 ORDER /5/
 
    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 TREASURY, BUREAU OF ALCOHOL, TOBACCO AND
 FIREARMS, MIDWEST REGION, CHICAGO, ILLINOIS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DECLARING NON-NEGOTIABLE PROPOSALS MADE IN THE COURSE OF
 NEGOTIATIONS BY THE NATIONAL
 
    TREASURY EMPLOYEES UNION AND NTEU CHAPTER 94, WHICH INVOLVE MATTERS
 PREVIOUSLY DETERMINED TO
 
    BE 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 RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON REQUEST OF THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU
 CHAPTER 94, MEET AND
 
    CONFER TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS REGARDING
 THEIR PROPOSALS NUMBER 2(D)
 
    AND 4 PERTAINING TO THE IMPACT AND IMPLEMENTING PROCEDURES OF THE
 ORGANIZATIONAL CHANGES MADE
 
    IN THE FIREARMS/EXPLOSIVE LICENSING SECTION OF THE DEPARTMENT OF THE
 TREASURY, BUREAU OF
 
    ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION, CHICAGO, ILLINOIS.
 
    (B) POST AT THE FACILITIES OF THE DEPARTMENT OF THE TREASURY, BUREAU
 OF ALCOHOL, TOBACCO
 
    AND FIREARMS, MIDWEST REGION, CHICAGO, ILLINOIS, 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 REGIONAL REGULATORY
 ADMINISTRATOR OF THE DEPARTMENT OF
 
    TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION,
 CHICAGO, ILLINOIS, AND
 
    SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS
 
    PLACES, INCLUDING BULLETIN BOARDS AND ALL OTHER PLACES WHERE NOTICES
 TO EMPLOYEES ARE
 
    CUSTOMARILY POSTED.  THE ADMINISTRATOR 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 FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN ASSISTANT
 SECRETARY CASE NO. 50-17024(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 EMPLOYEES OF THE DEPARTMENT
 
              OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND
 
            FIREARMS, MIDWEST REGION, CHICAGO, ILLINOIS, THAT:
 
    WE WILL NOT DECLARE NON-NEGOTIABLE PROPOSALS MADE IN THE COURSE OF
 NEGOTIATIONS BY THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
 94, WHICH INVOLVE MATTERS PREVIOUSLY DETERMINED TO BE 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 NATIONAL TREASURY EMPLOYEES UNION AND
 NTEU CHAPTER 94, MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS REGARDING THEIR PROPOSALS NUMBER 2(D) AND 4 PERTAINING TO
 THE IMPACT AND IMPLEMENTING PROCEDURES OF THE ORGANIZATIONAL CHANGES
 MADE IN THE FIREARMS/EXPLOSIVE LICENSING SECTION OF THE DEPARTMENT OF
 THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION,
 CHICAGO, ILLINOIS.
 
                           (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 AND TELEPHONE NUMBER ARE:  ROOM 1638, DIRKSEN FEDERAL BUILDING,
 219 SOUTH DEARBORN STREET, CHICAGO, ILLINOIS, 60604, (312) 353-6746.
 
    /1/ THE REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES
 ADMINISTRATION, DISMISSED THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT IN
 ITS ENTIRETY ON APRIL 21, 1978.  HOWEVER, PURSUANT TO A REQUEST FOR
 REVIEW BY THE COMPLAINANT, THE ASSISTANT SECRETARY REINSTATED THAT
 PORTION OF THE UNFAIR LABOR PRACTICE COMPLAINT WITH RESPECT TO THE
 COMPLAINANT'S PROPOSALS 1, 2(D) AND 4, AS, IN HIS VIEW, THEY CONTAINED
 LANGUAGE SIMILAR TO THAT FOUND IN PROPOSALS FOUND NEGOTIABLE BY THE
 FEDERAL LABOR RELATIONS COUNCIL IN CUSTOMS SERVICE AND IMMIGRATION AND
 NATURALIZATION SERVICE, CITED ABOVE, SUCH THAT A REASONABLE BASIS FOR
 THE COMPLAINANT'S ALLEGATION WAS ESTABLISHED WITH RESPECT TO THOSE
 PROPOSALS.
 
    /2/ THE STUDY COMMITTEE REPORT AND RECOMMENDATIONS WHICH LED TO THE
 ISSUANCE OF EXECUTIVE ORDER 11491, PROVIDES:
 
    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.  . .
 .
 
    LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, 1975, P.  1.
 
    /3/ VETERANS ADMINISTRATION, 1 FLRA NO. 101(AUGUST 21, 1979).
 
    /4/ IN THIS REGARD, THE CLAUSE IN IMMIGRATION AND NATURALIZATION
 SERVICE CONTAINS THE LANGUAGE "FAIR AND EQUITABLE BASIS" WHICH IS
 SIMILAR TO LANGUAGE IN THE PROPOSAL IN PARAGRAPH (3) ("FAIR AND
 EQUITABLE WORK LOAD DISTRIBUTION.") HOWEVER, THE LANGUAGE CLEARLY IS
 USED IN A DIFFERENT CONTEXT.
 
    /5/ 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.