Veterans Administration Medical Center, Shreveport, LA (Respondent) and American Federation of Government Employees, AFL-CIO, Local 2000 (Complainant) 



[ v03 p430 ]
03:0430(65)CA
The decision of the Authority follows:


 3 FLRA No. 65
 
 VETERANS ADMINISTRATION MEDICAL
 CENTER, SHREVEPORT, LOUISIANA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2000
 Complainant
 
                                            Assistant Secretary
                                            Case Nos. 64-4243(CA)
                                                      64-4265(CA)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT
 ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS AND
 RECOMMENDING THAT THE COMPLAINTS BE DISMISSED IN THEIR ENTIRETY.
 THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS 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 REORGANIZATIONAL
 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
 (45 F.R. 3482, JANUARY 17, 1980).  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 THE SUBJECT
 CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS IN CASE NO. 64-4265(CA), THE AUTHORITY NOTES
 PARTICULARLY THAT THE ADMINISTRATIVE LAW JUDGE, IN DISMISSING THE
 19(A)(1) COMPLAINT WITH RESPECT TO RESPONDENT'S STATEMENT CONCERNING THE
 DOCUMENTATION OF AN EMPLOYEE'S COMPLAINTS, FOUND THAT THE STATEMENT IN
 QUESTION "HAD NOTHING TO DO WITH THE DOCUMENTATION OF ANY OF (THE
 EMPLOYEE'S) WORK PROBLEMS." /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINTS IN ASSISTANT SECRETARY CASE
 NOS. 64-4243(CA) AND 64-4265(CA) BE AND ARE HEREBY DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 16, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    LYNDA BECK FENWICK, ATTORNEY
 
    OFFICE OF DISTRICT COUNSEL
 
    VARO
 
    1400 NORTH VALLEY MILLS DRIVE
 
    WACO, TEXAS
 
    AND
 
    MR. JOHN MALONE, CHIEF PERSONNEL OFFICER
 
    VETERANS HOSPITAL MEDICAL CENTER
 
    SHREVEPORT, LOUISIANA
 
                            FOR THE RESPONDENT
 
    MR. CARL HOLT, NATIONAL REPRESENTATIVE
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 
    3101 AVON DRIVE
 
    ARLINGTON, TEXAS 76015
 
    AND
 
    GEORGIE PARKER LUCAS, CHIEF STEWARD
 
    VETERANS HOSPITAL MEDICAL CENTER
 
    SHREVEPORT, LOUISIANA
 
                            FOR THE COMPLAINANT
 
    BEFORE:  ELI NASH, JR.
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THESE CONSOLIDATED CASES ARE BEFORE THE FEDERAL LABOR RELATIONS
 AUTHORITY BASED ON AMENDED COMPLAINTS, FILED BY THE AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES LOCAL 2000, AFL-CIO HEREINAFTER CALLED "THE
 COMPLAINANT" ALLEGING THAT THE VETERANS ADMINISTRATION MEDICAL CENTER,
 HEREINAFTER CALLED "RESPONDENT" VIOLATED SECTION 19(A)(1) OF EXECUTIVE
 ORDER 11491, AS AMENDED BASED ON CERTAIN ACTIONS AND STATEMENTS MADE BY
 EARL KEPHART, CHIEF OF NURSING SERVICES.  THE DECISION AND ORDER HEREIN
 IS ISSUED FOR THE FEDERAL LABOR RELATIONS AUTHORITY IN ACCORDANCE WITH
 THE TRANSITION RULES AND REGULATIONS PUBLISHED IN THE FEDERAL REGISTER,
 VOL. 44, NO. 1, JANUARY 2, 1979, PP. 5-8.
 
    A HEARING WAS HELD IN SHREVEPORT, LOUISIANA ON AUGUST 2, 1979.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
 INVOLVED HEREIN.  UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, THE ARGUMENTS OF THE
 PARTIES AND THE BRIEF SUBMITTED BY RESPONDENT, I MAKE THE FOLLOWING
 FINDINGS OF FACT AND CONCLUSIONS OF LAW.
 
                             FINDINGS OF FACT
 
    THE COMPLAINANT UNION, IS, AND AT ALL TIMES MATERIAL HEREIN HAS BEEN,
 THE EXCLUSIVE REPRESENTATIVE OF ALL REGULAR EMPLOYEES OF THE RESPONDENT
 MEDICAL CENTER.  AT ALL TIMES MATERIAL HEREIN RESPONDENT AND THE UNION
 WERE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINS A
 GRIEVANCE PROCEDURE.
 
    ALTHOUGH THERE IS A SUBSTANTIAL AMOUNT OF BACKGROUND EVIDENCE IN THE
 RECORD SHOWING THE LABOR RELATIONS CLIMATE BETWEEN THE PARTIES THE
 SPECIFIC ISSUES IN THIS MATTER INVOLVE ONLY TWO SPECIFIC EVENTS WHICH
 ARE SET OUT BELOW:
 
              CASE NO. 64-4265(CA)-- THE FEBRUARY 24 MEETING
 
    AT THE REQUEST OF CHIEF STEWARD, GEORGIA LUCAS, A MEETING WAS HELD ON
 FEBRUARY 24, 1978, AT WHICH COMPLAINANT WAS REPRESENTED BY MRS. LUCAS
 AND CARL HOLT, COMPLAINANT'S NATIONAL REPRESENTATIVE.  RESPONDENT WAS
 REPRESENTED BY MR. KEPHART AND ASSISTANT PERSONNEL OFFICER GUSTAVO
 GUERRA.  THE PARTIES AGREED THAT THE PURPOSE OF THE MEETING WAS TO
 DISCUSS DISAGREEMENT OVER INTERPRETATION RELATING ONLY TO HANDLING OF
 GRIEVANCES.  HOWEVER, DURING THE COURSE OF THIS MEETING CERTAIN
 STATEMENTS WERE ALLEGEDLY MADE REGARDING THE DOCUMENTING OF COMPLAINTS
 OF EMPLOYEE FANNIE HARPER.
 
    MR. GUERRA DID NOT RECALL ANY SPECIFIC REFERENCE TO MS. HARPER'S
 GRIEVANCE ALTHOUGH STATING THERE MAY HAVE BEEN SOME CONVERSATION ALONG
 THAT LINE.
 
    ACCORDING TO MR. KEPHART, MR. HOLT MENTIONED TO HIM THAT HE
 UNDERSTOOD MS. HARPER WAS A PROBLEM EMPLOYEE.  KEPHART'S RESPONSE WAS
 "YOU MIGHT SAY THAT." HE THEN ALLEGEDLY MENTIONED THAT MS. HARPER DID
 STOP AT EITHER THE PERSONNEL OFFICE OR ON SEVERAL OCCASIONS AT THE
 DIRECTOR'S OFFICE IN THE MORNING WHEN SHE CAME OFF DUTY.  HOLT THEN
 ASKED IF THESE OCCURRENCES HAD BEEN DOCUMENTED AND KEPHART REPLIED THAT
 THEY HAD NOT BEEN DOCUMENTED SINCE THEY WERE NOT VISITS WITH HIM.  HOLT
 ASKED, "DON'T YOU THINK THEY SHOULD HAVE BEEN DOCUMENTED." KEPHART
 REPLIED, "PERHAPS SO." ON FURTHER EXAMINATION, MR. KEPHART TESTIFIED
 THAT THE REFERENCE TO DOCUMENTING COMPLAINTS WAS TO THOSE COMPLAINTS MS.
 HARPER WAS HERSELF MAKING AND NOT TO DOCUMENTING OF MISTAKES SHE HAD
 MADE ON THE JOB.  HE FURTHER TESTIFIED THAT COMPLAINTS OF OTHER
 EMPLOYEES MADE AT THE DIRECTOR'S OFFICE WERE NOT DOCUMENTED.
 
    THERE IS RECORD EVIDENCE THAT MS. HARPER SOMETIMES DEVIATED FROM THE
 AGREED UPON CONTRACT PROCEDURE AND IN CONTACTING THE PROPER PARTIES IN
 ORDER TO PRESENT HER GRIEVANCES.
 
    MR. HOLT TESTIFIED THAT KEPHART MENTIONED THAT THEY HAD HAD TROUBLE
 WITH MS. HARPER. MR. HOLT RESPONDED THAT, "I WOULD SUGGEST TO YOU AS I
 DO ALL MANAGEMENT OFFICIALS, WHEN HAVING A PROBLEM WITH AN EMPLOYEE, LET
 US KNOW AND WE WILL SEE WHAT WE CAN DO TO HELP." FINALLY, MR. HOLT
 TESTIFIED THAT HE FELT A THREAT TO DOCUMENT AN EMPLOYEE'S ACTIONS AFTER
 FILING A GRIEVANCE IS A DEFINITE THREAT.
 
    MRS. LUCAS STATED THAT AT THE FEBRUARY 24 MEETING SHE WAS TOLD BY MR.
 KEPHART, "THAT CERTAIN THINGS HAD GONE ON AND HAD NOT BEEN DOCUMENTED IN
 MS. HARPER'S JOB PERFORMANCE, BUT THAT THEY WOULD IN THE FUTURE BE
 DOCUMENTED, AND THE ONLY WAY THAT SHE INTERPRETED THE STATEMENT AS A
 THREAT.  MRS. LUCAS FURTHER TESTIFIED THAT MR. KEPHART INDICATED THAT
 MS. HARPER WOULD BE DOCUMENTED VERY CLOSELY.
 
                CASE NO. 64-6243(CA)-- THE MARCH 17 MEETING
 
    ON MARCH 17, 1978, MR. KEPHART MET IN HIS OFFICE WITH MRS. LUCAS AND
 GRIEVANT FANNIE HARPER.  ACCORDING TO ALL OF THE PARTIES THE PURPOSE OF
 THIS MEETING WAS TO RECEIVE AN ANSWER TO THE SECOND STEP OF A GRIEVANCE
 PRESENTED UNDER THE CONTRACT.  ALSO PRESENT DURING THIS MEETING WAS, MR.
 KEPHART'S SECRETARY, LAVENIA ALLEND.
 
    MRS. LUCAS TESTIFIED THAT WHEN SHE SAW MRS. ALLEND IN THE MEETING
 THAT SHE POINTED OUT TO MR. KEPHART THAT HER PRESENCE WAS NOT PROPER BUT
 MR. KEPHART WOULD NOT ASK MRS. ALLEND TO LEAVE.
 
    THE RECORD ESTABLISHED THAT MRS. ALLEND IS THE SECRETARY TO THE CHIEF
 OF NURSING SERVICE, BUT IS A MEMBER OF THE BARGAINING UNIT.  SHE TYPED
 THE REPLY TO MS. HARPER'S GRIEVANCE AND WAS PRESENT AT THE MEETING, AT
 THE REQUEST OF MR. KEPHERT.  ALSO, SHE WAS AWARE THAT THE PURPOSE OF THE
 MEETING WAS TO GIVE THE WRITTEN REPLY TO MS. HARPER.  FINALLY, SHE
 TESTIFIED THAT SHE NORMALLY SAT IN ON THE TYPE OF MEETING THAT WAS HELD
 THAT DAY.
 
    MR. KEPHART RECALLS THAT MRS. ALLEN'S PRESENCE WAS REQUESTED AT THIS
 MEETING SIMPLY TO HAVE A REPRESENTATIVE WITH HIM IN THE OFFICE.
 
    THE PURPOSE OF THIS MEETING, AS PREVIOUSLY STATES WAS TO PRESENT TO
 THE GRIEVANT, MS. HARPER THE AGENCY'S RESPONSE TO THE SECOND STEP OF THE
 GRIEVANCE UNDER THE CONTRACT.  /2/ MRS. LUCAS CONTENDED THAT, IT IS
 CUSTOMARY THAT ANY QUESTIONS GRIEVANT HAS REGARDING THE REPLY IS
 DISCUSSED BEFORE PROCEEDING TO THE NEXT STEP.  CLEARLY, MR. KEPHART
 REFUSED TO DISCUSS THE MATTER DURING THIS MEETING AND THE MEETING WAS
 APPARENTLY VERY HEATED.
 
                        DISCUSSION AND CONCLUSIONS
 
    IN CASE NO. 64-4243(CA) COMPLAINANT CONTENDS THAT, IN ALLOWING MR.
 KEPHART'S SECRETARY TO BE PRESENT WHEN HE DISCUSSED A GRIEVANCE WITH THE
 GRIEVANT MR. HARPER, RESPONDENT VIOLATED SECTION 19(A)(1) OF THE ORDER.
 THE GRAVAMEN OF THE COMPLAINT IS THAT OF THE SECRETARY, WHO WAS A
 BARGAINING UNIT MEMBER, DESTROYED THE CONFIDENTIALITY OF THE MEETING.
 THE COMPLAINANT CONTENDS, IN ESSENCE, THAT THE PRESENCE OF MANAGEMENT
 OFFICIALS AND OTHERS AT GRIEVANCE MEETINGS IS NOT CONDUCIVE TO HOLDING A
 CONSTRUCTIVE MEETING.  /3/
 
    IN MY VIEW, THE PURPOSE OF THIS MEETING WAS MERELY TO PRESENT THE
 AGENCY'S RESPONSE TO THE GRIEVANT'S SECOND STEP GRIEVANCE.  DESPITE
 COMPLAINANT'S CONTENTIONS TO THE CONTRARY, THERE IS NO PROVISION IN THE
 CONTRACT UNDER ARTICLE VII FOR DISCUSSION AT THIS LEVEL NOR DOES THE
 RECORD ESTABLISH A PAST PRACTICE OF SUCH DISCUSSIONS.  THEREFORE, IT IS
 FOUND THAT NO DISCUSSION WAS UNDERWAY WITH WHICH THE PRESENCE OF MRS.
 ALLEND COULD HAVE INTERFERED.  MOREOVER, THE RECORD REVEALS NO OTHER
 REASON WHY THE PRESENCE OF MRS. ALLEND, EITHER AS AN OBSERVER OR
 REPRESENTATIVE, WOULD INTERFERE WITH OR RESTRAIN EMPLOYEE RIGHTS.
 HAVING CONSIDERED THE ENTIRE RECORD BEFORE ME, I FIND NO BASIS TO
 SUPPORT A FINDING THAT THE PRESENCE OF MRS. ALLEND AT THE MARCH 17, 1978
 MEETING CONSTITUTED A VIOLATION OF THE ORDER.
 
    WITH RESPECT TO THE ISSUE IN CASE NO. 64-4265(CA) THAT MR. KEPHART
 THREATENED MS. HARPER BY TELLING HER THAT HE HAD LET CERTAIN PROBLEMS GO
 UNDOCUMENTED;  BUT SINCE SHE HAD FILED A GRIEVANCE, HE WAS GOING TO
 DOCUMENT EVERYTHING INVOLVING MS. HARPER AND WOULD TAKE APPROPRIATE
 ACTION, I FIND THAT COMPLAINANT HAS NOT ESTABLISHED BY A PREPONDERANCE
 OF THE EVIDENCE THAT SUCH STATEMENT, IF MADE, WAS VIOLATIVE OF THE
 ORDER.
 
    A DETERMINATION OF WHETHER A STATEMENT VIOLATES SECTION 19(A)(1) MUST
 TAKE INTO CONSIDERATION THE ENTIRE CIRCUMSTANCES SURROUNDING THE MAKING
 OF THE STATEMENT.  CF.  INTERNAL REVENUE SERVICE, MID ATLANTIC CENTER,
 4/ASLMR 516, A/SLMR NO. 421(1974).
 
    INTERESTINGLY, MS. HARPER AGAINST WHOM THE THREAT WAS ALLEGEDLY MADE
 WAS NOT PRESENT DURING THE MEETING.  FURTHER, THERE WAS NO REFUSAL TO
 PROCESS A GRIEVANCE OF HARPER'S OR ANY OTHER EMPLOYEE AT THIS MEETING,
 BUT THERE WAS CONSIDERABLE DISCUSSION AS TO HOW GRIEVANCES WOULD BE
 HANDLED.  WITHIN THE CONTEXT OF THE DISCUSSIONS WHICH OCCURRED DURING
 THE MEETING IT IS ENTIRELY POSSIBLE THAT MR. KEPHART MADE REFERENCE TO
 DOCUMENTATION AND APPROPRIATE ACTION AND THAT THESE REMARKS COULD HAVE
 BEEN DIRECTED AS MS. HARPER'S SITUATION.  HOWEVER, IT MUST BE
 DEMONSTRATED THAT SUCH STATEMENT OR ACTION WAS MADE BECAUSE HARPER
 EXERCISED RIGHTS PROTECTED BY THE ORDER.  CF. VETERANS ADMINISTRATION,
 NORTH CHICAGO VETERANS HOSPITAL, NORTH CHICAGO, ILLINOIS, A/SLMR NO.
 1024.  ON THE BASIS OF THE RECORD, I AM CONVINCED THAT MS. HARPER'S
 PRIOR ACTIONS, IN NOT FOLLOWING THE ESTABLISHED PROCEDURE MAY HAVE
 PROMPTED SUCH A STATEMENT BY RESPONDENT, THAT ALL HER COMPLAINTS WOULD
 BE DOCUMENTED UNDER THE AGREEMENT, AND HAD NOTHING TO DO WITH THE
 DOCUMENTATION OF ANY OF HER WORK PROBLEMS.  ACCORDINGLY, I CONCLUDE THAT
 NO VIOLATION WAS PRESENT IN RESPONDENT'S STATEMENT REGARDING
 DOCUMENTATION OF MS. HARPER'S COMPLAINTS.
 
                              RECOMMENDATION
 
    IT HAVING BEEN FOUND THAT RESPONDENT DID NOT ENGAGE IN ANY CONDUCT
 VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER, IT IS RECOMMENDED THAT THE
 COMPLAINTS BE DISMISSED IN THEIR ENTIRETY.
 
                              ELI NASH, JR.
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  OCTOBER 29, 1979
 
    WASHINGTON, D.C.
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE
 
                               SERVICE SHEET
 
    "RECOMMENDED DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE
 ELI NASH, JR. WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
 
                                LINDA ENOCH
 
    LYNDA BECK FENWICK, ATTORNEY
 
    OFFICE OF DISTRICT COUNSEL
 
    VARO
 
    1400 NORTH VALLEY MILLS DRIVE
 
    WACO, TEXAS
 
    MR. JOHN MALONE
 
    CHIEF PERSONNEL OFFICER
 
    VETERANS HOSPITAL MEDICAL CENTER
 
    SHREVEPORT, LOUISIANA
 
    MR. CARL HOLT
 
    NATIONAL REPRESENTATIVE
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 
    3108 AVON DRIVE
 
    ARLINGTON, TEXAS 76015
 
    GEORGIE PARKER LUCAS, CHIEF STEWARD
 
    VETERANS HOSPITAL MEDICAL CENTER
 
    SHREVEPORT, LOUISIANA
 
    MR. KENNETH T. BLAYLOCK, PRESIDENT
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVENUE, N.W.
 
    WASHINGTON, D.C.  20005
 
    ASSISTANT DIRECTOR
 
    LABOR-MANAGEMENT RELATIONS
 
    U.S. OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET, N.W.
 
    WASHINGTON, D.C.  20415
 
    REGULAR MAIL:
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1900 "E" STREET, N.W.
 
    WASHINGTON, D.C.  20424
 
    ONE COPY TO EACH REGIONAL DIRECTOR REFORM ACT OF 1978 (92 STAT.
 1224), THE PRESENT CASE 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.
 
    /2/ ARTICLE VII, STEP 2 PROVIDES, IN PERTINENT PART THAT:  "THE
 SERVICE CHIEF SHALL ANSWER, IN WRITING, WITHIN FIVE (5) WORKDAYS.
 
    /3/ ALTHOUGH THE ISSUE OF WHETHER OR N