Davenport Insulation, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1970

184 N.L.R.B. 908 (N.L.R.B. 1970)

908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davenport Insulation , Incorporated and Carpenters'
District Council of Washington, D.C. affiliated
with the United Brotherhood of Carpenters and
Joiners of America , AFL,--CIO. Case 5-CA-4319
August 18, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
On February 4, 1970, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel and Respondent filed excep-
tions to the Trial Examiner's Decision with support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and
hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner, as herein
modified.
We agree with the Trial Examiner's ultimate con-
clusion that Respondent did not violate Section
8(a)(5) of the Act. We note that the Charging Par-
ty's contract with Bilton Insulation and Supply,
Inc., hereinafter called Bilton, the predecessor of
Respondent, was entered into pursuant to Section
8(f) of the Act, which reads in part:
It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an
employer engaged primarily in the building and
construction industry to make an agreement
covering employees engaged (or who, upon
their employment, will be engaged) in the
building and construction industry with a labor
organization of which building and construc-
tion employees are members (not established,
maintained, or assisted by any action defined
in section 8(a) of this Act as an unfair labor
practice) because (1) the majority status of
such labor organization has not been
established under the provisions of section 9 of
this Act prior to the making of such agree-
ment....
It is clear that Section 8(f)(1) was intended to
permit an employer in the construction industry to
negotiate a contract with a union which has not
established its majority status without either party
running the risk of committing an unfair labor prac-
tice.' But when a collective-bargaining agreement is
entered into pursuant to that section, the contract
can give rise to no presumption of continuing
majority status. The situation in this case is thus
clearly distinguishable from that in Burns 3 or in
Ranch-Way, ' where the union's contract with the
predecessor employer created a valid presumption
of continuing majority which carried over to the
successor employer.' We hold, therefore, that
where, as here, a contract with the predecessor em-
ployer has been entered into pursuant to Section
8(f), no duty is imposed upon the successor em-
ployer to honor its predecessor's bargaining obliga-
tion unless there is independent proof of the
union's actual majority and of the successor em-
ployer's unlawful refusal to bargain. As the uncon-
troverted evidence in this case reveals that the
Charging Party at no time represented a majority of
the employees employed by Respondent, we will
not require Respondent to bargain with the Union
or to assume and be bound by the contract between
the Charging Party and Bilton.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint be, and it hereby is
dismissed.
'In the absence of exceptions, we adopt proforma the Trial Examiner's
finding that Respondent did not violate Sec 8(a)(3) of the Act
See Bricklayers, Local No 3, 162 NLRB 476.
The William J Burns International Detective Agency, Inc, 182 NLRB
348
'Ranch-Way Inc., 183 NLRB No 116.
Member Jenkins does not subscribe to this distinction of Burns, but ad-
heres to his dissent in that case
TRIAL EXAMINER'S DECISION
Statement of the Case
PAUL E. WEIL, Trial Examiner: On a charge filed
February 20, 1969, by Carpenters' District Council
of Washington, D.C. affiliated with The United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereinafter called the Union, the
184 NLRB No. 114
DAVENPORT INSULATION, INCORPORATED
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 5 (Bal-
timore, Maryland), issued a complaint on August
26, 1969, against Davenport Insulation, Incor-
porated, hereinafter called Respondent, alleging
that by various acts and conduct Respondent vio-
lated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended. By its duly filed
answer Respondent denied the commission of any
unfair labor practice although admitting certain
facts alleged in the complaint including jurisdic-
tional facts. On the issues thus joined the matter
came on for hearing before me in Washington,
D.C., on November 4, 1969. All parties were
represented by counsel and had an opportunity to
examine and cross-examine witnesses, to introduce
evidence relevant and material to the issues and to
argue orally and file briefs with the Trial Examiner.
At the close of the hearing the parties declined to
argue orally but the General Counsel and Respon-
dent elected to file briefs which have been duly
received.
Upon the entire record in the case, and in con-
templation of the briefs, I hereby make the follow-
ing:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is and at all times material herein has
been a Virginia corporation with its principal office
and place of business in Falls Church , Virginia, en-
gaged in the business of residential insulation in the
States of Virginia and Maryland and in the District
of Columbia . Respondent anticipates that it will
during the year 1969 receive directly from outside
the Commonwealth of Virginia materials valued in
excess of $ 50,000.
Respondent is and at all times material herein has
been engaged in commerce within the meaning of
Section 2 ( 6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
909
cal material and selling insulation and related
products . Apparently as the business of Bilton ex-
panded it was administratively broken down into six
separate divisions : the commercial division, which
installed acoustical tile, ceilings , partitions and
drywall ; the residential division , which installed in-
sulation in any structure and performed termite
proofing ; the pipe covering division , which, as its
name implies , covered pipes for insulation pur-
poses; the spray products division , which sprayed
chemical foam and other acoustical products; the
supply division , which warehoused and sold insula-
tion and related products and the Texas division,
which handled Bilton 's business in the State of Tex-
as. The first five of these divisions were located in a
building in Arlington County, Virginia.
In January 1969 at a monthly departmental meet-
ing it was disclosed that Bilton 's residential division
had lost approximately $83,000 in the preceding
year.
The following Monday Davenport informed the
president of Bilton , Adolph Bilton , of his intention
to resign . Thereafter Bilton and Davenport engaged
in negotiations which resulted in a memorandum of
agreement dated January 271 which provides, inter
alia, that Bilton desires to go out of the "residential
division" business and agrees to relinquish to
Davenport all accounts and contracts and assist him
in an orderly transition of its accounts and con-
tracts to Davenport . The agreement additionally
establishes the value of Davenport 's interest in Bil-
ton at $30,000 and provides " to assist in setting up
a workable solution for a continuing unhampered
insulation business ... and to aid employer [ Bilton]
in disposal of unneeded equipment or merchandise
because of this transition " Bilton agreed to transfer
various equipment including 15 trucks , some blow-
ing machines , miscellaneous parts and equipment,
and certain unspecified merchandise all of which
were to be valued and the total value thereof to be
set off against the $30,000 . The agreement goes on
to state "for the best interest of employee [ Daven-
port] and employer [Bilton ] it is stressed that a
continuing working relationship be maintained" but
provides that merchandise terms may be
The Union is now and at all times material herein renegotiated in 2 years . The agreement also pro-
has been a labor organization within the meaning of vides that Bilton will refer "residential division"
Section 2 ( 5) of the Act. ' type leads as much as possible to Davenport and
III. THE UNFAIR LABOR PRACTICES
A. Background
Bilton Insulation and Supply, Inc., hereinafter
called Bilton, was incorporated in 1952 . One of its
organizers , Carol V. Davenport , owner of 10 per-
cent of its stock, became its executive vice pres-
ident and general manager . Bilton was engaged in
the business of installing acoustical tile, ceiling and
dry wall products, insulation of buildings , covering
of pipes , spraying chemical foam and other acousti-
that Davenport will not engage in acoustical spray
urathane forming, partitions or drywall commercial
contracting for a period of 2 years without prior
written approval of Bilton . In these fields it was
agreed that Davenport could continue to act as a
sales agent for Bilton with a commission of 25 per-
cent of the net profit.
In anticipation of the forthcoming transaction
Bilton commenced rehabilitating the 15 trucks and
removing its name therefrom while Davenport com-
menced the necessary action to form a corporation
of which he became majority stockholder with 75-
' All dates hereinafter are m the year 1969 unless otherwise specified
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
percent interest and Tom Clohisy, who had been_
manager of Bilton's residential division, became the
owner of 25 percent. On Friday, February 14,
Davenport's resignation became effective at the
close of the normal workday. Earlier that week on
Tuesday or Wednesday Davenport offered a job to
William Marion who had been Bilton's residential
division superintendent. On the evening of Febru-
ary 14 Edward Alfred, who had been assistant
foreman for Bilton , was hired by Davenport as
assistant foreman at the new corporation. Other
than these two men, according to Davenport's
testimony, he informed none of the employees that
he was going into business for himself. After 5 o'-
clock on the 14th he told some of the employees
that he was going to be in business at a new address
the next day and they said that they would like to
come to work for him. The next day, Saturday, the
15th of February, five or six of the employees of
the residential division, several of the employees
from the spray products division, Davenport and
some of his relatives moved the trucks, equipment,
and supplies secured from Bilton to Davenport's
new place of business some 3 miles away in Fairfax
County.
On the morning of Monday, February 17, Daven-
port commenced operations from his own plant
with 12 employees who had prior thereto been em-
ployed by Bilton 's residential division, and four who
had been employed by Bilton's spray products divi-
sion.
The term residential division applied to Bilton is
misleading . In fact the so-called residential division
was engaged in all types of insulation work (other
than that done in the "space forming division")
whether done in residences or commercial or indus-
trial establishments. According to the testimony of
Mr. Bilton 80 percent of the work of the residential
division was residential insulation work, in in-
dividual homes, primarily new construction. A very
small percentage of his work was concerned with
adding insulation to preexisting homes. The other
20 percent was concerned with schools, churches
and industrial and commercial establishments as
well as office buildings.
In early 1968 Davenport as Bilton's vice pres-
ident, signed a contract with the Union for the em-
ployees of the industrial division after 1 day of
picketing by the Union.' The agreement between
the Union and Bilton terminated by its own terms
on April 30, 1969.
Bilton 's residential division employed 46 em-
ployees of whom 30-35 were in the unit. On
February 17, the Monday after the transition, Bil-
ton stopped the residential division employees who
appeared to work before they checked in and
gathered them together. He told them that he was
going out of the residential insulation business. He
told the employees to turn in their uniforms, for
which they would get a refund, distributed checks
to all but three of them, and sent the rest home.
Prior to that time there had been 17 or 18 non-
union employees in the division and 10 to 15 who
were union members. All of the employees who
went to work for Davenport were among the
nonunion employees of Bilton's residential
division.
After February 15 Bilton completed certain res-
idential insulation jobs which had either been
started or to which Bilton was previously com-
mitted. Adolph Bilton identified a group of 19
documents consisting of contracts and proposals
that according to his testimony revealed that Bilton
continued to do insulating work . It is notable that
all of the 19 had to do with nonresidential construc-
tion; in 15 of them the insulation work appears to
be connected with other types of work such as
drywall, acoustical ceiling , tiling or the like.
Bilton also identified the personnel records of
eight employees each of whom worked in the res-
idential division. The records reveal that two of
them worked only until March 11, the others
sporadically through April or May, and only one of
them appears to have worked full time until July
15. He testified that after the residential division
contract with the Union expired the Union declined
to renew it or enter into a new contract and insula-
tors employed by Bilton thereafter were placed in
the commercial division and paid under the com-
mercial contract with the Union.
B. The Issues
The General Counsel contends that Respondent
is a successor to Bilton with regard to Bilton's res-
idential division work and that as such the contract
between Bilton and the Union continued in full
force and effect with regard to Davenport until its
expiration. In accordance with this theory the
General Counsel contends that it is unnecessary for
him to show that the Union at any time represented
a majority of Davenport's employees doing insula-
ting work. Additionally the General Counsel con-
tends that Respondent is guilty of unilaterally
changing rates of pay and refusing to pay into the
Union's health and welfare fund and bargain collec-
tively after February 14 with the Union, all in viola-
tion of Section 8(a)(5) of the Act. With regard to
16 employees who were not employed by Respond-
ent, the General Counsel contends that Respond-
ent violated Section 8(a)(3).
Respondent contends that it is not a successor to
Bilton and that in fact Bilton has continued in the
same field of activity in competition with Respond-
ent. Accordingly in the absence of any showing by
the Union that it represents a majority of Respond-
s The General Counsel characterizes the recognition as being pursuant to
Section 8(f) of the Act, the Respondent characterizes the recognition as
having been coerced by blackmail picketing It appears that at no time has
the Union represented a majority of the employees of the residential divi-
sion.
DAVENPORT INSULATION, INCORPORATED
ent's employees Respondent denies that it has any
liability to bargain with the Union. With regard to
the employees who were laid off by Bilton and not
hired by Respondent, Respondent contends that
with the exception of one who in fact was hired and
worked for several weeks for Respondent none of
the other employees made an application for em-
ployment to Davenport, the only officer of Re-
spondent empowered to hire employees. Ac-
cordingly Respondent contends that it is guilty of
no unfair labor practices.
The issues resulting from the contentions of the
parties are first, whether Respondent is a successor
to Bilton's residential division; second, whether
Respondent violated Section 8(a)(5) by its refusal
to recognize and bargain with the Union; and third,
whether Respondent's failure to employ the in-
dividuals named in the complaint violated Section
8(a)(3) of the Act.
C. The Successorship Issue
In the first place it is clear and I find that Bilton
has not continued in the same business activity in
its residential division as that undertaken by
Respondent. The memorandum of agreement
between Bilton and Davenport clearly recites that
Bilton desired to dispose of or go out of the busi-
ness. His speech to the employees on February 17
reiterated his acknowledgement that this phase of
his business was discontinued and the fact that his
work force was reduced from about 35 employees
prior to February 15 to 6 to 8 employees thereafter
and none after July clearly reveals that Bilton no
longer is actively pursuing this line of business.
While contrary to the terms of the memorandum of
agreement it does not appear that Bilton has
referred residential type leads to Respondent or
that Respondent has acted as a sales agent for Bil-
ton in the commercial fields which it pledged not to
engage in, nevertheless, it is noteworthy that
Respondent commenced with 12 employees, and
more thereafter, doing the work that Bilton's res-
idential division had been doing on the projects in
which Bilton previously had contracts. With regard
to residential insulation which had comprised some
80 percent of the residential division's business
prior to February 15, after the completion of pro-
jects to which Bilton was already committed, none
has been performed. This type of work now com-
prises 80 percent of Respondent's contracts. Mr.
Bilton's attempt to characterize himself as a com-
petitor is not supported. There is no evidence that
3 Marian Simcox, Trustee, etc , 178 NLRB 516
4 Royal Brand Cutlery Company, 122 NLRB 901, cf. Northwest Gal-
vanizing Co , 168 NLRB 26, Lloyd A Fry Roofing Co , Inc , 176 NLRB
1024
' John Stepp's Friendly Ford, Inc., 141 NLRB 1065, N L R B v Armato,
199 F.2d 800 (C.A 7), Lloyd A FryRoofing Co., Inc, supra.
6 The use of machinery and equipment is relatively unimportant in the
consideration of this case as distinguished from cases such as Northwest
911
he has bid since February 15 on any residential
work. The contracts pursuant to which Bilton has
engaged in insulating work in most cases required
the insulating work to be done in connection with
the installation of drywall, acoustical tile, ceilings
or other commercial work of Bilton.
The basic test of successorship is whether the
"employing industry" remains substantially the
same after the transfer.3 It is not necessary that the
purported successor purchase all of the predeces-
sor's business' or that the successor shall take over
the entire employee complement of the predeces-
sor.5 The basis of the decisions of the Board and the
courts is the "substantial continuity in the employ-
ing enterprise." In the instant case such substan-
tial continuity is clearly discernible. The agree-
ment between Bilton and Davenport makes it
clear that Bilton is going out of the business con-
ducted by his residential division and that Daven-
port is assuming this business. The fact that Bilton
continued to do some insulating work previously
contracted for and thereafter continued to bid
on insulating work as a concomitant of the other
work which it continued to do does not neces-
sarily militate against the conclusion that Bil-
ton went out of the specific business of an insula-
tion contractor. The record is clear that Davenport
commenced work as an insulation contractor with
12 employees all of whom were formerly employed
by Bilton using the same equipment that Bilton had
used.'
The employee complement from which Respon-
dent drew its employees was in effect wiped out by
the transfer of the business to it. Those few em-
ployees of Bilton who continued doing insulation
work became a part of another division and ap-
parently of another unit represented by the Carpen-
ters Union. The predecessor division comprised a
separate collective-bargaining unit under a separate
contract which immediately after the transfer was
permitted by the Union to expire. In short the em-
ploying enterprise appears to have been not Bilton
as a whole but Bilton's residential division and Bil-
ton's residential division was discontinued, with its
work to a great extent taken over by Davenport.
It is immaterial that Davenport operated from a
plant 3 miles separated from Bilton 's.' The employ-
ing enterprise remained the same conducted in the
same fashion under the same supervision with em-
ployees having the same range of skills necessary
for all phases of the operation.' In short all of the
criteria normally used by the Board and the courts
to determine the successorship issue are substan-
tially met.
Galvanizing Co , Royal Brand Cutlery Company, N L R B v Armato, Lloyd
A. Fry Roofing Co., Inc , and most of the cases therein cited The mayor part
of the equipment purchased from Bilton by Davenport consisted of trucks,
the use of which is as relevant to the insulation business as it is to the other
divisions of Bilton or of any other construction contractor.
7 Morgan Products, Inc , 172 NLRB No 15.
-sParganient Fuller, Inc., 173 NLRB 696, cited by Respondent is fac-
tually distinguishable on this ground.
k
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having determined that Davenport is a successor
to Bilton we reach the question of Davenport's
duty, if such there be, to recognize the Union and
to be bound by its contract with the predecessor.
The General Counsel's argument particularly with
regard to the contract appears to be twofold. First,
based on cases such as Oilfield Maintenance Co.,
Inc. (142 NLRB 1384), the General Counsel ar-
gues that Davenport is an alter ego to Bilton bound
by the contract between Bilton and the Union and,
secondly, based on Wiley v. Livingston, 376 U.S.
543, General Counsel contends that the successor
normally is bound by the contract of his predeces-
sor.
With regard to the "alter ego" argument I see a
distinction between an alter ego and a successor
such as Davenport, a bona fide purchaser in good
faith of the assets of the predecessor but a new em-
ployer in the sense that Mr. Davenport had such a
small financial interest in Bilton as distinguished
from his majority control of Respondent. The alter
ego on the other hand is actually the same employer
but appears under a different guise . As far as the
record is concerned there is no evidence that Mr.
Bilton or his company retains any control over
Davenport or his company other than that con-
tained in the buy-sell agreement between them,
limiting Respondent in competing with Bilton's
noninsulating activities.
With regard to the General Counsel's alternate
argument his reliance is placed on the position
taken by the General Counsel in four cases argued
to the Board on April 15, 1969, which are not yet
decided.' However I believe that the General Coun-
sel is skipping a step to reach this issue. As I read
the cases the finding of a successorship leaves the
General Counsel one step short of an order to bar-
gain and that is proof or presumption of the
Union's continuing majority status. Within the
criteria laid down by the Board a successorship may
exist in which the union may be shown to have lost
its representational status. This is particularly so in
the circumstances where the successor's employee
complement is less than half of the predecessor's
and it is not shown that the fraction who followed
the employing enterprise are those who desired
representation by the union. Some of the cases on
which the General Counsel relies are cases in which
a certification existed and under those cases the
majority representation of the union is presumed
unless respondent is able to come forward with
evidence to the contrary after the completion of the
certification year.10
In other cases the Board rested its majority find-
ing on a presently existing or recently expired con-
tract.11
In the instant case we are dealing with a situation
where the Union admittedly has never represented
a majority of the employees and where the contract
was entered into by Bilton in order to relieve itself
of the picket line , without any consideration of the
Union's status as a representative designated by its
employees.12 Under these circumstances no pre-
sumption follows from the contract. As the Board
said in Ref-Chem Company, etc., 169 NLRB 376, in
which if found majority representation based on the
presumption attendant to contractual representa-
tion, "This is not to say that this presumption of
majority status cannot be overcome, but to do so,
the record must offer clear and convincing proof
that the Union no longer represents a majority of
the unit employees." In the instant case the proof
could scarcely be more clear and convincing and it
stands uncontradicted on the record. Under these
circumstances an order to bargain would operate to
the contrary of the rationale of the successorship
doctrine to protect union members from being
deprived of the benefits of their union membership.
The employees with whom we are here concerned
never sought such benefits and must be presumed
not to have desired them. Accordingly, I shall
recommend that the complaint be dismissed insofar
as it alleges a violation of Section 8(a)(5) in the
Respondent's refusal to recognize the Union or to
give effect to Bilton's contract with the Union.
D. The 8(a)(3) Allegation
The General Counsel alleges that by Respond-
ent's failure to hire 16 named employees it
discouraged membership in a labor organization in
violation of Section 8(a)(3). The 16 named in-
dividuals are alleged to have been members of the
Union. The General Counsel would apparently find
support for this allegation in the fact that these in-
dividuals appeared on Bilton's residential division
payroll and did not appear on Respondent's payroll
together with the evidence of Dennis Carter, who
was the Union's shop steward at Bilton, that none
of the employees appearing on Respondent's
payroll belong to the Union and that 10 or 15 of
the employees of Bilton's residential division belong
to the Local. General Counsel stated that his theory
was that nonunion employees were sought out
whereas union employees were not sought out. But
there is no support in the record for that theory.
Davenport testified that Bilton lost money in the in-
sulating business by reason of the fact it had to pay
employees under the terms of the union contract
and that he anticipated that he could make money
doing the same work with the same group of em-
ployees. This of course gives rise to an inference
° Kota Division of Dura Corp , Case 18-CA-3419, Travelodge Corp , Case
21-CA-7694, Hackney Iron and Steel Co, Cases 23-CA-2505 and
23-C?-2554 ( remanded by C C A. for Board consideration on subject);
and William J. Burns International Detective Agency, Inc, Case
3 l-CA-776
10 N L.R B v Arn ato , supra , Downtown Bakery Corp, 139 NLRB 1352 -
During the certification year, of course , the presumption is not rebuttable
" Tom-A-Hawk Transit , Inc, 174 NLRB 124, Valleydale Packers, Inc.,
162 NLRB 1486, Michaud Bus Lines, Inc., 171 NLRB No 21
" Additionally the record reveals that none of the employees hired by
Davenport from Bilton were union members . ( 1 reject the position of the
General Counsel that this factor resulted from a violation of Section
8(a)(3) The discussion thereof will be found below )
DAVENPORT INSULATION, INCORPORATED 913
that he anticipated doing it without the benefits of
the union contract under which Bilton worked. But
this is a far cry from supporting a finding that he
discriminated in hiring the employees with whom
he has been doing the work. He testified without
successful contradiction that he was the only
member of Respondent who was authorized to hire
employees and that only one of the named alleged
discriminatees ever applied for employment to him.
He further testified that one individual was hired
and worked for Respondent until he voluntarily
quit . Of course the evidence raises a suspicion of
discrimination . If we accept the contention of the
General Counsel that the 16 named employees
were union members and the evidence of Carter
that none of Respondent 's employees were among
the union members , it would appear that under nor-
mal circumstances the same ratio would carry over
from the predecessor to the successor employer but
the suspicion requires the support of some element
of solid evidence and I find none in the record. Ac-
cordingly, I must conclude that the General Coun-
sel has failed to support the 8(a )( 3) allegation and I
shall recommend its dismissal.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within
the meaning of Section 2(6) and ( 7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 ( 5) of the Act.
3. The allegations of the complaint that Respond-
ent has engaged in unfair labor practices within
the meaning of Section 8(a)(1), (3), and ( 5) of the
Act have not been supported by substantial
evidence.
RECOMMENDATION
It is recommended that the complaint be
dismissed in its entirety.