[ v10 p303 ]
10:0303(56)CA
The decision of the Authority follows:
10 FLRA No. 56 KANSAS ARMY NATIONAL GUARD AND NATIONAL GUARD BUREAU Respondents and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 Charging Party Case No. 7-CA-818 DECISION AND ORDER THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS. UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE STIPULATION OF FACTS AND THE PARTIES' CONTENTIONS, /1/ THE AUTHORITY FINDS: THE COMPLAINT ALLEGES THAT THE RESPONDENTS VIOLATED HEREIN 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) BY THE RESPONDENT NATIONAL GUARD BUREAU'S ACTIONS IN ADVISING THE RESPONDENT KANSAS ARMY NATIONAL GUARD TO ADHERE TO ITS DECLARATION OF NONNEGOTIABILITY DESPITE A DETERMINATION BY THE FEDERAL LABOR RELATIONS AUTHORITY /2/ THAT THE SPECIFIC CONTRACT PROPOSAL INVOLVED WAS NEGOTIABLE AND BY THE LATTER RESPONDENT'S ENSUING ACTIONS IN CONTINUING TO DECLARE THE PROPOSAL NONNEGOTIABLE. THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN TECHNICIANS EMPLOYED BY THE KANSAS ARMY NATIONAL GUARD. IN MAY 1978 THE KANSAS ARMY NATIONAL GUARD AND THE CHARGING PARTY (NAGE LOCAL R14-87) COMMENCED NEGOTIATIONS ON A COLLECTIVE BARGAINING AGREEMENT. AGREEMENT WAS EVENTUALLY REACHED ON ALL BUT ONE ISSUE (THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE) WHICH WAS REFERRED TO THE AUTHORITY IN A PETITION FOR REVIEW OF NEGOTIABILITY ISSUE. THE KANSAS ARMY NATIONAL GUARD HAD DECLARED NONNEGOTIABLE A PROPOSAL ADVANCED BY NAGE LOCAL R14-87 REGARDING THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE WHICH DID NOT SPECIFICALLY EXCLUDE FROM THE SCOPE APPEALS OF ADVERSE ACTIONS TAKEN AGAINST NATIONAL GUARD TECHNICIANS. THE AUTHORITY, IN A DECISION ISSUED JULY 31, 1980 (NOTE 1, SUPRA), FOUND THE PROPOSAL TO BE NEGOTIABLE. IN SO DOING THE AUTHORITY RELIED UPON AN EARLIER DECISION (AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669 AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA 310 (1980) IN WHICH IT HAD STATED: IN SUM, CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A NEGOTIATED GRIEVANCE PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH "UNDER THE PROVISIONS OF LAW" COULD BE COVERED UNLESS THE THE PARTIES AGREED THROUGH THE COLLECTIVE BARGAINING PROCESS TO A PROCEDURE HAVING A NARROWER COVERAGE. CONGRESS CLEARLY DID NOT, HOWEVER, MANDATE THAT, TO FALL WITHIN THE DUTY TO BARGAIN, EACH PROPOSED GRIEVANCE PROCEDURE MUST ENUMERATE ALL OR SOME OF THE MATTERS WHICH "UNDER THE PROVISIONS OF LAW" COULD NOT BE SO COVERED. SUCH A REQUIREMENT WOULD BE REDUNDANT AND WITHOUT LEGAL SIGNIFICANCE SINCE, AS INDICATED, SECTION 7121, AS EXPLAINED BY THE COMMITTEE ON CONFERENCE, ALREADY PROVIDES THAT NEGOTIATED GRIEVANCE PROCEDURES COVER, AT A MAXIMUM, MATTERS WHICH UNDER PROVISIONS OF LAW COULD BE SUBMITTED TO THE PROCEDURES. . . . IF THE AGENCY BELIEVES THAT, AS A MATTER OF LAW, CERTAIN MATTERS ARE NONGRIEVABLE AND NONARBITRABLE, GRIEVANCES WHICH MIGHT BE FILED WITH RESPECT TO THEM MAY BE CHALLENGED BY THE AGENCY AS NONGRIEVABLE OR NONARBITRABLE, IN THE CONTEXT OF SPECIFIC FACTUAL CIRCUMSTANCES. IN THIS REGARD, SECTION 7121(A) OF THE STATUTE REQUIRES THE PARTIES TO "PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY . . . ." FURTHERMORE, IF AN ARBITRATOR WERE TO RENDER AN AWARD INVOLVING THE MATTERS WHICH "UNDER THE PROVISIONS OF LAW" MAY NOT BE COVERED BY NEGOTIATED GRIEVANCE PROCEDURES, THE AGENCY WOULD HAVE AN OPPORTUNITY TO CHALLENGE THE AWARD BY FILING EXCEPTIONS THERETO WITH THE AUTHORITY PURSUANT TO SECTION 7122 OF THE STATUTE (92 STAT. 1212) ON THE BASIS THAT THE AWARD IS "CONTRARY TO ANY LAW, RULE OR REGULATION." THUS, THE AUTHORITY FOUND THE SPECIFIC PROPOSALS PRESENTED TO THEM IN THE CASES INVOLVED NEGOTIABLE WITHOUT REACHING OR RULING UPON THE MERITS OF THE ACTIVITIES' (ALL THREE INVOLVED WERE NATIONAL GUARD BUREAU ACTIVITIES) ARGUMENT THAT THE TERMS OF SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (32 U.S.C. 709(E)) RENDERED ADVERSE ACTIONS TAKEN AGAINST NATIONAL GUARD TECHNICIANS NONGRIEVABLE AND NONARBITRABLE. /3/ UPON NOTIFICATION OF THE AUTHORITY'S DECISION, AGENTS OF THE KANSAS ARMY NATIONAL GUARD CONTACTED AN AGENT OF THE NATIONAL GUARD BUREAU TO DISCUSS WHAT STEPS SHOULD BE TAKEN IN LIGHT OF THE DECISION. THE LATTER, EXPRESSING THE VIEW THAT THE PROVISIONS OF SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 WERE NOT SUPERSEDED BY THE STATUTE, ADVISED THE FORMER TO MAINTAIN THE POSITION THAT NAGE LOCAL R14-87'S CONTRACT PROPOSAL WAS CONTRARY TO LAW, AND, HENCE, NONNEGOTIABLE DESPITE THE AUTHORITY'S DECISION. WHEN THE KANSAS ARMY NATIONAL GUARD MET WITH NAGE LOCAL R14-87 ON OR ABOUT SEPTEMBER 30, 1980 TO CONDUCT FURTHER NEGOTIATIONS ON THE GRIEVANCE PROCEDURE TO BE CONTAINED IN THE PARTIES' CONTRACT, THIS, IN FACT, WAS THE POSITION TAKEN. NAGE LOCAL R14-87 REITERATED ITS PROPOSAL THAT THE LANGUAGE WHICH HAD BEEN FOUND NEGOTIABLE BY THE AUTHORITY BE INCORPORATED IN THE COLLECTIVE BARGAINING AGREEMENT. IN RESPONSE TO A PROPOSAL TO THIS EFFECT, THE KANSAS ARMY NATIONAL GUARD ISSUED A WRITTEN DECLARATION OF NONNEGOTIABILITY DATED OCTOBER 1, 1980. THE RESPONDENTS ARGUE THAT, INASMUCH AS THE AUTHORITY'S DECISION ON THE NEGOTIABILITY OF THE NAGE LOCAL R14-87 PROPOSAL REGARDING THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE WAS LEGALLY ERRONEOUS, THEIR ACTIONS DID NOT VIOLATE THE STATUTE. ADDITIONALLY, THE RESPONDENTS MAINTAIN THAT, INASMUCH AS, PURSUANT TO SECTION 7123 OF THE STATUTE, /4/ THEY HAD SIXTY DAYS FROM THE ISSUANCE OF THE DECISION TO INSTITUTE ACTION FOR JUDICIAL REVIEW, THERE WAS NO OBLIGATION TO NEGOTIATE OVER THE MATTER DURING THAT TIME FRAME AND THEY HAD ELECTED NOT TO DO SO. /5/ THE GENERAL COUNSEL AND NAGE LOCAL R14-87 CONTEND THAT THE RESPONDENT'S ACTIONS VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE. THE AUTHORITY FINDS, BASED ON THE REASONS EXPRESSED IN DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100 (1981) APPEAL DOCKETED, NO. 81-2244, (10TH CIR. NOV. 5, 1981), THAT THE KANSAS AIR NATIONAL GUARD'S ACTION CONSTITUTED A REFUSAL TO NEGOTIATE IN GOOD FAITH AND VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE. /6/ HOWEVER, INASMUCH AS THE STIPULATION INDICATES THAT THE NATIONAL GUARD BUREAU'S ROLE IN THE MATTER WAS THAT OF ADVISING THE KANSAS ARMY NATIONAL GUARD TO TAKE THE COURSE OF ACTION WHICH IT DID AS OPPOSED TO DIRECTING THE LATTER TO TAKE SUCH ACTION, IT HAS NOT BEEN ESTABLISHED THAT THE NATIONAL GUARD BUREAU HAD ANY ACTUAL RESPONSIBILITY FOR THE REFUSAL TO NEGOTIATE WHICH OCCURRED. CF. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, REGION VI, AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, GALVESTON, TEXAS DISTRICT, 10 FLRA NO. 9 (1982), WHEREIN A VIOLATION WAS FOUND ONLY AGAINST THE REGION, BASED UPON THE REGION'S DIRECTION TO THE DISTRICT TO CHANGE A POLICY WITH REGARD TO REPORTING MILEAGE. THEREFORE, THE COMPLAINT IS DISMISSED INSOFAR AS IT ALLEGES THAT THE NATIONAL GUARD BUREAU VIOLATED THE STATUTE. IN FINDING THAT THE KANSAS ARMY NATIONAL GUARD VIOLATED THE STATUTE, THE AUTHORITY REJECTS THE ARGUMENT THAT, DURING THE PERIOD INVOLVED, IT WAS INSULATED FROM ANY OBLIGATION TO BARGAIN BY VIRTUE OF THE RUNNING OF A PERIOD IN WHICH TO FILE FOR COURT REVIEW OF THE AUTHORITY'S DECISION. SECTION 7123(C) OF THE STATUTE SPECIFICALLY PROVIDES THAT, "THE FILING OF A PETITION UNDER SUBSECTION (A) OR (B) OF THIS SECTION SHALL NOT OPERATE AS A STAY OF THE AUTHORITY'S ORDER UNLESS THE COURT SPECIFICALLY ORDERS THE STAY." MOREOVER, THE RESPONDENT'S SUGGESTION THAT THE ACTION IN THIS REGARD WAS AN ELECTION NOT TO BARGAIN DURING THE TIME FRAME ALLOWED FOR FILING OF A PETITION FOR JUDICIAL REVIEW IS INCONSISTENT WITH THE STIPULATION AND ACCOMPANYING EXHIBITS. SUCH EXHIBITS ESTABLISH THAT THE KANSAS ARMY NATIONAL GUARD MET "TO CONDUCT FURTHER NEGOTIATIONS ON THE GRIEVANCE PROCEDURE . . . IN LIGHT OF THE AUTHORITY'S DECISION IN 3 FLRA (852)" AND ISSUED A DECLARATION OF NONNEGOTIABILITY WHICH WAS EXPRESSLY BOTTOMED ON AN ASSERTION THAT THE PROPOSAL WHICH NAGE LOCAL R14-87 PRESENTED TO IT CONFLICTED WITH LAW AND IMPLEMENTING REGULATION. ORDER PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, IT IS HEREBY ORDERED THAT THE KANSAS ARMY NATIONAL GUARD SHALL: 1. CEASE AND DESIST FROM: (A) DECLARING NONNEGOTIABLE A PROPOSAL PERTAINING TO THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE MADE BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87, WHICH HAS PREVIOUSLY BEEN DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY. (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE: (A) UPON REQUEST OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87, NEGOTIATE CONCERNING THE PROPOSAL PERTAINING TO THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE WHICH WAS DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND STATE OF KANSAS ARMY NATIONAL GUARD, CASE NO. O-NG-12; NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R12-130 AND R12-145 AND STATE OF NEVADA NATIONAL GUARD, CASE NO. O-NG-15; AND ASSOCIATION OF CIVILIAN TECHNICIANS, NORTH AND SOUTH ALABAMA CHAPTERS AND STATE OF ALABAMA NATIONAL GUARD, CASE NO. O-NG-84, 3 FLRA 852 (1980). (B) POST AT THE FACILITIES OF THE KANSAS ARMY NATIONAL GUARD 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 AN AUTHORIZED OFFICIAL, AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE KANSAS ARMY NATIONAL GUARD SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH 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 7, 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 COMPLAINT INSOFAR AS IT ALLEGES A VIOLATION OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY RESPONDENT NATIONAL GUARD BUREAU BE, AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982 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 DECLARE NONNEGOTIABLE A PROPOSAL PERTAINING TO THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE MADE BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87, WHICH HAS PREVIOUSLY BEEN DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY. WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN, OR COERCE OR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL, UPON REQUEST OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87, NEGOTIATE CONCERNING THE PROPOSAL PERTAINING TO THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE WHICH WAS DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND STATE OF KANSAS ARMY NATIONAL GUARD, CASE NO. O-NG-12; NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R12-130 AND R12-145 AND STATE OF NEVADA NATIONAL GUARD, CASE NO. O-NG-15; AND ASSOCIATION OF CIVILIAN TECHNICIANS, NORTH AND SOUTH ALABAMA CHAPTERS AND STATE OF ALABAMA NATIONAL GUARD, CASE NO. O-NG-84, 3 FLRA 852 (1980). (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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, REGION 7, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1531 STOUT STREET, SUITE 301, DENVER, CO 80202 AND WHOSE TELEPHONE NUMBER IS: (816) 374-2199. --------------- FOOTNOTES$ --------------- /1/ THE RESPONDENTS FILED A MOTION TO DISREGARD THE BRIEFS FILED BY THE CHARGING PARTY AND THE GENERAL COUNSEL CONTENDING THAT THEY WERE UNTIMELY. THEY WERE, IN FACT, TIMELY FILED AND THE RESPONDENT'S MOTION IS HEREBY DENIED. /2/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND STATE OF KANSAS ARMY NATIONAL GUARD, CASE NO. O-NG-12; NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R12-130 AND R12-145 AND STATE OF NEVADA NATIONAL GUARD, CASE NO. O-NG-15; AND ASSOCIATION OF CIVILIAN TECHNICIANS, NORTH AND SOUTH ALABAMA CHAPTERS AND STATE OF ALABAMA NATIONAL GUARD, CASE NO. O-NG-84, 3 FLRA 852 (1980). /3/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25 (1981), APPEAL DOCKETED NO. 81-7231 (9TH CIR. APRIL 17, 1981); BUT SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3486 AND NEW JERSEY AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP, 5 FLRA NO. 26 (1981), REVERSED SUB NOM. NEW JERSEY AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP AND DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 677 F.2D 276 (3RD CIR. 1982), PETITION FOR CERT. FILED AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3486 V. NEW JERSEY AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP AND DEPARTMENT OF DEFENSE, (U.S. AUG. 9, 1982), (NO. 82-224). /4/ SECTION 7123 PROVIDES, IN PERTINENT PART: SEC. 7123. JUDICIAL REVIEW; ENFORCEMENT (A) ANY PERSON AGGRIEVED BY ANY FINAL ORDER OF THE AUTHORITY OTHER THAN AN ORDER UNDER-- (1) SECTION 7122 OF THIS TITLE (INVOLVING AN AWARD BY AN ARBITRATOR), UNLESS THE ORDER INVOLVES AN UNFAIR LABOR PRACTICE UNDER SECTION 7118 OF THIS TITLE, OR (2) SECTION 7112 OF THIS TITLE (INVOLVING AN APPROPRIATE UNIT DETERMINATION), MAY, DURING THE 60-DAY PERIOD BEGINNING ON THE DATE OF WHICH THE ORDER WAS ISSUED, INSTITUTE AN ACTION FOR JUDICIAL REVIEW OF THE AUTHORITY'S ORDER IN THE UNITED STATES COURT OF APPEALS IN THE CIRCUIT IN WHICH THE PERSON RESIDES OR TRANSACTS BUSINESS OR IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. /5/ THE RESPONDENTS CONSTRUE THIS TIME FRAME AS RUNNING FROM JULY 31, 1980 THROUGH OCTOBER 2, 1980. /6/ BASED ON THE ABOVE OUTCOME, WHICH FULLY REMEDIES THE VIOLATION FOUND HEREIN, THE AUTHORITY FINDS IT UNNECESSARY TO DECIDE WHETHER SUCH CONDUCT ALSO VIOLATED SECTION 7116(A)(8).