17:0446(72)CO - AFGE and SSA -- 1985 FLRAdec CO
[ v17 p446 ]
17:0446(72)CO
The decision of the Authority follows:
17 FLRA No. 72
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Respondent
and
SOCIAL SECURITY ADMINISTRATION
Charging Party
Case No. 3-CO-20003
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party and the General Counsel filed exceptions to the Judge's
Decision, and the Respondent filed an opposition to the 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 recommendation, only to the extent
consistent herewith.
The Judge concluded that the Respondent, American Federation of
Government Employees, AFL-CIO (AFGE), did not violate section 7116(b)(1)
and (8) of the Statute /1/ by charging non-member employees disparate
fees to participate in a class action law suit under the Back Pay Act.
In reaching this conclusion, the Judge found that section 7114(a)(1) of
the Statute /2/ obliges an exclusive representative to adhere to a
standard of fair representation only in those proceedings which are in
the sole control of the exclusive representative by virtue of its
certification, but does not impose such obligations in those proceedings
which are available to employees in general, and are supplementary to,
but not a substitute for, proceedings which are the sole prerogative of
the exclusive representative. The Authority does not agree.
The duty of fair representation is not restricted to those
proceedings under the sole control of the exclusive representative as a
consequence of its certification. Rather, when an exclusive
representative decides to represent unit employees in any matter which
affects their conditions of employment, it has the duty under section
7114 of the Statute to represent unit employees fairly, and may not
discriminate with regard to that representation on the basis of union
membership. National Treasury Employees Union and National Treasury
Employees Union Chapter, 121, 16 FLRA No. 102 (1984), petition for
review filed sub nom. National Treasury Employees Union v. FLRA, No.
85-1053 (D.C. Cir., Jan. 25, 1985); National Treasury Employees Union,
10 FLRA 519 (1982), aff'd, 721 F.2d 1402 (D.C. Cir. 1983) (encompassed
within the union's duty under section 7114(a)(1) is the furnishing of
the services of an attorney on a non-discriminatory basis in removal
actions, both within the Agency procedures as well as before the Merit
Systems Protection Board). Within that duty is the obligation not to
discriminate on the basis of union membership concerning the fees to be
charged for the attorney's services in representing unit employees on
matters affecting their conditions of employment. /3/
Accordingly, in the instant case, the Authority finds that Respondent
AFGE, by discriminating between members and nonmembers in assessing
attorneys' fees for unit employees participating in a class action law
suit seeking to recover overtime pay, failed to meet its obligations
under section 7114(a)(1) of the Statute and thereby violated section
7116(b)(1) and (8) of the Statute.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the American Federation of Government Employees, AFL-CIO shall:
1. Cease and desist from:
(a) Assessing disparate contingency fees for attorney representation
in a class action law suit involving entitlement to overtime pay based
upon membership or nonmembership in the American Federation of
Government Employees, AFL-CIO.
(b) Interfering with, restraining, or coercing unit employees in the
exercise of their right to refrain from joining, freely and without fear
of penalty or reprisal, the American Federation of Government Employees,
AFL-CIO, or any other labor organization.
(c) In any like or related manner interfering with, restraining, or
coercing unit employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Represent all employees in units of exclusive recognition without
discrimination and without regard to membership in the American
Federation of Government Employees, AFL-CIO.
(b) Rescind the conditional contingency fee arrangement imposed upon
employees seeking to join the class action law suit prosecuted by
Attorney Banov concerning the appropriate calculation of overtime pay
for employees in the unit exclusively represented by the American
Federation of Government Employees, AFL-CIO, and make whole any employee
in the bargaining unit for any loss of money suffered as a consequence
of the conditional contingency fee arrangement.
(c) Post at its business offices and its normal meeting places,
including all places where notices to members and employees of the
Social Security Administration are customarily posted, 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
President of the American Federation of Government Employees, AFL-CIO,
or his designee, and they shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all places
where notices to members and to other employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(d) Submit appropriate signed copies of such Notices to the
Administrator of the Social Security Administration, Baltimore,
Maryland, for posting in conspicuous places where the unit employees are
located, where they shall be maintained for a period of 60 consecutive
days from the date of posting.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of 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., April 15, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 17
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT assess disparate contingency fees for attorney
representation in a class action law suit involving entitlement to
overtime pay based upon membership or nonmembership in the American
Federation of Government Employees, AFL-CIO. WE WILL NOT interfere
with, restrain, or coerce unit employees in the exercise of their right
to refrain from joining, freely and without fear of penalty or reprisal,
the American Federation of Government Employees, AFL-CIO. WE WILL NOT
in any like or related manner interfere with, restrain, or coerce unit
employees in the exercise of their rights assured by the Statute. WE
WILL represent all employees in units of exclusive recognition without
discrimination and without regard to membership in the American
Federation of Government Employees, AFL-CIO. WE WILL rescind the
conditional contingency fee arrangement imposed upon employees seeking
to join the class action law suit prosecuted by Attorney Banov
concerning the appropriate calculation of overtime pay for employees in
the unit we exclusively represent, and make whole any employee in the
bargaining unit for any loss of money suffered as a consequence of the
conditional contingency fee arrangement.
(Union)
Dated: By: (Signature) (Title) 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 III, Federal
Labor Relations Authority, whose address is: 1118 18th Street, NW.,
Suite 700, Washington, D.C. 20033-0758, and whose telephone number is
(202) 653-8456.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CO-20003
Mark D. Roth, Esquire
For the Respondent
Sharon Prost, Esquire
For the General Counsel
Irving L. Becker, Esquire
For the Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5
U.S.C.Section 7101 et seq., and the Rules and Regulations issued
thereunder, Fed. Reg. Vol. 45, No. 12, January 17, 1980 and Vol. 46, No.
154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to a charge filed on December 1, 1981, by the Social
Security Administration (hereinafter called the SSA or Charging Party),
a Complaint and Notice of Hearing was issued on March 22, 1982, by the
Regional Director for Region III, Federal Labor Relations Authority,
Washington, D.C. The Complaint alleges that the American Federation of
Government Employees, AFL-CIO (hereinafter called the AFGE, or Union or
Respondent), violated Sections 7116(b)(1) and (8) of the Federal Service
Labor-Management Relations Statute (hereinafter called the Statute or
Act), by virtue of its actions in failing to accord equal representation
in a class action law suit to unit employees who are not members of the
Union. /4/
A hearing was held in the captioned matter on May 12, 1982, in
Washington, D.C. 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. The Respondent and the Charging
Party submitted post-hearing briefs on June 25 and June 23, 1982,
respectively, which have been duly considered along with the General
Counsel's closing argument made on the record. /5/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
Since 1979, the Union has been the exclusive bargaining
representative in a consolidated unit of SSA employees. Prior to that
time the Union had been the exclusive bargaining agent of various
separate groups of SSA employees located throughout the United States.
Local 1923 of the Union services the unit employees working at the SSA
Baltimore, Maryland headquarters.
In 1978, a question arose with respect to whether or not the SSA was
paying the proper night differential to Baltimore, Maryland, unit
employees working overtime in the electronic data processing area. /6/
Upon discovering the alleged underpayment, many of the unit employees
filed grievances, both individually and through the Union, under the
grievance procedure of the collective bargaining contract then in
effect. At the time of the hearing the grievances had not as yet been
finally resolved or processed to arbitration. /7/
Beginning in the spring of 1978, Union and Management representatives
held numerous meetings wherein the mechanics for processing the
grievances and/or back pay claims of the affected employees were
discussed. Additionally, as a result of the meetings and discussions a
ruling on the matter was sought from the Comptroller General and
subsequently a task force was established for purposes of processing
both the background records and back pay claims of the numerous
employees involved.
Not being satisfied with the progress of the SSA task force in
settling the employees' night pay differential grievances and/or claims,
Mr. Harold Roof, President of Local 1923, who had been representing the
employees in the discussions of their pending night pay differential
grievances, contacted Mr. Alan Banov, a private attorney in the latter
part of 1980, concerning the possibility of filing a civil action in
U.S. District Court for purposes of obtaining the back pay underlying
the pending grievances. /8/
Although not entirely clear from the record, it appears that Mr.
Banov and Mr. Roof subsequently reached an agreement whereby Mr. Banov
would represent the SSA unit employees in a class action suit against
SSA for the night pay differential allegedly due them. According to the
testimony of Mr. Banov, it was his original intention to recoup his
expenses and fee for the law suit solely from the Government.
Furthermore, according to the testimony of Mr. Banov, prior to November
1981, when a "consent form" was published in the "Government Standard"
an official AFGE publication, /9/ he had been circulating a variety of
consent forms which made no mention whatsoever, or provided for,
contingency fees if he was successful in the law suit. /10/
Thereafter, at a date not set forth in the record, Mr. Roof contacted
Mr. James Rosa, AFGE General Counsel, concerning whether or not the
Union would be amenable to making a contribution from the Union's Legal
Rights Fund to the class action suit being handled by Mr. Banov. The
Union concluded that the suit was a worthwhile endeavor and voted to
give Mr. Banov a $5,000 retainer from monies in the Legal Rights Fund.
The November 1981, issue of The Government Standard, an official
publication of the AFGE carried the following article on page 4:
NIGHT DIFFERENTIAL SUIT MAY AFFECT 10,000 WORKERS
Over 10,000 government employees may be due to recover money
owed them for night work which they regularly performed during
scheduled overtime in the last six years. AFGE is attempting to
recover the money for its members through a class action suit
filed in U.S. District Court for the District of Columbia.
The night pay differential suit was originally filed for SSA,
DHS and Education employees, however, it is now open for all AFGE
members who believe they qualify for the money under class action
status. Washington attorney Alan Banov has been retained by AFGE
to handle the case called Greenfield v. U.S.A.
Any AFGE member who believes he or she is owed money because
the government did not pay a 10 percent differential for work
performed between 6 p.m. and 6 a.m. should complete the form at
the right.
The form appearing at the right of the article entitled Consent To
Representation By Law Offices Of Alan Banov In Claiming Backpay From The
U.S. For Its Failure To Pay Night Pay Differential For Night Work
Performed On Overtime states in paragraph 4 as follows:
I agree to pay Mr. Banov 5% of any recovery if I am an AFGE
member now, or 10% if I am a non-member.
With respect to the five and ten percent contingency fee differential
assessed to members and non-members of the AFGE, respectively, on the
consent form, both Mr. Banov and Mr. Rosa, in their respective
testimony, made it clear that the reason for charging different
contingency fees was the fact that the Union Legal Rights Fund was
supported by dues paying members of the AFGE and that to charge the same
contingency fees to members and non-members of the AFGE alike, would
result in the dues paying members paying a higher cost of the law suit
since the $5,000 retainer paid Mr. Banov came from the AFGE members
prior dues payments.
Beginning on or about March 26, 1981, Mr. Banov wrote a number of
letters to SSA wherein he urged the SSA to pay the night differential
back pay claims filed by its employees. The March 26, 1981, letter made
it clear that in "cooperation with Locals 1923 and 1760, AFGE," Mr.
Banov was representing SSA's former and present employees. In a follow
up May 11, 1981, letter in response to an SSA April 29, 1981, letter,
Mr. Banov agreed to a meeting with SSA officials to discuss the pending
night differential pay claims and requested that "Mr. Harold Roof and/or
Elaine Minnick of Local 1923" be present at the meeting. In a
subsequent letter dated June 17, 1981, wherein the results of the
scheduled meeting were discussed, Mr. Banov demanded that in the future
whenever SSA deemed it necessary to interview any individual claimant
with respect to a back pay claim, that he be allowed the opportunity "to
be present or to send an AFGE representative in his place."
Other correspondence in the record from Mr. Banov to the SSA
indicates that copies of such correspondence were sent to Mr. James Rosa
and Mr. Harold Roof of the AFGE.
In the summer of 1981, Mr. Banov filed a class action suit against
the SSA seeking the payment of the employees night differential pay
claims.
Discussion and Conclusions
Inasmuch as the facts do not appear to be in dispute, the paramount
issue to be resolved is whether or not Mr. Banov's action in charging
different or higher contingency fees to non-union unit employees denied
equal representation to such employees in violation of Section
7116(b)(1) and (8) of the Statute. /11/
Respondent, which would answer the question in the negative, takes
the position that inasmuch as it is not the exclusive representative of
employees in court actions, as opposed to grievance matters which could
terminate in arbitration at the sole option of the Union, it was under
no duty to accord equal representation, i.e., identical contingency
fees, to union and non-union unit members alike. In support of its
position the Union relies primarily on the decision of the Ninth Circuit
in Archer v. Airline Pilots Assn., 102 LRRM 2827; and District Court
decisions in Lacy v. Local 287, UAW, 102 LRRM 2847; Steele v. Brewery
Workers Local 1162, 102 LRRM 2459, 2485; Hawkins v. Babcock & Wilcox
Co., 105 LRRM 3438.
Respondent acknowledges, however, "that where a union has a right,
derived from law, to represent the employees exclusively in a certain
class of cases-- i.e., grievances . . . this right imposes a correlative
duty not to engage in conduct which is arbitrary, discriminatory, or in
bad faith."
The General Counsel and the Charging Party, on the other hand, would
answer the question in the affirmative, citing in support of their
position a number of NLRB cases which were based on the Supreme Court's
decision in Vaca v. Sipes, 386 U.S. 171, and the Authority's decisions
in NTEU Chapter 202, 1 FLRA 104 and FASTA, NAGE, 2 FLRA 103.
It is well established and conceded by the Respondent, that where a
union is the exclusive representative and has the sole access to
arbitration by virtue of the terms of the collective bargaining
agreement, the union is under an obligation to accord equal
representation to all unit members irrespective of union membership or
allegiance. Vaca v. Sipes, supra; Tidewater Virginia Federal
Employees, MTC, IAM Local No. 441 and Douglas Edwards Burns and Norfolk
Naval Shipyard, 8 FLRA 47; Machinist Local 697, 91 LRRM 1529.
However, as noted by the Respondent, where the union, irrespective of
its status as exclusive representative, does not have sole or exclusive
control over the access to a particular forum or procedure through which
an employee seeks redress, the union does not violate its statutory duty
of fair representation when it fails to assist or process employees
grievances in such forum. Archer v. Airline Pilots Association, 102
LRRM 2829; International Brotherhood of Workers v. Foust, 442 U.S. 42,
101 LRRM 2365.
With the above principles of law in mind, I now turn to the
application of the facts in the instant case to the existing case law.
The record evidence establishes, and I find, that Mr. Banov was
indeed an agent of the Respondent Union and that in such circumstances
the Respondent Union was responsible for his actions. Thus, it is noted
that Mr. Banov was retained by the Respondent Union to file a class
action law suit on behalf of the unit employees represented by the
Respondent because the Union hoped the suit would speed up the
recoupment of the night pay differential allegedly owing to a number of
such unit employees. Thereafter, the arrangement was published in the
Union's newspaper along with a "consent to representation" form which
provided for different contingency fees, depending on whether or not the
affected unit employee was a member of the Union. Both Mr. Banov and
Mr. Rosa acknowledged that the different contingency fee schedule was a
product of their joint thinking and was an attempt to prevent Union
members being assessed a greater amount of money than their non-union
counterparts. If the contingency fees had been identical, Mr. Rosa and
Mr. Banov were of the opinion that Union members would have been paying
more money towards the cost of the class action suit, since the $5,000
retainer came indirectly in part from periodic union dues paid by the
Union members. Additionally, the record makes it clear that Mr. Banov
was acting in behalf of, and in conjunction with, the Union with respect
to the legal strategy and preparation of the class action law suit. In
fact Mr. Banov informed the SSA that there should be no further
discussions with individual employees concerning the night pay
differential without either his or the Union's presence. Finally, Mr.
Banov acknowledged that he met on a number of occasions with the Union
representatives for purposes of discussing the status of the case and
strategy.
Following the retention of Mr. Banov as its agent in the class action
suit, the Union for all intents and purposes, was in the posture of
attacking the SSA night differential pay problem on two fronts, i.e.,
grievance machinery and class action law suit.
Inasmuch as the collective bargaining agreement in effect gave the
Union the sole access to arbitration, the final step in the grievance
procedure, it and it alone, controlled the destiny or fate of the
affected employees and thus according to Vaca v. Sipes and International
Brotherhood of Workers v. Foust, supra, imposed upon the Union the duty
and/or responsibility of equal representation of all unit employees,
irrespective of union membership.
However, such was not the case with regard to the class action law
suit since employees could join the class action law suit or seek their
own counsel in a separate law suit without the permission or blessing of
the Union.
In view of the foregoing conclusions, the question remaining for
consideration or decision, is whether the Union's institution of the
class action law suit was so integrally related to the pending
grievances as to be part and parcel of such action, and thereby imposing
upon the Union the duty of equal or fair representation.
Had the suit been a substitute for arbitration, which was in the sole
control of the Union, then it would appear that the question should be
answered in the affirmative, since the Union would then be precluding
unit non-union members from equal representation. However, the record
facts do not support such a conclusion. In this respect, the sketchy
facts in the record indicate that on the basis of the Comptroller's
decision, there was no dispute as to the merits of the grievances
concerning the liability of SSA for the night differential pay. It was
only the amount, if any, due the employees which remained to be
computed. To this end the parties had mutually agreed on a task force
to investigate the facts underlying each and every claim. In such
circumstances, until the research and/or investigation of the many many
claims had been completed, and a possible dispute arose, there would
appear to be no need for invoking arbitration. Accordingly, it appears
highly unlikely that the class action law suit was intended to be a
substitute for arbitration. Rather, it appears that such action was
merely a vehicle for prodding the SSA to speed up action on the pending
night differential pay claims which had been filed by both the Union and
individual employees as grievances. /12/
In conclusion, I find that it is only those proceedings that are in
the sole control of the Union by virtue of its certification that impose
upon the Union the duty of fair representation. To the extent that a
Union opts to utilize other routes which are open to all employees and
not within its sole control, as a supplement, but not a substitute, for
pending grievance actions, as here, then the Union is not obligated to
accord equal representation to all employees, irrespective of membership
in the Union.
Accordingly, I find that the class action suit herein constitutes a
benefit of union membership as opposed to a right flowing from the
Union's exclusive status as the collective bargaining representative,
and conclude that under the circumstances the Union did not deny fair
representation to the non-union unit employees by retaining an attorney
to file a class action law suit and allowing the attorney to charge
different contingent fees depending on whether or not the unit employee
was a member of the Union.
In view of the above findings and conclusions, it is hereby
recommended that the Complaint be dismissed in its entirety.
BURTON S. STERNBURG
Administrative Law Judge
Dated: September 16, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(b) provides in pertinent part:
Sec. 7116. Unfair labor practices
. . . .
(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ Section 7114(a)(1) provides:
Sec. 7114. Representation rights and duties
(a)(1) A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements covering, all employees in the
unit. An exclusive representative is responsible for representing
the interests of all employees in the unit it represents without
discrimination and without regard to labor organization
membership.
/3/ Compare, American Federation of Government Employees, Local 1778,
AFL-CIO, 10 FLRA 346, 349 (1982) (wherein the Authority dismissed
several alleged violations of section 7116(b)(8) of the Statute, finding
that the General Counsel had failed to meet the burden of proving that
the union had discriminated against nonmember unit employees with
workmen's compensation claims since unrebutted testimony indicated that
all employees with such claims were required to pay their own attorneys'
fees when claims were appealed beyond the Activity's jurisdiction).
/4/ Specifically, the complaint is grounded on the alleged action of
the Union in retaining an attorney to file a class action suit and
allowing the attorney to charge unit employees different contingent fees
based solely upon whether they were members or non-members of the Union.
/5/ In the absence of any objection, the Union's Motion of May 26,
1982, to make three corrections in the transcript, should be, and hereby
is, granted.
/6/ The SSA was then paying employees who worked overtime 10% night
differential pay based on the regular hourly rate rather than on the
time and one-half overtime rate.
/7/ The collective bargaining agreement provides that arbitration,
the final step in the grievance procedure, "may only be invoked by the
Union."
/8/ Other than possibly speeding up the disposition or resolution of
the back pay claims, the record fails to set forth any other advantages
that may inure to the unit employees by joining in the suit rather than
awaiting the outcome of the task force set up to determine SSA's back
pay liability to the individual employees.
/9/ The circumstances surrounding this consent form will be discussed
infra.
/10/ Mr. Banov testified that some 900 employees had signed consent
forms which did not provide for contingency fees.
/11/ To the extent that Respondent challenges the Charging Party's
standing to file the instant unfair labor practice, it is concluded that
the Charging Party indeed has such standing. National Treasury
Employees Union, 1 FLRA No. 104.
/12/ Moreover, it should be noted that the record does not indicate
that any of the employees involved in the night pay differential
grievances will suffer any financial harm by not being a party to the
class action law suit. It is possible that the back pay claims might be
subject to a statute of limitations and that the filing of the class
action law suit tolls any possible statute of limitations with respect
to certain claims which might become stale during a protracted
investigation of the grievances by the SSA task force. However, neither
the General Counsel nor the Charging Party have elaborated or mentioned
this aspect of the class action law suit, nor have they shown the why or
wherefor of the class action law suit, or how its existence impacts upon
the rights of individual employees to have their respective grievances
processed by their exclusive representative in a non-discriminatory
manner.