11:0334(68)CA - Bureau of Government Financial Operations HQ and NTEU -- 1983 FLRAdec CA
[ v11 p334 ]
The decision of the Authority follows:
11 FLRA No. 68 BUREAU OF GOVERNMENT FINANCIAL OPERATIONS HEADQUARTERS Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-1807 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision, and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations. /1A/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Bureau of Government Financial Operations Headquarters, Washington, D.C. shall: 1. Cease and desist from: (a) Instituting a reassignment of employees represented exclusively by the National Treasury Employees Union, without first notifying the exclusive representative and affording it an opportunity to bargain concerning the implementation of such reassignment and its impact on affected employees. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute. (a) Give prior notification to the National Treasury Employees Union of any intended reassignment of employees, and, upon request, bargain with such representative concerning the implementation of such reassignment and its impact on affected employees. (b) Post at its facility at the Liberty Loan Building, Washington, D.C., copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Director, or his designee, and shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that the Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, 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., February 10, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY 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 institute any reassignment with respect to employees represented by the National Treasury Employees Union, without first notifying such representative and affording it the opportunity to bargain concerning the implementation of such reassignment and its impact on affected employees. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL give prior notification to the National Treasury Employees , Union of any intended reassignment and, upon request, bargain with such representative concerning the implementation of such reassignment and its impact on affected employees. (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, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, Room 700, P.O. Box 33758, Washington, D.C. 20033-0758, and whose phone number is (202) 653-8507. -------------------- ALJ$ DECISION FOLLOWS -------------------- Erick J. Genser, Esq. For the General Counsel Lynn Sylvester, Esq. For the Charging Party Arthur S. Rosenzweig For the Respondent Before: ELI NASH, JR. Administrative Law Judge Decision Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on February 25, 1981 by the Regional Director for the Federal Labor Relations Authority, Washington, D.C. Region, a hearing was held in this matter on April 21, 1981 in Washington, D.C. The proceeding arose under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C 7101 et seq. (herein called the Statute). It is based upon a charge filed on December 29, 1980 by the National Treasury Employees Union (herein called the Union) against Bureau of Government Financial Operations Headquarters (herein called Respondent). The Complaint in this matter alleges that Respondent, on or about December 3, 1980, implemented a reassignment of employees without providing the Union adequate notice and opportunity to negotiate over the impact and implementation of those assignments in violation of section 7116(a)(1) and (5) of the Statute. Respondent filed an Answer on March 13, 1981 denying the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine and cross-examine witnesses and to argue orally. The Respondent and Charging Party thereafter filed timely briefs which have been duly considered. Upon the entire record in this case, from my observation of the witnesses and their demeanor, and from all the testimony and evidence adduced at the hearing, I make the following findings and conclusions. Findings of Fact 1. At all times material herein the Union has been the exclusive bargaining representative of the employees involved in this matter. 2. At all times material herein Respondent and the Union were parties to a collective bargaining agreement containing a section regarding reassignment of employees. Article XVI, Section 2 of that Agreement reads as follows: Section 2 A. When the EMPLOYER determines that an involuntary reassignment of an employee is necessary due to a staffing imbalance (See Section 2.B. of this Article) and that the involuntary reassignment involves a shift to another building for an employee, the EMPLOYER shall use the following procedures; 1. Of the excess positions to be shifted by such reassignment, the EMPLOYER shall identify the three (3) qualified employees with the least length of service with the EMPLOYER. 2. The EMPLOYER will consider reassigning such employee(s) by least length of service with the EMPLOYER. If the EMPLOYER decides not to reassign one (1) of the three (3) least senior employees, it may reassign any employee it determines is qualified for the position. 3. Upon written request, the EMPLOYER will provide the UNION with a written explanation of the reason(s) why it did not reassign one (1) of the three (3) least senior employees. B. It is clearly understood that the provisions of this section only pertain to a staffing imbalance in connection with a building change, and do not preclude or limit the EMPLOYER from making any reassignment due do its assessments of its needs and employee abilities and qualifications. Further, the parties agree that this Section does not cover situations where a Division, Staff or component thereof is being phased-out or a reduction-in-force is in effect. It is strictly limited to a staffing imbalance situation, where the EMPLOYER determines that excess employees in a Division, Staff or component thereof must be involuntarily reassigned to another Division, Staff or component thereof in another building where there is a shortage of that type of employee, and where the EMPLOYER determined that the sending Division, Staff or component thereof shall continue its operations indefinitely. 3. Sometime around September 8, 1980 the Division of Check Claims, one of Respondent's components was reorganized. Following that reorganization it became apparent to Respondent that a staffing imbalance was causing a significant work backlog in one area in the Liberty Loan Building. Respondent's managers, therefore, sought permission to reassign a number of employees between the claims adjudication branches and adjudication control branch to reduce the aforementioned backlog, but were prevented from carrying out the reassignments until new hiring ceiling for the affected organizational units, the adjudication claims branches and the adjudication control branch were alloted. Around the fourth week in November 1980, the managers were notified of the controlling ceilings and given authority to proceed with the reassignments. All employees involved in the proposed transfer were clerical. 4. The record shows that the adjudication claims branches contained claims examiners and claim clerks who process cases which are provisionally in order for collection. Claims adjudication branch employees investigate and decide whether a claim for the proceeds of government checks are proper and make the decision whether to settle or deny a claim or to conduct a further investigation. The adjudication control branch was composed of the files for the units and employees there put the cases together for the claims adjudication branches. 5. As previously noted, the employees transferred were all clerical. Acting as claims clerks in the adjudication branches the clerical employees aided the claims examiners in making sure that all information was in the case file, obtained further information needed to complete the cases, were required to have some familiarity with the nature of claims adjudication and some understanding of how cases were developed, processed and adjudicated. These positions also required some typing. The adjudication control branch employees were concerned primarily with batching cases. Their work involved filing, alphabetizing or numbering cases and putting rubber bands around cases. 6. Shop Steward Steven Osheroff, the official union contact point for labor-management matters in the claims adjudication and adjudication control branches testified that on November 25, 1980, he was called by the Acting Division Assistant Director, Mr. Robert Covington and informed that nine (9) employees were to be transferred. According to Osheroff, he asked Mr. Covington for an impact statement. Mr. Covington responded that there "wasn't any impact, they were just going to transfer the employees." Osheroff states that he suggested a change of procedures meant "he was implementing something, they had an impact on employees so therefore there was an impact and he should get me an impact statement." Mr. Covington told Osheroff that, "he would get back to me." 7. The following day, November 26, 1980 Osheroff received a memorandum from Covington stating: This memorandum is to inform you that effective December 1, 1980, nine of the employees currently filing Clerk (Typing) GS-303-02/03 positions in the three Claims Adjudication Branches are being reassigned to the Adjudication Control Branch. The reassignments are being made due to budgeting constraints in filling positions in a critical area of the Division's work processes. The reassignments will not affect the grades of the employees nor will their position descriptions be changed. Osheroff after reviewing the contractual provision relating to realignments called Covington and asked "why he wasn't complying with the contract." Covington again told Osheroff that he would get back to him. Thereupon, Osheroff wrote Covington a note asking to be provided a "written explanation of why you did not reassign the employees with the lease length of service . . . " After delivering the note to Covington, Osheroff received a telephone call from Covington, who told him that, "his understanding was he wasn't in violation of the contract." 8. On November 26, 1980, after conferring with the Union's president, Osheroff wrote Covington another letter in which he invoked the right to negotiate, offered a counter proposal that the processes for reassignment contained in Article XVI, Section 2 of the collective bargaining agreement be used and requested certain information used by Respondent in determining the individuals preselected. 9. On November 28, 1980, Covington responded, by memorandum which stated, in pertinent part: Your request that we use length of service as a basis for reassignment and the NTEU be furnished all information used by management to select the individuals involved, is hereby denied. Article XVI Section 2.B of the Collective Bargaining Agreement clearly states that the provisions under the section pertain to a building change, which in no way relates to the situation described in my memorandum of November 25, 1980. As for NTEU's rights to negotiate the change in working conditions, I am willing to discuss any of your concerns relative to implementation and impact, but the decision to reassign or the parties scheduled for reassignment will not be discussed. For the purpose of allowing discussion on implementation or impact, I am postponing the reassignments until December 3, 1980. As the record disclosed, November 28, 1980 was a Friday following the Thanksgiving holiday for that year. Osheroff, because he had taken annual leave on that day, as he always had done in the past, did not receive the memorandum until the next Monday morning, December 1, 1980. Subsequently, on that day, Osheroff contacted a Union Field Representative Lynn Sylvester and asked what could be done. According to Osheroff, he informed Sylvester that the request for information had already been denied. Sylvester told him that she would get back to him. However, she did not do so on that day. 10. The following day, December 2, 1980, Osheroff, in a conversation primarily related to another matter discussed the reassignments with Respondent's Labor Relations Specialist, Mr. Rosenzweig. Rosenzweig, according to Osheroff, suggested that he meet with Mr. Covington, but Osheroff stated that Covington had already denied the Union's request for information, so what could the Union hope to get from such a meeting. Rosenzweig reiterated that the Union should meet with Covington. 11. On December 3, 1980, Osheroff called Covington and was told by Covington that, "he didn't see there was much to meet around or much to discuss." Osheroff then called Field Representative Sylvester who suggested that Osheroff request that Covington put his position in writing Osheroff complied, writing Covington a December 3, 1980 memorandum requesting that they meet "to clarify your position and to discuss the impact and implementation of this transfer." Pursuant to this request, it appears that the parties eventually met on December 8, 1980. 12. According to Osheroff, the reassignment of the nine clerical employees affected not only clerical employees, but employees such as the claims examiners. He further testified that during this period he was "able to do very little investigation," concerning the impact of the reassignment. On rebuttal, Osheroff testified that the Union had been given fourteen days notice when other reassignments were effected. 13. Mr. Covington testified that during previous reassignments the Union had been given as little as "two days" notification before implementation. Covington further testified that his understanding was "the selection procedures were taken into account when the contract was negotiated." He states that because Respondent did not know what the Union had in mind the November 28, 1980 memorandum was "an offer" and "if there were some other concerns involving implementation and impact, what we were trying to do there was accommodate those concerns." 14. According to Covington a situation of exigency existed. In his view, the situation had become quite unsettling with rumors of the reassignment; because of the personnel ceilings involved the work was not being moved or processed as expected; they were not meeting the expected goals on the adjudication of executed claims; and, employees were learning new and obsolete procedures, which if they were to be transferred, they did not need to know. He, therefore, felt that since he had not heard from the Union between December 1 and 3, his obligation to negotiate concerning the reassigned employees had been concluded. Discussion and Conclusions The only question involved in this matter is whether or not the Union received reasonable notice to allow it to engage in meaningful bargaining concerning the reassignment of employees from the adjudication claims branches to the adjudication control branch on or about December 3, 1980. Respondent maintains that an overriding exigency dictated that the move be accomplished during early December 1980, that the counterproposal submitted by the Union was already covered by the collective bargaining agreement, and it therefore had no obligation to bargain on the one counterproposal submitted by the Union on November 26, 1980. The record disclosed that existing ceilings had prevented Respondent from reassigning employees for almost two months and that an imbalance in branches existing during that entire period. However, there is no record evidence to support a finding that an overriding exigency requiring immediate action existed. The imbalance referred to by Respondent had existed for well over two months and Respondent had indeed made its decision /2/ that the moves would have to be made shortly after the September 1980 reorganization. Furthermore, during the interim period, since Respondent was well aware that the reassignments were imminent, an opportunity to bargain existed. Respondent cannot now claim that when it received ceiling authorization it had to act with urgency. The General Counsel presented evidence on rebuttal that the Union had on occasion been given at least fourteen days prior to implementation of changes in working conditions to respond to proposed changes. Respondent, on the other hand, offered testimony that on occasion it had given as little as two days notice. Neither of these times is controlling in the instant matter since it appears from the record that those reassignments were made under different conditions involving totally different circumstances, such as inter-building moves. Clearly notices given in the past were variable, but the only issue here is whether the notice given for this reassignment allowed sufficient time for a meaningful bargaining relationship to develop. In this matter, Respondent notified the Union of proposed changes in working conditions which originally were scheduled to occur on December 1, 1980 on November 25, 1980. It is noteworthy that, November 25, 1980 was a Tuesday, before a Thursday, Thanksgiving holiday of that year. Steward Osheroff testified that he had traditionally taken annual leave on the Friday after Thanksgiving, as do many government employees. It is reasonable to assume that union representatives, employees and management personnel involved would also take such a long-weekend holiday and that notice given in this posture would not have afforded the Union three days, as Respondent suggests, but actually only one day, November 26. In my view, the Union, in reality, received only one days notice between November 25, 1980 and December 1, 1980 to investigate and formulate its counterproposals. I, therefore, find that the Union's hastily prepared counterproposal submitted on November 26, 1980, was formulated before there was a full opportunity to explore the impact of the reassignment and would not preclude it from submitting further proposals concerning implementation and impact, had the parties in fact engaged in negotiations over the matter. It is further noted that, on November 25, the Union asked for an impact statement and for certain information regarding the reassignments, neither of which was ever supplied. Furthermore, Osheroff states that he attempted to explain the full range of impact and implementation to Covington on November 25, but found no audience. Without any information or an opportunity to investigate coupled with a statement from Respondent's representative that "there wasn't any impact", it can hardly be suggested that the Union had an opportunity to formulate any meaningful bargaining proposals particularly since at that time the changes were to be made on December 1. On November 28, Respondent granted a two day extension until December 3 before implementing the reassignments. Respondent suggests that the Union should have acted before the expiration of that extension. The record shows that the Union did just that, for on December 3, it requested to meet with Mr. Covington "to discuss the impact and implementation", nonetheless no meeting was held until December 8, 1980, four days after the reassignments were effected. Moreover, the November 28 notice of extension was not received by the Union until December 1 and any argument that it did not respond in a reasonable length of time to the extension must be rejected. Federal sector cases concerning notification and the parties' obligation to negotiate have established that: "the right to engage in a dialogue with respect to matters for which there is an obligation to meet and confer becomes meaningful only when agency management has afforded the exclusive representative reasonable notification and an ample opportunity to explore fully the matters involved prior to taking any action." /3/ No such opportunity was offered to Osheroff. Telephone calls between the two principal characters in which one is asking for negotiations and the other stating that there is nothing to bargain about cannot be characterized as bargaining. Contrary to Respondent's argument, I find that the Union was not given nine days notice, but only, five working days, at best, with one of those working days being over a traditional four day holiday period. Having found that the Union was allowed only five working days, at best, to formulate proposals, the question becomes whether or not this was a reasonable amount of time to allow it to investigate and formulate proposals and engage in meaningful bargaining concerning the reassignments. Despite Respondent's argument to the contrary, it is my opinion, that five working days, where nine employees were to be reassigned was not reasonable notification to allow the Union in this instance to explore fully and to develop meaningful bargaining proposals. Respondent further contends that the Union had contractually waived its right to bargain concerning seniority as a part of the transfer and that this was the only counterproposal offered by the Union during the entire period between receipt of notice and implementation of the reassignments on December 4, 1980. In my view, the one counterproposal prepared on a single days notice, which involved only seniority, does not waive the Union's right to bargain concerning other impacts of the reassignment. In fact, the submission of this counterproposal indicates that the Union was concerned with the impact of this reassignment. Nor would I find that this single counterproposal limited the scope of any further impact bargaining on the subject of seniority as Respondent's arguments seem to suggest. Osheroff's testimony clearly indicates that the Union had concerns other than seniority, but that he was unable to impress Mr. Covington with that position on November 25. Respondent also maintains that it moved to implement the changes on December 3, only after it did not hear from the Union for two days. However, as previously noted Osheroff received the notice on December 1 and requested a meeting on December 3, prior to the December 4 implementation, but the parties did not meet until December 8. In light of the Union's obvious interest in negotiating the change, it was not unreasonable for the Union to take the two additional days allowed to develop its counterproposals and contact management to schedule negotiations. /4/ Since there was a request to negotiate on the implementation and impact and no showing of any overriding exigency which would have required it to act on the reassignments prior to discussing implementation and impact as requested by the Union on December 3 it appears that there is no reason why Respondent could not have delayed reassignment until after it had met with the Union. In all the circumstances of the case, I find that no overriding exigency existed, that the five days notification afforded the Union prior to implementing the reassignments did not allow it ample opportunity to investigate and formulate meaningful counterproposals and that the parties were unable to explore fully the matter prior to implementation because the Union was not given reasonable notice of the implementation. Based on the foregoing, it is found that the Union was not afforded reasonable notice and an opportunity to develop proposals and meet with management to discuss those proposals in any meaningful fashion prior to the implementation of the reassignment and that Respondent's failure to give reasonable notice concerning the reassignments prevented full exploration of the matter before any action was taken and constituted a violation of section 7116(a)(1) and (5) of the Statute. /5/ Remedy In its brief, the Charging Party requested a status quo ante remedy in this matter. The imposition of such a remedy could possibly cause a potential disruption of Respondent's operation and create a hardship on the part of the branches concerned. In such circumstances, while the Respondent clearly has an obligation to bargain concerning the implementation and impact of its decision to make the reassignments, it is my view that because of potential hardships and disruption a status quo ante remedy would be unwarranted. See, San Antonio Air Logistics Center (AFLC) Kelly Air Force Base, Texas, 5 FLRA No. 22. However, it is recommended that Respondent be ordered to bargain concerning the impact and implementation of the reassignment as it affected those employees represented by the Union. Having found that Respondent violation section 7116(a)(1) and (5) of the Statute, it is recommended that the following Order be adopted. ORDER Pursuant to section 7105(g)(3) of the Federal Service Labor-Management Relations Statute, and section 2400.2 of its Regulations, it is hereby ordered that the Bureau of Government Financial Operations Headquarters, Washington, D.C. shall: (a) Instituting a reassignment of employees represented exclusively by National Treasury Employees Union, without first notifying the exclusive representative and affording it an opportunity to meet and confer, to the extent consonant with law and regulation, concerning the implementation of such reassignments and its impact on affected employees. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Notify the National Treasury Employees Union, of any intended reassignment of employees, and, upon request consult and negotiate with such representative to the extent consonant with law and regulations, concerning the impact and implementation of such reassignment. (b) Post at its facility at the Liberty Loan Building, Washington, D.C., copies of the attached notice marked "Appendix", on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such form they shall be signed by the Director and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all 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, what steps have been taken to comply therewith. ELI NASH, JR. Administrative Law Judge Dated: June 12, 1981 Washington, D.C. 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 institute any reassignment with respect to employees represented by the National Treasury Employees Union, without first notifying such representative and affording it the opportunity to consult and negotiate, to the extent consonant with law and regulations, concerning the impact and implementation of such reassignment. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL notify the National Treasury Employees Union, of any intended reassignment and, upon request, consult and negotiate, to the extent consonant with law and regulations, on the impact and implementation of such reassignment. (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, Region III, Federal Labor Relations Authority, whose address is: 1133 - 15th Street, N.W., Suite 300, Washington, D.C. 20005, and whose phone number is (202) 653-8452. --------------- FOOTNOTES$ --------------- /1A/ The Respondent excepts to certain remarks and comments allegedly made by the Judge at the prehearing conference, contending they indicate that the Judge had already formed an irrevocable opinion before management was afforded its opportunity to present and argue its case. The purpose and policies of the Federal Service Labor-Management Relations Statute include encouraging parties to resolve disputes by fostering and affording an atmosphere conducive to the settlement of unfair labor practice allegations and preventing and avoiding needless litigation. To this end, section 2423.19(j) of the Authority's Rules and Regulations authorizes the Judge to hold conferences for the settlement or simplification of issues. In the Authority's view, to unduly restrict or eliminate a free exchange of views at a prehearing conference would inhibit the settlement of unfair labor practice allegations. Upon review of the Respondent's exceptions and the overall record herein, the Authority specifically finds no merit to this exception. /1/ The name appears as amended at the hearing. /2/ Respondent's right to make the decision to reassign employees has not been challenged. /3/ See Federal Railroad Administration, A/SLMR No. 418, A/SLMR 498 (1974); See also, Army and Air Force Exchange, Hawaii Regional Exchange, A/SLMR No. 454, 4 A/SLMR 791 (1974). /4/ Department of Treasury, Internal Revenue Service, New Orleans District, A/SLMR No. 995, 8 A/SLMR 243 (1978). /5/ In view of the above, I reject Respondent's contention that the complaint in this matter was not of sufficient clarity to constitute the basis for a violation of the Statute.