CWI of Maryland, Inc.

National Labor Relations Board - Board Decisions

May 18, 1998

325 N.L.R.B. 791 (N.L.R.B. 1998)

791
325 NLRB No. 148
CWI OF MARYLAND, INC.
1 The Respondent also filed a motion to strike the General Coun-
sel’s brief and to sanction counsel for the General Counsel for as-
sertedly engaging in a scurrilous attack on the judge. We find no
merit in this contention, and we therefore deny the motion.
2 Member Hurtgen disavows the judge’s implication that the Gen-
eral Counsel has established the element of animus in support of a
prima facie showing that the Respondent discharged Simpson for
protected concerted activity. The judge relied on antiunion animus
by the Respondent in a prior proceeding, CWI of Maryland, Inc.,
321 NLRB 698 (1996), not animus directed at protected concerted
activity that is not union activity. It does not necessarily follow that
a respondent who retaliates against union activity is predisposed to
interfere with the exercise of nonunion activities protected by Sec.
7 as well.
CWI of Maryland, Inc. and Drivers, Chauffeurs,
Warehousemen and Helpers Local Union #639,
a/w International Brotherhood of Teamsters,
AFL–CIO and Oren L. Simpson. Cases 5–CA–
25971 and 5–CA–26514
May 18, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On December 19, 1997, Administrative Law Judge
James L. Rose issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Ronald Broun, Esq., for the General Counsel.
Joel I. Keiler, Esq., of Reston, Virginia, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Washington, D.C., on September 29
and 30, 1997, on the General Counsel’s complaint which al-
leged that the Respondent discharged two individuals in vio-
lation of the National Labor Relations Act (the Act) and
committed a violation of Section 8(a)(1).
The Respondent generally denied that it committed any
violations of the Act and affirmatively contends the two indi-
viduals were discharged for cause.
On the record as a whole, including my observation of the
witnesses, briefs and arguments of counsel, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Maryland corporation engaged in the
business of transporting refuse from Washington, D.C., to
landfills in Virginia, during the course of which business it
annually performs services valued in excess of $50,000 for
Browning Ferris Industries (BFI), an enterprise engaged in
interstate commerce and over which the Board has asserted
jurisdiction on a direct basis. It is admitted, and I conclude,
that the Respondent is an employer engaged in interstate
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Drivers, Chauffeurs, Warehousemen and Helpers Local
Union #639, a/w International Brotherhood of Teamsters,
AFL–CIO (the Union) is admitted to be, and I find is, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
By way of background, the Union began an organizational
campaign among the Respondent’s employees in September
1994, during which the Respondent was found to have en-
gaged in numerous unfair labor practices, including interro-
gation, threats, surveillance, the discharge of one employee,
and the constructive discharge of the entire bargaining unit
because of their union activity. The Board ordered the Re-
spondent to cease such activity, revoke its move of the driv-
ers’ reporting site, make them whole and to recognize and
bargain on request with the Union. CWI of Maryland, Inc.,
321 NLRB 698 (1996), enfd. in part 127 F.3d 319 (4th Cir.
1997). Only the single discharge was not enforced. These
consolidated cases involve subsequent events.
Daren Boran was hired in June 1994 as a full-time driver,
hauling refuse from a transfer station in Washington to a
landfill in Virginia, a trip of about 150 miles each way. He
signed an authorization card for the Union in September and
in November asked Transportation Manager Dino Sawyer go
to part time, apparently working only Saturdays. In late De-
cember he asked Sawyer to return to full-time employment,
and Sawyer agreed, stating that ‘‘they were opening a drop
lot’’ in Virginia which would be closer for him.
After returning as a full-time driver in January 1995, Saw-
yer told Boran that he heard Boran had signed an authoriza-
tion card, a fact which Boran confirmed. According to
Boran, Sawyer ‘‘said just keep quiet and do your job. I asked
him if he was going to fire me, and as I recall he didn’t
reply to it.’’ About a week later, after a meeting Lash had
with new employees, Boran told Sawyer he was still ‘‘nerv-
ous about signing the union card’’ and thought he ought to
tell Lash. Sawyer told him not to, that Lash did not know
Boran had signed a card.
Shortly after this, Boran spoke with Sawyer on the occa-
sion of the Respondent’s paycheck bouncing. According to
Boran, Sawyer ‘‘said he would take care of that, take care
of any bounced check charges. And then he said, I hear you
been stirring up trouble down there.’’ Boran told him no and
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792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sawyer ‘‘said, why don’t you pack your fll bags and
leave?’’ Sawyer did not testify.
In late February or early March Willie Mahanes became
Boran’s immediate supervisor. In the summer of 1995, ac-
cording to Boran, ‘‘I asked Willie why the D.C. owner for
the D.C. has—the management on Olive Street had such a
disliking to me. He stated he wasn’t too sure, but that he
would say that it was because of my signing the union card,
that I was involved with the union.’’ This was during a con-
versation they had concerning an incident Boran had that day
when Boran hit another truck and caused damage to the door
and mirrors. Boran was given a disciplinary warning by
Mahanes on July 18 for this offense. Boran also testified that
during this discussion, Mahanes said that ‘‘they were looking
for any reason that they could to get rid of me, and that he
was pretty sure that it was because of the union activity; that
he was quite sure of it.’’ Though agreeing that Boran asked
the question, Mahanes denied he gave the response Boran at-
tributed to him.
Boran was also given disciplinary warnings by Mahanes
on May 19 (for driving too fast, hitting a hole, and breaking
the gear shift lever) and December 9 and 13. Finally he was
discharged following an incident on December 15 wherein he
broke the bumper off the truck while going into a land fill.
The incidents of December 8 and 13 involved substantial
damage to the truck Boran was driving. Specifically, accord-
ing to the disciplinary report given by Mahanes, the incident
of December 8 involved Boran pulling a trailer without hav-
ing checked to see if the brakes were releasing. Thus he
drove with the breaks half locked on the right rear and as
a result, the brake shoe, wheel and both tires on that wheel
were damaged. Boran did not deny or explain this incident.
On December 13, Boran’s truck had an air leak and he
was told to take an empty trailer to Washington and have the
truck fixed. He did, and then he took a loaded trailer back
to the drop site at Central Garage, Virginia. As he backed
into the landfill, he ‘‘heard a burst of air.’’ He saw nothing
wrong, but had the truck pulled out of the landfill by the BFI
dozer operator. According to Boran, the mechanic then
worked on the truck, but when Boran put it in reverse there
was load bang. He saw nothing wrong, dumped the load, and
called Mahanes. His truck was towed to Central Garage.
According to the disciplinary warning Mahanes wrote,
Boran broke the airline to the right rear chamber and with
the truck in gear, by having the dozer operator pull it Boran
‘‘tore the Rear end out of the truck.’’
Before telling Mahanes on December 15 about breaking
off a piece of bumper, Mahanes ‘‘told me that he was told
if anything else was broken by me that they were going to
fire me.’’ Boran then told him of the accident and Mahanes
said that ‘‘they were looking for any reason that they could
to fire me and that this was a good excuse, the breaking of
the drive train on my assigned truck and this . . . .’’ The
Respondent was looking for an excuse, according to Boran’s
testimony, ‘‘Because of the union activity, signing the union
card.’’ According to Mahanes, Boran was discharged because
‘‘[w]e couldn’t keep enough trucks running to keep him
working. It cost us more to keep him working than he was
making.’’
Early in the morning of June 24, 1966, after having made
one run, Oren Simpson arrived at the W Street site in Wash-
ington to discover that the BFI loader was broken. He had
picked up a trailer which had been loaded previously, but on
returning found no trailer loaded and the loader still broken.
He and 9 or 10 other drivers waited and midmorning Sawyer
arrived.
The drivers discussed being paid for their time and when
the loader would be fixed. According to Simpson, ‘‘some-
body made the statement that somebody ought to talk to
Dino about it’’ and ‘‘I said, well, I’ll go talk to Dino and
ask him. That’s all I was going to do is ask him if we were
going to be compensated, and I did.’’ Sawyer said he would
talk to Lash about it, and when Lash arrived, according to
Simpson, he ‘‘came over to the group where we were stand-
ing and he looked right dead at me. And he said, ‘you’ll all
be compensated for your money here today’’’
Simpson was fired that day because, according to Lash,
without authorization he had taken his truck to a Ford dealer
to have the speedometer calibrated and had presented the bill
to Lash.
B. Analysis and Concluding Findings
1. The 8(a)(1) allegation
In Case 5–CA–25971 it is alleged, ‘‘On or about Decem-
ber 15, 1995, Respondent, by Willie Mahannes [(sic], told an
employee that Respondent disliked him because of his being
with the Union.’’
The only evidence of such an event in December is
Boran’s testimony that after telling Mahanes he had broken
a piece of the bumper, ‘‘I said, well, do you think that their
reasons for the animosity was because of the union? And he
replied that he felt so; yes.’’
Closer to the complaint allegation is Boran’s testimony
that in the summer of 1995 Mahanes made such a comment
during a conversation about his job status. Boran testified: ‘‘I
asked Willie why the D.C. owner for the D.C. has—the man-
agement on Olive Street had such a disliking to me. He stat-
ed he wasn’t too sure, but that he would say that it was be-
cause of my signing the union card, that I was involved with
the union.’’ According to Boran, this occurred during a dis-
cussion they were having ‘‘about an incident that I had had
that day. A truck and I had struck mirrors in a tight turn.’’
Mahanes denied making such a statement, though he agreed
that Boran asked if the Company was mad at him for having
signed a union card. Mahanes testified, ‘‘Told him I didn’t
know anything about the union.’’
The incident involving damage to mirrors happened on
July 18, 1995, according to the disciplinary warning
Mahanes gave Boran. The charge in this case was filed on
February 14, 1996, more than 6 months after the incident.
Therefore Section 10(b) would not permit finding a violation
based on the alleged statement by Mahanes in July.
Further, I conclude that Mahanes did not make the state-
ment attributed to him in December. Mahanes seemed credi-
ble and I note that he was not alleged, or found, to have
committed any of the antiunion activity found in the previous
case.
I do not credit Boran. The statements he attributed to
Mahanes, I conclude, were attempts to establish an unlawful
predicate for his discharge. These statements (as well as
those Sawyer allegedly made in January) are inconsistent
with the Respondent’s tolerance of Boran’s driving record. I
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793CWI OF MARYLAND, INC.
therefore credit Mahanes’ denial and conclude that this alle-
gation should be dismissed.
2. The discharges
Motive is an indispensable element of an alleged discharge
for union or concerted activity. Union animus is relevant to
prove motive. And animus can be inferred from surrounding
circumstances. However, animus alone does not prove a vio-
lation, or even make out a prima facie case in the sense of
being sufficient to establish a violation even in the absence
of rebuttal evidence. To prove a case of unlawful discrimina-
tion, the General Counsel must show by a preponderance of
the credible evidence that an adverse personnel action was
motivated by the employee’s union or other protected, con-
certed activity. Here there is established animus, from the
earlier case, but insufficient other evidence to prove that
Boran was discharged because he signed a union card, or
that Simpson was discharged for engaging in concerted activ-
ity.
a. Boran’s discharge
Boran signed a union authorization card in November
1994, a fact which was known to Sawyer by January 1995
and Mahanes at least by July. The General Counsel argues
that Lash did not learn of this until the card was offered in
evidence at the previous hearing on December 13. This infer-
ence sought by the General Counsel is contrary to estab-
lished Board authority that knowledge of an employee’s
union activity is inferred up the management chain of com-
mand. It is also contrary to the import of Boran’s testimony
to the effect that Mahanes told him in the summer that the
‘‘D.C. owner’’ disliked him because he had signed a union
card and his testimony that in January Sawyer said ‘‘I hear
you been stirring up trouble down there,’’ and ‘‘why don’t
you pack your fll bags and leave.’’
Further, on this record it appears, and I conclude, that
Mahanes made the decision to discharge Boran. While Lash
instructed him to do so after the December 13 incident if
Boran caused any more damage, the actual discharge of De-
cember 15 was made by Mahanes. He had the authority to
discharge employees, as he had exercised in the past.
In any event, from Boran’s testimony I conclude that his
only union activity was signing an authorization card and
this fact was well known to management for nearly a year
before he was discharged. Further, if in fact the Respondent
was looking for a reason to discharge Boran because he
signed a card, as Boran testified Mahanes said in July, such
reason would have been undertaken on May 19 when he was
first disciplined for damaging a truck. And if not on May 19,
then on July 18, or December 9 or 13.
In fact Boran amassed an impressive file of disciplinary
warnings relating to damage he caused, but was not dis-
charged until the final accident on December 15. His record,
and the fact that he was not discharged earlier belies a con-
clusion that the Respondent was waiting for an excuse to ter-
minate him for having signed an authorization card.
Additional evidence that the reason offered for Boran’s
discharge was not a pretext is the fact that six other drivers
were discharged between February 20, 1995, and May 13,
1996. Another was issued a warning for having caused dam-
age to a trailer on January 20, 1995, with the admonition that
future incidents would result in additional discipline. While
the Respondent apparently does not have, or enforce, a strict
progressive disciplinary system, it does in fact issue discipli-
nary warnings and does discharge employees for such mal-
feasance as causing damage to equipment.
On the evidence of record, it appears, and I conclude, that
Boran was treated leniently given the nature and number of
the incidents he caused. He certainly was not treated more
harshly than others. From these facts, and given his minimal
union activity, which the Respondent knew about for nearly
a year, an inference that Boran was discriminated against in
violation of Section 8(a)(3) is not warranted.
The evidence is strong that Boran would not have been
discharged but for the damage he did to his truck on Decem-
ber 15, which followed closely the damage he caused on De-
cember 8 and 13. Assuming, therefore, that the General
Counsel made out a prima facie case in the shifting burden
sense under the test of Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st. Cir. 1981), cert. denied 455 U.S.
989 (1982), I conclude that the Respondent met its burden
of proving that Boran would have been discharged in the ab-
sence of his signing a union card.
b. Simpson’s discharge
During the morning of June 25, The BFI loader was bro-
ken at the W Street site where the Respondent’s drivers were
to drop off empty trailers and pick up loaded ones. While
Simpson did pick up a load at about midnight, when he re-
turned there were no loaded trailers. He and other drivers
waited several hours, and the issue arose, according to Simp-
son, whether they would be paid for this time.
He testified that he approached Sawyer and asked ‘‘are we
going to get paid.’’ He also testified that when Lash arrived,
Lash spoke to the group and assured them that they would
be paid. Lash testified that he told the drivers that those who
were near the Department of Transportation (DOT) limit for
hours would be paid even though they did not get a second
load, and that the none of the drivers would lose their guar-
anteed $140 per day.
Lash also testified that after talking to the drivers, Simp-
son asked to speak to him and according to Lash:
He came to me and asked, he said, Tony I have got
a bill for you. He said I have been trying to get Willie
to send this bill up to the office but Willie would not
do it. He said Willy told me if I wanted to get this bill
paid that he had to come directly to me. So he says,
I coming to you. I got the truck calibrated when I had
to go to court about my ticket. So I asked him, well,
I said well you got my truck calibrated where. I said
I already carried it to Mack. And he said well I carried
it to the Ford place down in the Richmond area. I think
they testified yesterday Colonial.
So, at that point, I say well, how did the calibration
come out? He said oh, it came out the same as Mack.
So I say well, why did you carry it to a Ford dealer.
So he says well, I wanted to try to beat the ticket he
say because it makes my insurance go up, it goes
against my driving record with a CDL license and some
other reason.
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794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lash went on the testify that when Simpson left to return
his truck to the Virginia facility he called the supervisor in
Virginia (Mahanes) and told him to fire Simpson.
Simpson was not asked to either affirm or deny that he
told Lash on June 25 he had taken the truck to a Ford dealer
to be calibrated. He did, however, testify that sometime
‘‘early summer, early spring’’ he told Lash, at the office, that
he had received a ticket for going 72 m.p.h. in a 55 zone
and he wanted the truck calibrated. He testified that Lash
agreed and told him to arrange for this with Mahanes and
‘‘if I paid it he would take care of it.’’
The parties dispute whether Lash gave him authorization
to have the calibration done at the Ford dealership and
whether in fact the Respondent compensated Simpson. Simp-
son testified that he presented the bill to Lash at Lash’s of-
fice and Lash agreed to pay it and that Lash did so. He testi-
fied that the cost of the calibration ($60, $70) was added to
a regular pay check but Simpson did not bring the pay check
stub or the receipt to the hearing (which would have been
helpful in establishing dates) and did not attend the second
day. Indeed, his testimony about the calibration incident is
sketchy to the point of being almost meaningless.
The Respondent’s payroll records do not seem to indicate
that Simpson was reimbursed by check; however, this record
does show that for the week ending June 25 Simpson had
a gross of $756, which is 10 runs at $70 each plus $56. The
extra might be for the calibration, or it might be 4 hours of
waiting time at $14 per hour. No one was present at the
hearing to explain this record. While the Respondent’s coun-
sel argues that Lash denied paying Simpson, Lash testified
that he ‘‘told him I would take care of it.’’
However, Lash first testified that Simpson gave him the
calibration bill at the Respondent’s Olive Street office (as
Simpson had testified), asked to have it paid and Lash said
he would not. Lash testified that he then fired Simpson in
his own mind 2 or 3 days before actually telling Mahanes
to do so. Subsequently, Lash testified that Simpson gave him
the bill on June 25 at the W Street loading site, and Lash
agreed to pay it. Then as soon as Simpson was on the road
to Central Garage, he telephoned Mahanes with the discharge
order. These two versions cannot be reconciled and lead one
to question Lash’s credibility. Nevertheless, simply because
a witness is unreliable does not mean every part of his testi-
mony is false.
Notwithstanding that Lash was discredited in the previous
case, and his testimony here inconsistent, Simpson’s testi-
mony is of limited value. He did not, for instance, confirm
or deny that he had asked Lash to have the truck calibrated
and Lash in fact had done so at the Mack dealership.
On balance, Lash’s version of the events leading to Simp-
son’s discharge are plausible. I do not believe that Simpson
ever had permission to have the truck calibrated at a Ford
dealership and to have done so was beyond his authority.
Certainly discharging one for such an act is not patently un-
reasonable, though it raises a suspicion. This reason for dis-
charging Simpson might be found a pretext, particularly in
light of Lash’s inconsistent testimony about when he made
the discharge decision, if in fact Simpson had actually en-
gaged in protected, concerted activity of the type which
would motivate Lash to discharge him.
I conclude, however, such did not occur. Simpson testified
that he and other drivers discussed whether they would be
paid, having had to wait several hours because the loader
was down. Such is clearly protected, concerted activity. Mey-
ers Industries, 268 NLRB 493 (1984), remanded sub nom.
Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied
474 U.S. 948 (1985), reaffd. Meyers Industries, 281 NLRB
882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988), the
‘‘continuing vitality’’ of which was questioned by a panel
majority in Aroostook County Regional Ophthalmology Cen-
ter, 317 NLRB 218 (1995).
Although interrogated at length by counsel for the General
Counsel about an hourly rate for ‘‘wait time’’ Lash’s testi-
mony that there was no such policy, other than for break-
downs, is consistent with Boran’s. Boran testified that if em-
ployees had to wait more than an hour for a load, they would
get $14 per hour. ‘‘And we had been getting that through
most of January [1995] and then it was cut off.’’ But wheth-
er the Respondent had a ‘‘wait time’’ policy for such prob-
lems as the broken loader is immaterial. Either way, discus-
sion among employees about being paid for waiting is pro-
tected, concerted activity.
Under Meyers, in order for one’s discharge for having en-
gaged in such activity to be a violation of Section 8(a)(1) the
employer must know of the concerted nature of the act. Ac-
cording to Simpson, he approached Sawyer and asked ‘‘Are
we going to be paid?’’ But he did not state that he was act-
ing on behalf of other employees. It was a reasonable ques-
tion, whether resulting from group discussion or individual
concern. While there was nothing in Simpson’s question
which would necessarily suggest he was speaking as the re-
sult of group action other than the use of ‘‘we’’ he subse-
quently summoned another employee to the discussion. Thus
the query about being paid was certainly known to Sawyer,
and therefore to Lash, to have been a group concern.
Nevertheless, it is too much a stretch to conclude that he
was discharged for this reason. Lash testified without con-
tradiction that several drivers asked about being paid since
they were near the end of the 10 hours permissible by DOT
regulations. There is no evidence that any other driver was
discharge. Lash also testified without contradiction that in
other situations, where for instance a truck breaks down, the
driver is paid. Simpson testified that on arriving at the scene,
Lash told the group that they would be paid.
In short, a simple inquiry about whether the drivers would
be compensated, on this record, is not activity which I find
would reasonably motivate Lash, even as an antiunion em-
ployer, to discharge and employee. Even if it can be imputed
that Simpson’s question was the impetus for Lash’s decision
to pay employees, his ready agreement to do so is inconsist-
ent with the argued for inference that he then was moved to
retaliate. If he was disposed to discharge an employee for
raising the issue of pay for lost time, it follows that he would
not have readily agreed to do so.
Even with Lash’s questionable credibility and animas to-
ward the Union, it does not follow that every adverse per-
sonal decision is violative of the Act. The General Counsel
must prove a causal connection between the union or pro-
tected, concerted activity and the discharge, and here did not
do so. Accordingly, I will recommend this matter be dis-
missed.
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795CWI OF MARYLAND, INC.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
C. The Respondent’s Motion for Sanctions
Counsel for the Respondent made the following statement
in his brief, which I take to be a motion to sanction counsel
for the General Counsel:
The NLRB has sought to sanction attorneys who
cause slight delays in trials before Administrative Law
Judges. Here, CGC refused to return documents sub-
poenaed from CWI. CGC had rested his case. CWI was
in the middle of putting on its case. CWI needed the
documents overnight to decide which ones to offer into
evidence and to have copies made in advance. Not only
did CGC’s refusal to return the documents overnight
delay the trial, but CGC dissembled about his reasons
for his refusal. In essence, he claimed he needed the
documents to help police the testimony CWI’s second
and final witness. Yet, CGC had left the documents in
his office. He had not brought them to trial. Another
delay was created while CGC returned to his office to
retrieve the documents. Further delays were created
while the documents were reviewed and copied. If the
NLRB is going to sanction and suspend from practice
attorneys who delay trials, the NLRB must set an ex-
ample by sanctioning and suspending the CGC here.
[Footnote omitted.]
Finally, if the NLRB is truly interested in speed
trials it should reverse Agar Packing & Provision
Corp., 81 NLRB 1262 (1949), and sanction a Regional
Director who takes 18 months, from the date of the fil-
ing of a charge, to schedule a trial.
I find counsel for the Respondent’s motion to be without
merit. While this matter surely could have been tried with
more dispatch, and there was unnecessary colloquy initiated
by counsel for the Respondent, there were no inordinate
delays. The case was tried in 2 short days, the first adjourn-
ing at 4 p.m. at the request of counsel for the Respondent.
The case was closed at 2:05 p.m. the second day. Nor is
there any basis in law or fact to sanction the Regional Direc-
tor.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The consolidated complaint is dismissed in its entirety and
the Respondent’s motion for sanctions denied.
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