Food & Commercial Workers Local One (Big V Supermarkets)

National Labor Relations Board - Board Decisions

Aug 28, 1991

304 N.L.R.B. 952 (N.L.R.B. 1991)

952
304 NLRB No. 49
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We agree with the General Counsel that it is immaterial whether limita-
tions were included in the collective-bargaining agreement. It is only the lan-
guage of the authorization itself that binds an employee. Trico Products Corp.,
238 NLRB 1306, 1309 (1978). Although the statement in Trico that
‘‘[c]heckoff authorizations are contracts between the employer and the em-
ployee’’ represents a view rejected by the Board in Electrical Workers IBEW
Local 2088 (Lockheed Space Operations), 302 NLRB 322, 327–328 (1991),
we regard as still good law the proposition that applicable revocability limita-
tions must be found in the authorization itself.
2 This is a difficult question. On the one hand, the Supreme Court in Com-
munications Workers v. Beck, 487 U.S. 735, 752–753 fn. 7 (1988), implicitly
disapproved Detroit Mailers, supra. On the other hand, Beck concerned em-
ployees who were not union members, while here the employees are members.
United Food and Commercial Workers District
Union Local One, AFL–CIO, CLC (Big V Su-
permarkets, Inc.) and Marshall Malysz. Case
3–CB–5326
August 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 1 4, 1989, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
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, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge recommended dismissal of the complaint
alleging that the Respondent violated Section
8(b)(1)(A) of the Act when it refused to honor revoca-
tions of members’ checkoff authorizations for deduc-
tions paid to the Union’s Organizing Defense Cam-
paign (ODC). Contrary to the judge, we find that the
Respondent violated Section 8(b)(1)(A) by refusing to
agree to the requests by Charging Party Malysz and his
18 fellow employees to revoke their dues-checkoff au-
thorizations insofar as they might apply to the ODC
payment.
It is undisputed that the checkoff authorizations exe-
cuted by the employees had no limitations whatsoever
on revocation.1 Those authorizations read, in pertinent
part, as follows:
I hereby authorize my employer to deduct in
whole or in part from my earnings each week or
month all union initiation fees, dues and assess-
ment for which I may be indebted. . . .
It is also undisputed that the Respondent conveyed its
request to the Employer for the deduction of the ODC
payments in the following terms (emphasis in origi-
nal):
Please be advised that on March 28, 1988 the
membership of the United Food and Commercial
Workers District Union Local One approved an
assessment which represents one hour’s pay per
month per member.
Please establish a system by which these as-
sessments can be deducted from your
employees[’] paycheck during the second week of
each month. This system should go into effect im-
mediately.
The Respondent sent monthly billing statements to the
Employer regarding checked-off amounts it asked to
have transmitted to it. In these statements, it identified
the ODC payment as a separate payment for its ODC
‘‘Fund.’’
On these facts, the General Counsel made two alter-
native arguments for finding a violation of Section
8(b)(1)(A). He argued that the payments were assess-
ments, as opposed to an increase in periodic dues, and
that the Respondent would be obligated to honor a rev-
ocation of checkoff authorization for the payments on
that ground alone. Alternatively he argued that, regard-
less whether the payments constituted dues or an as-
sessment, the fact that the authorizations contained no
limits on revocability meant that the employees were
free to revoke at will, either in whole or in part. The
Respondent’s failure to honor partial revocations vio-
lated Section 8(b)(1)(A), he maintained.
The judge rejected the first argument because, in re-
liance on Detroit Mailers No. 40 (Detroit Publishers
Assn.), 192 NLRB 951, 952 (1971), he concluded that
the payments constituted a dues increase rather than an
assessment. As to the second argument, although the
judge agreed that, in the absence of revocability limita-
tions in the authorizations, the employees were free to
revoke at will, he concluded that such revocations
must be either all or nothing, i.e., that an authorization
signer who was also a union member could not, as the
employee/members did here, revoke the authorization
as to the ODC payments and leave it in place as to
general dues. The judge reached this latter conclusion
because he feared that any holding that partial revoca-
tions must be allowed ‘‘could result in extensive and
onerous collection procedures imposed on the Union.’’
He foresaw a ‘‘possibility for chaos’’ as employ-
ee/members designated widely varying percentages of
their dues for deduction by checkoff.
We do not reach the issue whether the ODC pay-
ments constituted periodic dues or an assessment,2 but
find for the General Counsel on the second theory. In
so doing we see no necessity, given the facts of this
case, for opening the door to the chaos feared by the
judge. As the Respondent’s own letter, quoted above,
makes clear, the Respondent envisioned the ODC pay-
953FOOD & COMMERCIAL WORKERS LOCAL ONE (BIG V SUPERMARKETS)
3 See Lockheed, supra at 325 fn. 12, for a discussion of the legislative his-
tory of Sec. 302(c)(4) suggesting that dues-checkoff systems were envisioned
as a way of minimizing administrative burdens on employers and unions with
respect to the collection of dues.
4 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
1 All dates are in 1988 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct the transcript con-
tained in his brief is hereby granted.
3 It appears that the Union inadvertently neglected to offer into evidence its
exhibits 4 and 5. I hereby grant its posttrial motion to receive these exhibits
which were referred to by the witnesses and which were made available to
Continued
ment as a distinct payment that called for its own sepa-
rate deduction ‘‘system.’’ It was termed an ‘‘assess-
ment’’; it was to be deducted during 1 week of the
month (as opposed to the weekly dues deductions); the
amount for each employee was to be based on what
he would earn in 1 hour (as opposed to the fixed
amounts for dues deductions); and it had its own sepa-
rate column on the pay statement. The Respondent’s
checkoff-billing statements sent to employers also
treated it separately. Having defined the ODC payment
as a clearly separable part of employee/member finan-
cial obligations, the Respondent is hardly in a position
to complain that it will suffer a heavy burden if it must
separate it out from dues payments for purposes of the
mechanics of collection.
Because we see nothing in the checkoff authoriza-
tion signed by the unit employees that clearly forbids
the partial revocations at issue here, and because we
cannot agree that requiring the Respondent to honor
those revocations is so destabilizing as to be at odds
with the checkoff scheme authorized by Congress in
Section 302(c)(4) of the Taft-Hartley Act,3 we find
that the Respondent violated Section 8(b)(1)(A) by re-
fusing to honor them.
ORDER
The National Labor Relations Board orders that the
Respondent, United Food and Commercial Workers
District Union Local One, AFL–CIO, CLC, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to give full force and effect to the ODC
checkoff revocations executed by employees.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reimburse employees who have executed ODC
checkoff revocations for all ODC payments withheld
since the revocations with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
(b) Post at the Respondent’s offices and meeting
halls copies of the attached notice marked ‘‘Appen-
dix.’’4 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by
the Respondent’s authorized representatives, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Sign and mail sufficient copies of the notice to
the Regional Director for Region 3 for posting by Big
V Supermarkets, Inc., if it is willing, in all locations
where notices to employees are customarily posted.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, concurring.
I concur in the result reached by my colleagues.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to give full force and effect to
Organizing Defense Fund (ODC) checkoff revocations
executed by members.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL reimburse employees who have executed
ODC checkoff revocations for the payments unlawfully
withheld, with interest.
UNITED FOOD AND COMMERCIAL
WORKERS DISTRICT UNION LOCAL ONE,
AFL–CIO, CLC
Robert A. Ellison, Esq., for the General Counsel.
Gene M. Szuflita, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Albany, New York, on February 23, 1989. The
charge was filed on July 25, 1988, and an amended charge
was filed on October 12, 1988.1 The complaint was issued
on October 6, 1988.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed , I make the following3
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all parties during the trial. I also note that there is no dispute as to their au-
thenticity.
FINDINGS OF FACT
I. JURISDICTION
It is admitted and I find that Big V Supermarkets is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. It also is admitted and I
find that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Union herein is actually a successor to the Amal-
gamated Meat Cutters Butcher Warehousemen & Affiliated
Crafts of North America. Big V has had a collective-bargain-
ing relationship with the predecessor and with the Respond-
ent (as successor), since 1967. The most recent contract be-
tween the Respondent and Big V runs from February 16,
1987, to August 19, 1989. That contract which covers Big
V’s employees in its meat, fish, and appetizer departments,
contains a standard union-security clause requiring union
membership after 31 days of employment. It also contains a
dues-checkoff clause which reads as follows:
Upon receipt of proper written authorization from
any employee, the Company agrees to deduct from the
wages of said employee dues, initiation fees and assess-
ments as listed by the Union, in duplicate schedules,
which will be furnished to the Company during the
week preceding that in which the deduction is to be
made. It is understood that any authorization for payroll
deduction shall be voluntary on the part of the em-
ployee and may be cancelled at yearly intervals or at
the termination date of this agreement.
The Charging Party, Marshall Malysz, has been for many
years a member in good standing in the Union and had been
employed by Big V since about 1973. He has never at-
tempted to resign his membership in the Union. He like other
employees covered by the Union’s contracts, signed an au-
thorization card which, in pertinent part, states as follows:
I hereby authorize my employer to deduct in whole or
in part from my earnings each week or month all union
initiation fees, dues and assessment for which I may be
indebted . . . .
The Union has its principal offices in Utica, New York.
It represents about 40,000 employees in a wide variety of oc-
cupations. It has contracts with over 400 employers other
than Big V.
Prior to March 1988, the Union had a dues structure which
required $5.75 per week from all members who were full-
time employees and $4.60 from all members who were part-
time employees. Apart from initiation fees and dues, the
Union’s members may also elect to pay, on a voluntary
basis, moneys to a credit union or to a political action fund.
In either case, a member can, if he chooses, elect to have
moneys for the credit union and/or the political action fund
deducted from his wages and remitted to the Union by his
employer. In such cases, moneys for those purposes are seg-
regated and do not go into the Union’s general funds.
In early 1988, the Union decided that it needed to inten-
sify its efforts to organize nonunion employers in its area.
This effort was to be called the Organizing Defence Cam-
paign (ODC). In conjunction therewith, the Union’s execu-
tive board passed a resolution on February 7, 1988, stating
in part:
[T]he Executive Board recommends that effective April
1, 1988, all members will pay the equivalent of one
hour’s pay per month in addition to the payment of the
regular dues.
IT IS FURTHER RESOLVED, that the union is author-
ized to conduct a vote by secret ballot for the purpose
of obtaining the approval of the membership on the
foregoing, and that the Union’s officers are given the
authority to take such actions as are necessary to con-
duct a vote in accordance with the bylaws of the Union.
IT IS FURTHER RESOLVED, that no general dues in-
creases will be instituted during a five year period com-
mencing on the date of the UFCW International Union
Second Regular Convention being held on July 24,
1988 and covering the period through the following
International Convention to be held in 1992.
Preliminary to the proposed vote, the Union distributed
written materials regarding the issue. In the spring a notice
signed by the Union’s president was posted at Big V which
explained the Union’s need to intensify its organizational ef-
forts and explained why those efforts would cost more
money. The membership was told that the proposal was for
payments from each member in the amount equal to 1 hour’s
pay per month which would be separately deducted from the
employee’s pay for the ODC.
In March 1988, the Union held a series of meetings
amongst its members where secret-ballot elections were con-
ducted as to the payment question. Malysz attended one of
these meetings. At the end of each meeting the ballot boxes
were closed and the count was ultimately held on March 28.
The tally showed that 3983 were in favor of the added pay-
ments, whereas 2207 were opposed.
On March 29, the Union wrote to the contracting employ-
ers stating that the membership had approved the proposed
new payments. In part, the letter signed by S. J. Talrico Jr.,
its administrator of internal operations stated:
Please be advised that on March 28, 1988 the mem-
bership of the United Food and Commercial Workers
District Union Local One approved an assessment
which represents one hour’s pay per month for each
member.
Please establish a system by which these assessments
can be deducted from your employees paycheck during
the second week of each month. This system should go
into effect immediately.
On April 22, Malysz sent a letter to the employer a copy
of which was forwarded to the Union on April 27. This letter
stated:
I am sending this notification to bring to your atten-
tion that without my specific authorization, there are to
be no new deductions from my paycheck, as of this
date. Please keep this notice on file.
955FOOD & COMMERCIAL WORKERS LOCAL ONE (BIG V SUPERMARKETS)
4 In Trico Products Corp., 238 NLRB 1306, 1309 (1978), the Board held
that the employer’s refusal to honor checkoff revocations was unlawful even
though the collective-bargaining agreement stated that the dues-checkoff au-
thorizations were not to be irrevocable for a period of more than 1 year or
beyond the termination date of the contract whichever occurred first. The
Board noted that the key fact was that the authorization cards signed by the
employees did not contain any limitation on their revocability and therefore
were revocable at will.
5 I note that Malysz never resigned his membership in the Union. As such
he cannot, as might a financial core member, that he objects to part of his
dues going for purposes other than collective bargaining. To that extent, there-
fore, the decision in Communications Workers of America v. Beck, 487 U.S.
735 (1988), is irrelevant.
Also forwarded to the Union on April 27 was a petition
signed by 19 of Big V’s bargaining unit employees which
stated;
We the undersigned, as associates of Big V and
members of Local l, do not authorize the Big V payroll
department to take an additional monthly deduction for
the Local 1 Organizing Defense Campaign. There is a
question as to the legality of this mandatory deduction
versus voluntary with the New York State Attorney
General’s office, which was contacted by many of our
members.
Notwithstanding the letter from Malysz and the aforemen-
tioned petition, the company has deducted and remitted to
the Union at the same times that it remits dues, the addi-
tional amounts for the ODC from the wages of its bargaining
unit employees (including Malysz and the employees who
signed the petition). In the case of Big V, the company has
designated the additional amount as an assessment and has
set up a new column in its pay statement to reflect that char-
acterization. Because payments to the ODC are based on a
percentage of each employee’s pay, it took some time for
Big V (and presumably other employers), to change their
computer programs to determine these amounts. As of the
time of this hearing, the Union had not yet finished changing
its billing procedure and has relied essentially on the honesty
and good faith of contracting employers to make the proper
deductions.
Testimony by the Union’s witnesses shows that the mon-
eys collected for the ODC have gone into the general treas-
ury of the Union and have not been segregated as in the case
of the moneys deducted for the credit union or the political
action fund. The evidence also shows that the ODC money
has been used by the Union for all general purposes, includ-
ing administrative costs, organizing expenses, community
campaigns, medical screening programs, scholarship pro-
grams, and collective bargaining. Since the inception of the
ODC, the Union has been able to employ 12 new full-time
membership service representatives, whose functions are
similar to those of business agents.
III. ANALYSIS
The General Counsel argues that the moneys deducted and
paid to the Union for the ODC, constitute an assessment and
not an increase in the Union’s periodic dues. He contends
that even though the checkoff authorization signed by
Malysz and other members authorizes the deduction of as-
sessments in addition to dues, the checkoff authorization
itself (unlike the collective-bargaining agreement), contains
no restrictions as to revocation, and therefore is revocable at
will.4 He then asserts that being revocable at will, a member
such as Malysz could therefore revoke the authorization as
to that portion which comprised an assessment which unlike
dues cannot be made a condition of continued employment.
Newspaper Guild Local 82 (Seattle Times), 289 NLRB 902
(1988). Therefore, according to the General Counsel, when
the employer continued to deduct the ODC payments from
Malysz’ wages after he had revoked his authorization to have
such payments deducted, and when the Union continued to
accept such deductions, the Union violated Section
8(b)(1)(A) of the Act. (Presumably the only reason that the
employer also was not alleged to have violated Section
8(a)(1) and (2) of the Act is because no unfair labor practice
charge was filed against it.)
Alternatively, the General Counsel contends that even if
the ODC payments are not construed as an assessment but
rather as dues, the checkoff authorization being revocable at
will, can be revocable in part. That is, the General Counsel
contends that a member signing a revocable checkoff author-
ization may opt to pay part of his dues by checkoff and part
on his own. In this case, the General Counsel argues that this
would impose no undue burden as the ODC moneys, even
if defined as dues, constitute a separately defined amount.5
The Union argues that the ODC payments constitute mere-
ly an increase in the periodic dues uniformly required of
members which are therefore properly deductible from wages
pursuant to an executed dues-checkoff authorization. It con-
tends that if employee/members seek to revoke their dues-
checkoff authorizations that is their business and such rev-
ocations will be honored. On the other hand, it maintains that
it need not give effect to partial revocations and that employ-
ees can either elect to have their dues checked off or pay
them directly. It is the Union’s contention that it need not,
on pain of violating the law, allow employees to do both.
The initial question therefore is whether the ODC pay-
ments should be construed as an assessment or as an increase
in dues. In this respect, the court in NLRB v. Food Fair
Stores, 307 F.2d 3 (3d Cir. 1962), stated:
It is clear that the term ‘‘periodic dues’’ in the usual
and ordinary sense means the regular payments im-
posed for the benefits to be derived from the member-
ship to be made at fixed intervals for the maintenance
of the organization. An assessment on the other hand,
is a charge levied on each member in the nature of a
tax or some other burden for a special purpose, not
having the character of being susceptible of anticipation
as a regularly recurring obligation as in the case of
‘‘periodic dues.’’
The fact that the payments in question are to be based on
a percentage of the employees’ earnings rather than being a
fixed amount for each employee does not detract from the
payments being defined as uniformly required dues. Local
409 IATSE (RCA Service Co.), 140 NLRB 759, 764 (1963).
Nor is it necessary to delve very far into the purpose of the
payments in order to describe them as dues. As noted by the
Board in Detroit Mailers No. 40 (Detroit Publishers Assn.),
192 NLRB 951, 952 (1971):
Section 8(a)(3) authorizes a union to require all em-
ployees whom it represents and who are covered by a
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Union’s having valid union-security clauses in collective-bargaining agree-
ments may in certain circumstances cause an employer to discharge an em-
ployee who makes a belated tender of dues. General Motors, 134 NLRB 1107,
(1961). Similarly, a union need not accept partial dues payments. Acme Fast
Freight, 134 NLRB 1131 (1961).
valid union-security agreement to pay all ‘‘periodic
dues . . . uniformly required as a condition of acquir-
ing or retaining [union] membership.’’ Neither on its
face nor in the congressional purpose behind this provi-
sion can any warrant be found for making any distinc-
tion here between dues which may be allocated for col-
lective-bargaining purposes and those earmarked for in-
stitutional expenses of the union. As recognized by the
Supreme Court in the Schermerhorn case, [373 U.S.
746], ‘‘dues collected from members may be used for
a ‘‘variety of purposes, in addition to meeting the
union’s costs of collective bargaining. . . . By virtue
of Section 8(a)(3), such dues may be required from an
employee under a union-security contract so long as
they are periodic and uniformly required and are not
devoted to a purpose which would make their manda-
tory extraction otherwise inimical to public policy.
In this case the evidence convinces me that the ODC pay-
ments authorized by secret-ballot vote of the Union’s mem-
bership in March 1988 constitutes an increase in dues and
not an assessment. The fact that Big V described this money
as being an assessment and the fact that in a letter dated
March 29, a union official also described it as an assessment,
does not mean that it is an assessment from a legal point of
view. See Local 409 IATSE, supra at 764. On the contrary,
the record establishes that these payments have all the hall-
marks of periodic and uniformly required dues. Thus, they
are paid on a regular basis on a uniformly determined per-
centage of each employee’s wages, and are remitted along
with regular dues to be deposited in the Union’s general
treasury unsegregated from its other funds. The money was
and is earmarked for organization activities and also for gen-
eral administrative and other expenses. The evidence shows
that the decision to require these additional payments was
not intended to be a temporary measure, but rather was im-
plemented as a permanent part of the Union’s overall dues
structure, with an assurance given to its members that if they
voted for these payments there would be no other dues in-
creases for at least the next 5 years.
Notwithstanding my conclusion that the ODC payments
constituted merely an increase in dues rather than an assess-
ment, the General Counsel would still argue that members
could nevertheless partially revoke their dues-checkoff au-
thorizations if such authorizations were revocable at will. I
do not agree.
Dues-checkoff authorizations are voluntary and pursuant to
Section 302 of the Act, constitute one of the exceptions to
the prohibitions on employer payments to unions or their
agents. Congress specifically provided that dues-checkoff au-
thorizations must be voluntarily executed by employees, in a
writing ‘‘which shall not be irrevocable for a period of more
than one year, or beyond the termination date of the applica-
ble collective agreement, whichever occurs sooner.’’ The
purpose of allowing such deductions and payments was for
a union’s administrative convenience thereby eliminating the
time and expense of making individual periodic (usually
monthly), collections from its members. At the same time,
such a system does provide a benefit to employees as it ef-
fectively eliminates the possibility that employees covered by
valid union-security agreements will risk discharge as a re-
sult of late or partial dues payments.6 Of course such a risk
is one which the law allows an employee/member to take.
It seems to me that if the Board were to require union’s
as a result of this case, to honor partial revocations of dues-
checkoff authorizations, it could result in undermining the
utility of these authorizations. This Union has over 40,000
members and if even a small percentage of those members
decided to change their mode of dues payments this could
result in extensive and onerous collection procedures im-
posed on the Union. For example one could imagine the pos-
sibility for chaos if some of the members decided to have
50 percent of their dues deducted and 50 percent to be paid
directly, while other members decided to have 20, 30, 67, or
85 percent of their dues paid by dues deductions. Assuming
that such a situation evolved, even to a limited extent, the
possibility of late payments, the possibility of partial pay-
ments, and the need to expend time and money to monitor
such a situation would in my opinion be onerous. In this re-
spect I agree with the Union, that the better answer is to
allow a union to say to an employee who wants to revoke
his dues-checkoff authorization; either revoke it totally or
don’t revoke it at all, but in either case we will honor your
decision.
As the General Counsel has cited no authority for the
proposition that a Union will violate the Act by failing to
honor a member’s partial revocation of his dues-checkoff au-
thorization, and as I see no basis for such a conclusion, I
shall recommend that the Board find that the Union has not
violated the Act.
CONCLUSION OF LAW
The Union has not engaged in any unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommended Order omitted from publication.]