The Association of Civilian Technicians, Inc., New York Council (Union) and Division of Military and Naval Affairs, State of New York (Activity)
[ v02 p703 ]
02:0703(90)AR
The decision of the Authority follows:
2 FLRA No. 90
THE ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., NEW
YORK COUNCIL
Union
and
DIVISION OF MILITARY AND
NAVAL AFFAIRS, STATE OF
NEW YORK
Activity
FLRC No. 78A-149
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
AWARD OF ARBITRATOR BENJAMIN H. WOLF FILED WITH THE FEDERAL LABOR
RELATIONS COUNCIL. /1/
ACCORDING TO THE ARBITRATOR, THE GRIEVANCE IN THIS CASE AROSE WHEN
THE ACTIVITY POSTED A VACANCY ANNOUNCEMENT FOR THE POSITION OF
SUPERVISORY PERSONNEL MANAGEMENT SPECIALIST. THE ANNOUNCEMENT LIMITED
APPLICANTS TO EXCEPTED TECHNICIAN EMPLOYEES WITH THE MILITARY GRADE OF
OFFICER OR WARRANT OFFICER, THEREBY PRECLUDING ALL EXCEPTED EMPLOYEES
WHO HELD ENLISTED GRADES FROM APPLYING FOR THE POSITION. THE OFFICIAL
JOB DESCRIPTION FOR THE POSITION INDICATED THAT IT WAS OPEN TO EXCEPTED
EMPLOYEES WHO ARE OFFICERS, WARRANT OFFICERS OR ENLISTED EMPLOYEES. THE
DISPUTE ULTIMATELY WENT TO ARBITRATION.
THE ARBITRATOR SET FORTH THE ISSUE BEFORE HIM AS FOLLOWS:
DID MANAGEMENT VIOLATE THE MERIT PROMOTION ARTICLE, ARTICLE 14, OF
SECTION 6 OF THE
NEGOTIATED AGREEMENT BETWEEN THE PARTIES IN POSTING VACANCY
ANNOUNCEMENT 76-62 ON AUGUST 10,
1976, WHICH LIMITED APPLICANTS TO THE POSITION OF SUPERVISORY
PERSONNEL MANAGEMENT SPECIALIST,
GS-09, TO SOLELY THOSE EMPLOYEES WHO HELD OFFICER OR WARRANT OFFICER
MILITARY GRADES IN THE
NATIONAL GUARD, WHERE THE TECHNICIAN JOB DESCRIPTION FROM THE
NATIONAL GUARD BUREAU FOR THE
AFORESAID POSITION INDICATED ENLISTED PERSONNEL WERE ABLE TO APPLY AS
WELL.
IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR DETERMINED THAT
SINCE ARTICLE 14, SECTION 6 /2/ OF THE PARTIES' AGREEMENT STATES THAT
QUALIFICATION STANDARDS WILL BE IN ACCORDANCE WITH THOSE CONTAINED IN
OFFICIAL JOB DESCRIPTIONS AND THE JOB DESCRIPTION FOR THE POSITION IN
QUESTION PROVIDES THAT OFFICERS, WARRANT OFFICERS AND ENLISTED MEN ARE
ELIGIBLE TO FILL SUCH POSITIONS, THE ACTIVITY HAD VIOLATED ARTICLE 14,
SECTION 6 BY EXCLUDING ENLISTED MEN.
ACCORDINGLY, THE ARBITRATOR AWARDED AS FOLLOWS:
MANAGEMENT VIOLATED THE MERIT PROMOTION ARTICLE, ARTICLE 14, SECTION
6, OF THE NEGOTIATED
AGREEMENT BETWEEN THE PARTIES IN POSTING VACANCY ANNOUNCEMENT 76-62
ON AUGUST 10, 1976.
MANAGEMENT IS DIRECTED TO RERUN THE VACANCY ANNOUNCEMENT AND TO OPEN
COMPETITION TO ALL
EXCEPTED TECHNICIAN EMPLOYEES INCLUDING ENLISTED MEN.
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
BASED UPON THE EXCEPTIONS DISCUSSED BELOW. /3/ THE UNION FILED AN
OPPOSITION TO THE PETITION.
IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG. 44741)
AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE FEDERAL LABOR
RELATIONS COUNCIL, 5 C.F.R.PART 2411(1978), REMAIN OPERATIVE WITH
RESPECT TO THE PRESENT CASE EXCEPT THAT THE WORD "AUTHORITY" IS
SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH
RULES.
UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATION
AWARD IGNORES PAST PRACTICE. IN SUPPORT OF THIS EXCEPTION, THE AGENCY
ASSERTS THAT PRIOR TO THE PRESENT GRIEVANCE MANAGEMENT PUBLISHED VACANCY
ANNOUNCEMENTS WHICH EXCLUDED CERTAIN MILITARY CLASSIFICATIONS IN THE
SAME FASHION AS IN THE CASE HEREIN AND IN MANY INSTANCES THE UNION DID
NOT GRIEVE SUCH ACTIONS.
THIS EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE AUTHORITY WILL
GRANT REVIEW OF AN ARBITRATION AWARD UNDER SECTION 2411.32 OF THE
AMENDED RULES. THAT IS, THE EXCEPTION DOES NOT ASSERT A GROUND UPON
WHICH REVIEW HAS BEEN GRANTED IN THE FEDERAL SECTOR NOR DOES IT APPEAR
SIMILAR TO THOSE UPON WHICH CHALLENGES TO LABOR ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR CASES. IN THIS REGARD, THE AGENCY
CITES NO PRIVATE SECTOR CASES IN WHICH COURTS HAVE HELD THIS EXCEPTION
TO BE A GROUND FOR REVIEW OF ARBITRATION AWARDS. ACCORDINGLY, THE
AGENCY'S FIRST EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS
PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES OF PROCEDURE.
IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD VIOLATES
APPROPRIATE REGULATION. IN SUPPORT OF THIS EXCEPTION, THE AGENCY
ASSERTS THAT "DUE CONSIDERATION WAS NOT GIVEN . . . TECHNICIAN PERSONNEL
PAMPHLET (TPP) 911 . . . WHICH CONCERNS THE MERIT PROMOTION PROGRAM
INVOLVED HEREIN." THE AGENCY ALSO ASSERTS THAT THE RESULT OF THE AWARD
WOULD BE TO PRECLUDE MANAGEMENT FROM CONSIDERING SECTION 3-8 OF TPP 911,
ENTITLED "SELECTIVE PLACEMENT FACTORS" IN PUBLISHING VACANCY
ANNOUNCEMENTS.
THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
IN THE PETITION, THAT AN AWARD VIOLATES AN APPROPRIATE REGULATION.
HOWEVER, AND WITHOUT DECIDING WHETHER OR NOT TPP 911 IS AN "APPROPRIATE
REGULATION" WITHIN THE MEANING OF SECTION 2411.32 OF THE AMENDED RULES
OF PROCEDURE, THE AUTHORITY IS OF THE OPINION THAT IN THIS CASE THE
AGENCY'S PETITION DOES NOT CONTAIN A DESCRIPTION OF FACTS AND
CIRCUMSTANCES TO SUPPORTS ITS SECOND EXCEPTION.
THE BASIC THRUST OF THE AGENCY'S EXCEPTION IS THAT "DUE
CONSIDERATION" WAS NOT GIVEN TO TPP 911. HOWEVER, IT IS NOTED THAT THE
ARBITRATOR SPECIFICALLY REFERRED TO TPP 911 IN THE DISCUSSION
ACCOMPANYING HIS AWARD AND PARTICULARLY POINTED OUT THE LANGUAGE THEREIN
THAT SELECTIVE PLACEMENT FACTORS MAY BE USED AS A SECONDARY SCREENING
FACTOR. MOREOVER, THE AGENCY IN ITS EXCEPTION DOES NOT DEMONSTRATE IN
WHAT MANNER THE ARBITRATOR'S AWARD, IN WHICH THE ARBITRATOR FOUND THAT
IN POSTING THE VACANCY ANNOUNCEMENT IN THIS PARTICULAR CASE THE AGENCY
VIOLATED THE PARTIES' NEGOTIATED AGREEMENT, VIOLATES TPP 911. NOR DOES
THE AGENCY DEMONSTRATE IN WHAT MANNER THE ARBITRATOR'S AWARD WOULD
PRECLUDE IT FROM CONSIDERING THE SELECTIVE PLACEMENT FACTORS OF SECTION
3-8 TPP IN THE FUTURE. THEREFORE, THE AGENCY'S SECOND EXCEPTION
PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32
OF THE AMENDED RULES OF PROCEDURE.
IN ITS THIRD EXCEPTION, THE AGENCY ASSERTS THAT THE AWARD VIOLATES
THE PAROL EVIDENCE RULE. IN SUPPORT OF THIS EXCEPTION, THE AGENCY
CONTENDS THAT THE PAROL EVIDENCE RULE WAS VIOLATED BY THE ARBITRATOR IN
CONJUNCTION WITH THE LACK OF CONSIDERATION HE GAVE TO TPP 911 WHICH
CLEARLY SETS FORTH SELECTIVE PLACEMENT FACTORS.
THIS EXCEPTION DOES NOT STATE A GROUND UPON WHICH THE AUTHORITY WILL
GRANT REVIEW OF AN ARBITRATION AWARD UNDER SECTION 2411.32. THAT IS,
THE EXCEPTION DOES NOT STATE A GROUND UPON WHICH REVIEW HAS BEEN GRANTED
IN THE FEDERAL SECTOR NOR DOES IT APPEAR SIMILAR TO THOSE UPON WHICH
CHALLENGES TO LABOR ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
PRIVATE SECTOR CASES. IN THIS REGARD, THE AGENCY CITES NO PRIVATE
SECTOR CASES IN WHICH COURTS HAVE HELD THIS EXCEPTION TO BE A GROUND FOR
REVIEW OF ARBITRATION AWARDS. ACCORDINGLY THE AGENCY'S THIRD EXCEPTION
PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32
OF THE AMENDED RULES OF PROCEDURE.
IN ITS FOURTH EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD VIOLATES
APPLICABLE LAW. THE AGENCY STATES THAT THE NATIONAL GUARD TECHNICIAN
ACT OF 1968 GIVES ADJUTANTS GENERAL THE AUTHORITY TO EMPLOY AND
ADMINISTER TECHNICIANS AND THIS AUTHORITY, THE AGENCY ASSERTS, INCLUDES
ADVERTISING POSITION VACANCIES IN THE MANNER DEEMED MOST APPROPRIATE.
THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
IN THE PETITION, THAT AN AWARD VIOLATES APPLICABLE LAW. HOWEVER, THE
AGENCY'S EXCEPTION IN THIS CASE IS NOT SUPPORTED BY THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION. THUS, THE AGENCY DOES NOT
DEMONSTRATE IN WHAT MANNER THE ARBITRATOR'S AWARD DIRECTING THE AGENCY
TO RERUN THE VACANCY ANNOUNCEMENT IN ACCORDANCE WITH THE PROVISIONS OF
THE PARTIES' NEGOTIATED AGREEMENT VIOLATES THE NATIONAL GUARD TECHNICIAN
ACT OF 1968. NOR DOES THE AGENCY PROVIDE ANY SUPPORT FOR ITS GENERAL
ASSERTION THAT THE ACT GIVES AN ADJUTANT GENERAL "THE RIGHT TO ADVERTISE
POSITION VACANCIES IN THE MANNER DEEMED MOST APPROPRIATE." THEREFORE,
THIS EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF THE AGENCY'S PETITION
UNDER SECTION 2411.32 OF THE AMENDED RULES.
IN ITS FIFTH EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD VIOLATES
EXECUTIVE ORDER 11491. THE AGENCY ASSERTS THAT THE AWARD VIOLATES
SECTION 12(A) OF THE ORDER "WHICH, BY INCORPORATION OF APPROPRIATE
REGULATION, GIVES THE AGENCY THE RIGHT AND OBLIGATION TO DECIDE THE BEST
COURSE TO PURSUE IN ANNOUNCING A POSITION VACANCY" AND SECTION 12(B)(5)
OF THE ORDER WHICH GIVES THE AGENCY THE RIGHT "TO DETERMINE THE METHODS,
MEANS AND PERSONNEL BY WHICH (GOVERNMENT) OPERATIONS ARE TO BE
CONDUCTED. /4/
ALTHOUGH THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
ARBITRATION AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
CIRCUMSTANCES DESCRIBED IN THE PETITION FOR REVIEW, THAT THE AWARD
VIOLATES THE ORDER, THE AGENCY'S PETITION FAILS TO PRESENT THE NECESSARY
FACTS AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION. THUS, AS TO THE
AGENCY'S ALLEGATION THAT THE AWARD VIOLATES SECTION 12(A) OF THE ORDER,
IT IS WELL ESTABLISHED UNDER THE ORDER THAT AN EXCEPTION TO AN AWARD
ASSERTING THAT THE AWARD VIOLATES SECTION 12(A) OF THE ORDER DOES NOT
STATE A GROUND UPON WHICH REVIEW OF AN ARBITRATION AWARD WILL BE
GRANTED. AS EXPLAINED IN ROCKY MOUNTAIN ARSENAL AND AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL NO. 2197 (SELIGSON, ARBITRATOR), 5 FLRC
859 (FLRC NO. 77A-53 (AUGUST 31, 1977), REPORT NO. 137):
(S)ECTION 12(A) OF THE ORDER PROVIDES ONLY THAT THE ADMINISTRATION OF
A NEGOTIATED
AGREEMENT IS SUBJECT TO THE LEGAL AND REGULATORY REQUIREMENTS CITED
IN THAT SECTION; IT DOES
NOT EXTEND TO THE PARTIES TO SUCH AN AGREEMENT ANY RIGHTS OR
OBLIGATIONS INDEPENDENT OF THOSE
REQUIREMENTS AND THEREFORE DOES NOT, IN AND OF ITSELF, PROVIDE A
GROUND UPON WHICH THE COUNCIL
WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD. (FOOTNOTE
OMITTED.) ID. AT 865 OF
THE COUNCIL'S DECISION.
THEREFORE, THAT PART OF THE AGENCY'S FIFTH EXCEPTION ALLEGING THAT
THE AWARD VIOLATES SECTION 12(A) OF THE ORDER PROVIDES NO BASIS FOR
ACCEPTANCE OF ITS PETITION UNDER THE AMENDED RULES OF PROCEDURE.
AS TO THAT PART OF THE AGENCY'S EXCEPTION WHICH ALLEGES THAT THE
AWARD VIOLATES SECTION 12(B)(5) OF THE ORDER, AGAIN THE AGENCY HAS NOT
PRESENTED FACTS AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION. THE AGENCY
HAS NOT SHOWN IN WHAT WAY THE ARBITRATOR'S AWARD, IN WHICH HE DIRECTED
THE ACTIVITY TO RERUN THE VACANCY ANNOUNCEMENT IN ACCORDANCE WITH THE
PARTIES' AGREEMENT, WOULD IN ANY MANNER INFRINGE UPON MANAGEMENT'S
RIGHT, AFTER RERUNNING THE ANNOUNCEMENT, TO DETERMINE THE METHODS, MEANS
AND PERSONNEL BY WHICH THE AGENCY'S OPERATIONS ARE TO BE CONDUCTED.
THUS, THE AGENCY'S FIFTH EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF
ITS PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES OF PROCEDURE.
THE AGENCY ALSO CONTENDS THAT THE AWARD SHOULD BE DECLARED VOID
BECAUSE THE GRIEVANCE WAS IMPROPERLY DETERMINED TO BE ARBITRABLE AND
THEREFORE THE ARBITRATOR DID NOT HAVE JURISDICTION TO DECIDE THE
DISPUTE. THE RECORD INDICATES THAT THE QUESTION OF ARBITRABILITY IN
THIS CASE WAS INITIALLY SUBMITTED TO A REGIONAL ADMINISTRATOR OF THE
DEPARTMENT OF LABOR FOR DECISION AND THAT HE FOUND THE MATTER
ARBITRABLE. THERE IS NO INDICATION THAT THE AGENCY APPEALED THE
REGIONAL ADMINISTRATOR'S DECISION TO THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS AS PROVIDED FOR UNDER THE EXECUTIVE
ORDER, AND, INSTEAD, THE RECORD INDICATES THAT FOLLOWING RECEIPT OF THE
REGIONAL ADMINISTRATOR'S DECISION THE PARTIES PROCEEDED TO ARBITRATION.
IN THESE CIRCUMSTANCES THERE IS NO BASIS FOR THE AUTHORITY TO NOW
QUESTION THE REGIONAL ADMINSTRATOR'S DETERMINATION THAT THE MATTER
INVOLVED HEREIN WAS ARBITRABLE.
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS FOR REVIEW SET FORTH IN SECTION 2411.32
OF THE AMENDED RULES. THE AGENCY'S REQUEST FOR A STAY OF THE AWARD IS
ALSO DENIED. /5/
ISSUED, WASHINGTON, D.C., FEBURARY 29, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ THE FUNCTIONS OF THE FEDERAL LABOR RELATIONS COUNCIL, IN MATTERS
SUCH AS HERE INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION
304 OF REORGANIZATION PLAN NO. 2 OF 1978 (43 FED.REG. 36040), WHICH
TRANSFER OF FUNCTIONS IS IMPLEMENTED BY SECTION 2400.5 OF THE
AUTHORITY'S TRANSITION RULES AND REGULATIONS (44 FED.REG. 44741). 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 (5 U.S.C. 7135 (B)).
/2/ ACCORDING TO THE ARBITRATOR, ARTICLE 14, SECTION 6 PROVIDES:
QUALIFICATION STANDARDS WILL BE IN ACCORDANCE WITH THOSE CONTAINED IN
OFFICIAL JOB
DESCRIPTIONS AND SUCH SELECTIVE PLACEMENT FACTORS AS MAY BE REQUIRED.
/3/ IN ITS PETITION, THE AGENCY ALSO REQUESTED ORAL ARGUMENT IN THIS
CASE. THIS REQUEST IS DENIED BECAUSE THE POSITIONS OF THE PARTIES ARE
ADEQUATELY REFLECTED IN THE ENTIRE RECORD BEFORE THE AUTHORITY.
/4/ SECTION 12(A) AND (B)(5) OF E.O. 11491 PROVIDE:
SEC. 12 BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES
ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY
PUBLISHED AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND
BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS
OF APPROPRIATE
AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT
A HIGHER AGENCY LEVEL;
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
* * * *
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED(.)
/5/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS 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 DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.