State of California, Department of Youth Authority (PERB 0962S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PIERCE JOHNSON, 	JR. 	AND STEVE
BOHNSTEDT,
Charging Parties,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF 	YOUTH AUTHORITY,
Respondent.
Case No. 	LA-CE-253-S
PERB Decision No. 	962-S
December 4, 	1992
Appearance: 	Pierce Johnson, 	Jr., 	on his own behalf.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by Pierce Johnson, 	Jr.
(Johnson) 	of 	a Board agent's 	dismissal 	of his 	unfair practice
charge. 	The 	Board agent dismissed 	the 	charge which 	alleged 	that
the State of California, 	Department of Youth Authority 	(State or
DYA) 	committed numerous 	acts 	of unlawful 	reprisals 	and
discrimination in violation of 	section 3519(a) 	of 	the Ralph C.
Dills Act 	(Dills Act).l
1The 	Dills Act 	is 	codified at Government Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519(a) 	states, 	in
pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
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The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the warning and dismissal 	letters, 	the 	unfair practice
charge and 	its 	attachments, 	and Johnson's 	appeal.2 The Board
affirms 	the dismissal 	on the basis 	set 	forth below.
FACTUAL 	SUMMARY
Johnson and 	Steve 	Bohnstedt 	(Bohnstedt) 	were 	employed by the
State as youth counselors 	at the Fred C. 	Nelles 	School 	for Boys.
Between the 	two 	of 	them, 	Johnson and Bohnstedt 	filed 	at 	least 	ten
grievances 	covering various 	work-related 	issues 	since
approximately June 	1990.
On March 24, 	1992, 	Johnson and Bohnstedt 	filed an unfair
practice 	charge 	against 	the 	State. 	The 	charge 	alleged that
numerous 	unlawful 	adverse 	actions 	were 	taken 	individually 	and
collectively 	against 	them.
Among these 	charges, 	Bohnstedt 	alleged that 	following an
injury resulting from an assault by a DYA ward on June 	27, 	1991,
Bohnstedt's 	supervisor 	repeatedly 	harassed 	him 	by 	interfering
with his 	timely 	receiving 	of 	medical 	and workers 	compensation
benefits.
On August 20, 	1991, 	Johnson filed an injury report
complaining of considerable 	stress. 	On September 27, 	1991,
following medical 	and psychiatric 	evaluations, 	Superintendent
Henry C. 	Vander Weide 	(Vander Weide) 	issued a memo 	instructing
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter.
2The appeal 	of 	the 	Board 	agent's 	dismissal was 	filed 	solely
by 	Johnson.
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Johnson 	to 	reduce 	the number of 	overtime hours 	he worked 	to 	a
maximum 	of 	sixty hours 	per month. 	This 	restriction would be 	in
effect 	for 	six months 	after which his 	physical 	status would be
evaluated. 	The memo stated, 	in part:
Medically, 	it 	is being recommended that you
reduce 	the 	total 	number of 	hours 	you are
currently working. 	The medical 	difficulties
you 	are 	experiencing may be 	caused by 	the
time 	you 	are 	spending 	at work beyond 	your
normal work week. 	During the months 	of 	June
1991 	you worked 	143 	1/2 	hours 	of over time,
89 	hours 	in July and 	139 	3/4 	in August.
Johnson 	claimed 	that 	the 	reduction 	in overtime 	hours
represented more than a 	50 percent 	cut 	in his 	overtime 	earnings.
He 	alleged that 	the 	order to 	reduce his 	overtime hours was 	taken
in response to 	"the volume 	of 	grievances 	filed by both 	charging
parties."
BOARD AGENT'S 	DISMISSAL
The 	Board 	agent 	found 	that 	the 	charge 	alleged unlawful
adverse 	actions 	which occurred more 	than 	six months 	prior to 	the
filing of the charge. 	The charge was 	filed on March 24, 	1992,
thus 	all 	allegations 	of 	unlawful 	conduct by the 	State 	occurring
prior to September 24, 	1991, 	were dismissed as untimely filed.3
3Dills Act section 3514.5(a) 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have the 	right 	to 	file 	an
unfair practice charge, 	except that the board
shall 	not do either of 	the 	following: 	(1)
issue 	a 	complaint 	in respect of 	any 	charge
based 	upon 	an 	alleged 	unfair practice
occurring more 	than 	six months 	prior to 	the
filing 	of 	the 	charge 	. . . .
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The 	Board 	agent 	found only Johnson's 	overtime 	reduction 	claim
timely 	filed.
The 	Board 	agent 	also 	noted 	that 	the 	State 	and 	the 	California
Correctional 	Peace Officers Association 	(CCPOA) 	were parties 	to a
collective bargaining agreement 	(CBA) 	with effective dates 	of
May 26, 	1989 through June 30, 	1991. 	The Board agent found that
under Dills Act 	section 	3514.5(a),4 and the Board's 	decision in
Lake Elsinore School 	District 	(1987) 	PERB Decision No. 	646 	(Lake
Elsinore), 	the charge must be dismissed and deferred to binding
arbitration because 	the 	grievance 	machinery 	covers 	the 	dispute
raised, 	retaliation for protected activity, 	and culminates 	in
binding 	arbitration. 	The 	conduct 	complained of by the 	charging
parties 	is 	arguably prohibited by Article V, 	section 5.03(a) 	of
the parties' 	CBA. 	Despite the 	fact that the alleged unlawful
conduct 	occurred after the 	expiration of 	the CBA, 	the 	Board 	agent
found that pursuant 	to Anaheim City 	School 	District 	(1983) 	PERB
Decision No. 	364 	(Anaheim), 	the grievance and arbitration
procedure 	survives 	the expiration of the CBA, 	thus 	requiring that
4Dills Act section 3514.5(a) 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice charge, 	except that the board
shall not do either of the following: 	. 	. 	.
(2) 	issue a complaint against conduct also
prohibited by the provisions of the agreement
between the parties 	until 	the grievance
machinery of the agreement, 	if 	it exists and
covers the matter at issue, 	has been
exhausted, 	either by 	settlement or binding
arbitration.
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the matter be deferred to the parties' 	contractual 	arbitration
process.
Finally, 	the 	Board 	agent 	concluded that 	even assuming 	the
charge 	is 	not deferrable 	to arbitration, 	Johnson 	failed to 	state
a 	prima 	facie 	violation under 	the 	standard 	established 	in Novato
Unified School District 	(1982) 	PERB Decision No. 	210. 	The Board
agent determined 	that Johnson 	failed 	to 	demonstrate 	the
"necessary connection or 	'nexus' 	between the adverse action and
the protected 	conduct."
CHARGING 	PARTY'S 	APPEAL
On appeal, 	Johnson contends 	the 	Board agent 	erred by 	failing
to 	find 	that 	the 	reduction 	in overtime 	hours 	constituted 	unlawful
retaliation 	for his 	participation 	in protected 	activity. 	Johnson
asserts 	that Vander Weide's 	reliance 	on the psychiatric
evaluation does 	not 	justify a 	reduction 	in overtime 	as 	it
recommended 	that 	a 	separate 	medical 	evaluation be 	obtained 	to
determine 	if 	a work restriction was 	necessary. 	Johnson 	further
argues 	that 	had 	the 	overtime 	reduction been validly 	imposed 	for
medical 	reasons, 	Vander Weide would have 	informed the
superintendent at the Department of Youth Authority, 	Los Angeles
Metro Parole, 	where Johnson worked an additional 	2 5 hours per
week, 	of the medical necessity to reduce his hours. 	Johnson
contends 	that Vander Weide's 	failure 	to provide 	this 	information
to 	the other DYA 	facility 	is 	evidence of 	unlawful 	motivation.
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DISCUSSION
In order to 	state 	a prima 	facie violation of 	the Dills Act 	a
charging party 	must 	allege 	and 	ultimately 	establish 	that 	the
conduct 	complained 	of 	either 	occurred 	or was 	discovered within
the 	six-month period 	immediately preceding 	the 	filing 	of 	the
charge. 	(San Dieguito Union High School 	District 	(1982) 	PERB
Decision No. 	194.)
Johnson and Bohnstedt's 	charge was 	filed on March 	24, 	1992.
Thus, 	all 	allegations of unlawful 	conduct by the 	State occurring
prior to September 24, 	1991 	are untimely and must be dismissed.
Vander Weide 	issued his 	memo 	limiting 	Johnson's 	overtime 	on
September 27, 	1991, 	within the 	six-month filing period.
Therefore, 	all allegations, 	other than Johnson's allegation
concerning the 	reduction 	in overtime hours, 	are hereby dismissed
as 	untimely 	filed.
In Lake Elsinore, 	the Board held that 	section 3541.5(a) 	of
the Educational Employment Relations Act, 	which contains 	language
identical to section 3514.5(a) 	of the Dills Act, 	established a
jurisdictional 	rule 	requiring 	that 	a 	charge 	be 	dismissed 	and
deferred to arbitration if: 	(1) 	the grievance machinery of 	the
agreement 	covers 	the matter at 	issue 	and 	culminates 	in binding
arbitration; 	and 	(2) 	the conduct alleged in the unfair practice
charge 	is 	arguably prohibited by the provisions 	of 	the 	CBA. 	PERB
Regulation 	section 	32620(b)(5)5 also requires that a 	charge be
5PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq.
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dismissed where 	the 	allegations 	are properly deferred 	to 	binding
arbitration.
Here, 	the State and CCPOA, 	the exclusive representative,
were parties 	to a CBA with effective dates 	of May 	26, 	1989
through June 30, 	1991. 	In this case, 	the parties' 	CBA contains
grievance provisions 	which 	culminate 	in binding 	arbitration.
Additionally, 	the conduct alleged in the unfair practice 	charge,
retaliation 	for protected activity, 	is 	arguably prohibited by
Article V, 	section 5.03(a) 	of the CBA, 	which parallels 	Dills Act
section 3519(a). 	Further, 	although the conduct complained of
occurred 	after 	the 	CBA 	expired, 	in Anaheim the 	Board held 	that
the 	grievance 	and arbitration provisions 	of 	a 	CBA 	survive 	the
expiration of the agreement. 	Thus, 	under the Board's decisions
in Lake 	Elsinore and Anaheim, 	this 	charge would be dismissed and
deferred 	to 	arbitration.
However, 	in Litton Financial Printing Div. 	v. 	NLRB 	(1991)
U.S. 	, 	115 L. 	Ed.2d. 	177 	[137 LRRM 2441] 	(Litton) . 	the
U.S. 	Supreme Court upheld the National 	Labor Relations 	Board's
(NLRB) 	rule that arbitration clauses 	do 	not continue 	in effect
after the 	expiration of 	a 	collective bargaining agreement, 	except
for disputes 	that 	involve 	facts 	and occurrences 	that 	arose 	before
expiration, 	or that 	involved post-expiration conduct 	that
infringes 	on rights 	accrued or vested under the 	agreement. 	In
reaching this 	conclusion, 	the 	court 	clarified 	its position in
Nolde Bros.. 	Inc. 	v. 	Bakery Workers 	(1977) 	430 U.S. 	243 	[94 LRRM
2753] 	(Nolde Bros.). 	which the PERB Board relied upon in reaching
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its 	decision 	in Anaheim that 	arbitration 	is presumed to 	continue
in effect 	after expiration of 	the 	agreement.
In Litton, 	the U.S. 	Supreme Court noted the well-established
rule 	that 	an employer commits 	an unfair 	labor practice 	if,
without bargaining to 	impasse, 	it makes 	a unilateral 	change 	in an
existing 	term or condition of 	employment. 	This 	prohibition
extends 	to 	changes 	in terms 	and 	conditions where 	an existing
agreement 	has 	expired 	and 	negotiations 	on a 	new agreement 	have
not yet been completed. 	(NLRB v. 	Katz 	(1962) 	369 	U.S. 	736 	[50
LRRM 2177].) 	The NLRB has determined, 	however, 	that under the
National 	Labor Relations Act 	(NLRA) 	there are 	certain terms 	and
conditions 	of 	employment which do 	not 	survive 	expiration of 	an
agreement because of NLRA statutory language. 	Further, 	in
Litton, 	citing Hilton-Davis Chemical Co. 	(1970) 	185 NLRB 241, 	242
[75 LRRM 1036], 	the court stated that:
[a]rbitration 	clauses 	are 	excluded 	from 	the
prohibition on unilateral 	changes, 	reasoning
that the commitment to arbitrate 	is 	a
'voluntary 	surrender of 	the 	right 	of 	final
decision which Congress 	... 	reserved to 	[the]
parties....[A]rbitration is, 	at bottom, 	a
consensual 	surrender 	of 	the 	economic 	power
which the parties 	are 	otherwise 	free to
utilize.'
In United Steelworkers 	of America v. 	Warrior & Gulf
Navigation Co. 	(1960) 	363 U.S. 	574 	[46 LRRM 2416], 	the court held
that 	"arbitration 	is 	a matter of 	contract 	and a party 	cannot be
required 	to 	submit 	to 	arbitration any dispute which he 	has 	not
agreed 	so to 	submit." 	The 	court 	further 	stated that 	"[n]o
obligation to 	arbitrate 	a 	labor dispute 	arises 	solely by
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operation of 	law. 	The 	law compels 	a party to 	submit his
grievance 	to 	arbitration only 	if 	he 	has 	contracted to do 	so."
(Gateway Coal Co. 	v. 	Mine Workers 	(1974) 	414 U.S. 	368,
[85 	LRRM 2049].)
However, 	the Court in Nolde Bros.. 	while acknowledging that
arbitration 	is 	a 	creature of 	contract 	and that 	a party 	cannot be
compelled to 	arbitrate 	in the 	absence 	of 	a 	contractual 	obligation
to do 	so, 	concluded that the arbitration clause does 	not
automatically expire. 	Because the parties 	must be aware of 	the
strong policy 	favoring private 	resolution of disputes, 	the 	court
reasoned that 	the parties' 	failure 	to 	exclude 	from arbitrability
disputes 	arising after expiration of the agreement, 	indicates 	an
intent 	to 	arbitrate 	all 	grievances 	arising out 	of 	the 	contractual
relationship.
The 	PERB Board 	in Anaheim relied on the Nolde 	Bros.
decision, 	concluding that 	arbitration 	survives 	the 	expiration of
an agreement 	unless 	the 	contract 	expressly 	or 	impliedly 	indicates
that 	the parties 	intended 	that 	the 	arbitration provision
terminate 	on expiration of 	the 	agreement. 	The Board 	stated 	in
Anaheim:
In Nolde 	Bros., 	therefore, 	the 	Supreme Court
established 	a 	rebuttable 	presumption of
arbitrability where 	the dispute 	arises 	out 	of
a 	right 	"arguably 	created" 	by the 	expired
collective agreement, 	where the parties have
agreed 	to 	submit 	contractual 	disputes 	to
arbitration, 	and where there 	is no clear
evidence 	of 	an 	intention by the parties 	that
the duty to arbitrate will 	terminate upon
expiration of 	the agreement.
(Anaheim, p. 	18.)
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In Litton	----·, 	the U.S. 	Supreme Court clarified its position in
Nolde Bros. 	stating 	that 	this presumption 	should apply 	"only
where a dispute has 	its 	real 	source 	in the 	contract." 	As 	the
court 	explained:
The object of 	an arbitration clause 	is 	to
implement a contract, 	not to transcend 	it.
Nolde Bros. does 	not 	announce 	a 	rule 	that
postexpiration 	grievances 	concerning 	terms
and 	conditions 	of 	employment 	remain
arbitrable. 	A rule of that 	sweep 	in fact
would 	contradict the 	rationale 	of 	Nolde 	Bros.
The 	Nolde Bros. presumption 	is 	limited 	to
disputes 	arising under the 	contract. 	A
postexpiration grievance 	can be 	said 	to 	arise
under the 	contract 	only where 	it 	involves
facts 	and occurrences 	that 	arose before
expiration, 	where an action taken after
expiration 	infringes 	a 	right 	that 	accrued 	or
vested under the agreement, 	or where, 	under
normal 	principles 	of 	contract 	interpretation,
the 	disputed 	contractual 	right 	survives
expiration of 	the remainder of 	the agreement.
In balancing 	the policy 	encouraging private 	resolution of
disputes 	with 	established 	contract principles 	that 	a 	party may
not be 	compelled to 	arbitrate 	a matter 	it did not 	agree 	to
arbitrate, 	the 	Board approves 	of 	the approach 	limiting 	extension
of 	the arbitration clause. 	Accordingly, 	the Board adopts 	the
court's 	reasoning 	in Litton and 	finds 	that 	arbitration 	clauses 	do
not 	continue 	in effect 	after expiration of 	a 	collective
bargaining agreement except for disputes 	that: 	(1) 	involve 	facts
and occurrences that arose before expiration; 	(2) 	involve post-
expiration 	conduct 	that 	infringes 	on 	rights 	accrued 	or vested
under the agreement; 	or 	(3) 	under normal principles 	of 	contract
interpretation, 	survive expiration of the agreement. 	Therefore,
the 	Board hereby overrules 	that portion of Anaheim which held
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that 	arbitration 	survives 	expiration of 	the 	agreement 	unless
expressly 	or 	impliedly 	excluded.
Applying these principles 	to the present 	case, 	the State's
duty to 	arbitrate Johnson's 	retaliation claim 	fails 	as 	the
adverse 	action taken by 	the 	State 	occurred 	after 	the 	expiration
of the agreement. 	Additionally, 	although Johnson retains 	a
statutory 	right 	under the 	Dills Act 	to 	be 	free 	from 	employer
retaliation, 	he obtains 	no vested right under the 	contract to be
free of 	such retaliatory action. 	Furthermore, 	the expired
agreement provides 	no 	independent 	authority which, 	under normal
principles 	of 	contract 	interpretation, 	requires 	the arbitration
provisions 	to 	continue. 	Because the 	State's duty to arbitrate
this 	matter does 	not 	continue 	in effect 	after 	expiration of 	the
agreement, 	the 	Board may not dismiss 	and defer this 	charge 	to
arbitration. 	PERB remains 	the 	appropriate 	forum 	for resolving
such disputes 	in the absence 	of 	contractual provisions 	for
binding 	arbitration.
Because this 	charge 	is 	not deferred to arbitration, 	the
Board 	then 	looks 	to 	determine whether 	the 	charging party 	has
established a prima 	facie violation of 	discrimination. 	Dills Act
section 	3519(a) 	prohibits 	reprisals 	or discrimination against 	an
employee 	for 	engaging 	in 	conduct protected by 	the 	Dills Act. 	In
order to prove an allegation of 	reprisal/discrimination, 	the
charging party bears 	the 	burden of 	showing 	that 	he 	engaged 	in
protected activity, 	that 	the 	employer knew of 	the 	employee's
participation 	in protected activity, 	and 	that 	the 	employer 	took
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adverse 	action motivated by that 	activity. 	(Novato 	Unified
School District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified
School District 	(1979) 	PERB Decision No. 	89; 	State of California
(Department of Developmental 	Services) 	(1982) 	PERB Decision
No. 	228-S; 	California State University. 	Sacramento 	(1982) 	PERB
Decision No. 	211-H.)
The party 	alleging discrimination must 	make 	a prima 	facie
showing 	of 	unlawful 	motivation by demonstrating 	a 	nexus 	between
the protected 	activity 	and the 	adverse 	action. 	Absent 	direct
evidence, 	indications of unlawful motivation have been found 	in
an employer's: 	(1) 	departure 	from established procedures 	and
standards 	when dealing with 	the 	employee 	(Santa 	Clara 	Unified
School District 	(1979) 	PERB Decision No. 	104); 	(2) 	timing of the
action 	(North 	Sacramento 	School 	District 	(1982) 	PERB 	Decision
No. 	264); 	(3) 	disparate treatment of the employee 	(State of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	(4) 	shifting justifications and cursory investigation
(State of California 	(Department of 	Parks 	and Recreation) 	(1983)
PERB Decision No. 	328-S); 	(5) 	words 	suggesting retaliatory intent
(Santa Clara Unified School District, 	supra): 	or 	(6) 	a pattern of--
antagonism 	toward 	the 	union 	(Cupertino 	Union Elementary 	School
District 	(1986) 	PERB Decision No. 	572).
A review of 	Johnson's 	allegations 	reveals 	that 	he 	failed 	to
establish 	all 	of 	the 	elements 	of 	a prima 	facie discrimination
violation. 	Johnson did participate 	in protected 	activity 	by
filing numerous 	grievances 	of which the 	State was 	clearly aware.
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Adverse 	action 	against 	Johnson 	is 	also 	established by 	the 	limit
placed on his 	overtime hours. 	However, 	Johnson failed to
establish the 	final 	element, 	that the adverse action was 	taken
because 	he 	engaged 	in protected 	activity.
If 	the 	State had departed 	from 	standard practices 	and
procedures, 	this would be evidence of unlawful motivation.
However, 	here the memo 	limiting Johnson's hours was 	issued only
after 	completion of 	medical 	and psychiatric 	evaluations 	which
were 	performed 	after 	Johnson 	filed 	an 	injury 	report 	complaining
of 	stress.
On appeal, 	Johnson argues 	that Vander Weide's 	reliance 	on
the psychiatric 	evaluation to 	support 	the 	overtime 	reduction was
improper. 	Johnson contends 	that 	it recommended a 	separate
medical 	evaluation to determine 	if 	a work restriction 	is
necessary, 	but 	that 	the psychiatric 	evaluation 	itself 	imposed 	no
work 	restriction.
Vander Weide's 	memo 	indicates 	that 	it 	is 	based on both
medical 	and psychiatric 	evaluations. 	The 	recommendations 	of 	the
medical 	evaluation were not made part of 	the record. 	However,
the psychiatric 	evaluation states, 	in part:
I 	would recommend that Mr. 	Johnson contact
his own G.P. 	and be given, 	possibly, 	some
minor tranquillizers or 	sleeping 	medication 	on
a 	short term basis 	to help him 	sleep. 	I
would 	also 	recommend 	that 	he 	decrease 	his
overtime hours 	in order to 	sleep 	and rest
properly and be under 	less 	responsibility.
Thus, 	contrary to Johnson's assertions, 	the State did
arguably 	have 	justification 	for 	limiting 	the overtime 	hours.
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Further, 	Johnson contends 	that Vander Weide's 	failure 	to
provide 	information of 	the 	overtime 	restriction to 	the 	other 	DYA
facility where Johnson worked, 	indicates 	unlawful 	motivation.
There 	is 	no basis 	for this 	contention. 	Vander Weide was properly
concerned 	about 	the 	operation of 	his 	facility and 	acted 	to 	impose
the 	overtime 	limitation only 	after 	receiving medical 	and
psychiatric 	evaluations. 	Johnson provided 	no 	evidence 	of
procedures 	that would require Vander Weide 	to 	notify 	other
facilities.
Finally, 	there 	is 	also no evidence of disparate treatment.
Johnson 	failed 	to provide 	examples 	showing 	that 	other 	employees,
in 	similar circumstances, 	did not have their overtime hours
reduced.
Accordingly, 	the charge 	fails 	to demonstrate the required
"nexus" 	and thus, 	does 	not 	state a prima 	facie violation of 	Dills
Act 	section 3519(a). 	Therefore, 	the charge must be dismissed.
ORDER
The unfair practice charge in Case No. 	LA-CE-253-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Carlyle 	joined 	in this 	Decision.
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