Jack Biegger Nissan

National Labor Relations Board - Board Decisions

Oct 11, 1990

300 N.L.R.B. 467 (N.L.R.B. 1990)

467
300 NLRB No. 53
JACK BIEGGER NISSAN
1 We agree with the judge that the General Counsel has failed to dem-
onstrate that the parties’ negotiations reached impasse. The General Counsel’s
limited exceptions appear to contend that once the judge posited the possibility
that the parties had not reached agreement because no meeting of the minds
had occurred, he should have concluded that the parties were at impasse. On
the facts of this case, we cannot agree. Whether the parties in fact reached
agreement or, as the General Counsel contends, failed to do so, it is clear from
the testimony and from other evidence of the negotiators’ conduct at the Feb-
ruary 10 meeting that both parties ended the session evincing the belief that
they had negotiated an agreement. While their respective beliefs may have
been mistaken ones, they are inconsistent with a finding of impasse. Thus, de-
spite the Respondent’s contention that it never yielded to the Union on the
management-rights clause, we cannot conclude from the evidence that the Re-
spondent’s insistence on the clause rendered further bargaining futile. Simi-
larly, the record facts concerning the Respondent’s overall bargaining strategy
do not yield evidence of an intent to forestall agreement with the Union suffi-
cient to outweigh the Respondent’s apparent willingness to come to an agree-
ment with the Union. Accordingly, we do not conclude that the Respondent
engaged in surface bargaining.
1 Respondent’s previous name was Sahara Datsun, Inc. The transcript is cor-
rected at p. 9, L. 24, to change the word ‘‘formally’’ to ‘‘formerly.’’
2 Respondent annually derives gross revenues in excess of $500,000 from
its retail operations and has direct inflow exceeding $50,000. As Respondent
meets the Board’s retail standard for asserting jurisdiction, I find that it would
effectuate the purposes of the Act for the Board to exercise that jurisdiction
here to resolve this labor dispute.
3 Respondent’s answer denies that the Union is a labor organization in the
previous Board case involving these parties, the Union was found to be a labor
Continued
Sahara Nissan, Inc., d/b/a Jack Biegger Nissan and
Liberated Workers Welfare Union. Case 31–
CA–17074
October 11, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 20, 1989, Administrative Law Judge
William L. Schmidt issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in opposition to
the General Counsel’s exceptions.
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-
clusions1 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Bernard T. Hopkins, Esq., for the General Counsel.
Norman Kirshman, Esq. (Kirsh and Harris), of Las Vegas,
Nevada, for the Respondent.
Steven Geller, President, Liberated Workers Welfare Union,
Las Vegas, Nevada, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Liber-
ated Workers Welfare Union (Charging Party or Union) filed
a charge against Sahara Nissan, Inc. d/b/a Jack Biegger Nis-
san (Respondent or Company) on March 30, 1988. The
charge alleges that the Company engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
National Labor Relations Act (NLRA or Act).
Based on that charge, the Regional Director for Region 31
of the National Labor Relations Board (NLRB or Board)
issued a complaint and notice of hearing before an adminis-
trative law judge alleging that the Respondent had failed to
bargain in good faith with the Union.
Respondent filed a timely answer to the complaint denying
that it had engaged in the unfair labor practices alleged. Re-
spondent’s answer further alleges two affirmative defenses
explained more fully below.
I heard this matter on October 12, 1988, at Las Vegas, Ne-
vada. Having now carefully reviewed the record, considered
the credibility of the witnesses who appeared before me and
studied the posthearing briefs filed on behalf of the General
Counsel and the Respondent, I conclude that the General
Counsel failed to prove that Respondent engaged in the un-
fair labor practices alleged based on the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pleading
The gravamen of the complaint is that Respondent refused
to bargain with the Union—the representative of Respond-
ent’s new- and used-car salespersons—as the NLRB ordered
by insisting to impasse between January 18 and February 29,
1988, on the inclusion in any collective agreement of an
overly broad management-rights clause. In particular, the
General Counsel asserts that the disputed clause included a
provision reserving to management the right to unilaterally
modify the contractual wage and commission provisions.
In addition the complaint alleges that Respondent, by its
overall conduct in negotiations including its insistence on the
overly broad management-rights provision, failed to bargain
in good faith with the Union.
Respondent denies the specific allegations of the com-
plaint. As an affirmative defense, Respondent alleges that it
concluded an agreement with the Union on February 10
which precludes any conclusion that the parties arrived at an
impasse. Further, Respondent alleges that it had no legal ob-
ligation to bargain with the Union because of the degree of
participation in negotiations by Mark Darata, the Union’s
secretary-treasurer, in contravention of the Board’s Decision
and Order in Sahara Datsun, 278 NLRB 1044 (1986).1
B. Background
Respondent, a Nevada corporation, is engaged in the retail
sale and leasing of motor vehicles from its principal place of
business in Las Vegas.2
The Union, an unaffiliated labor organization with 12
members at the time of this hearing, commenced an effort
to organize Respondent’s new- and used-car salespersons in
1984.3 That effort led to litigation described more fully
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
organization within the meaning of the Act Moreover, the evidence in this case
establishes that it is an organization in which employees participate and which
exists in part to bargain with employers concerning wages, hours, and working
conditions Accordingly, I find the Union is a labor organization within the
meaning of Sec. 2(5) of the Act.
4 As justification for this conclusion the Board found that Darata, on Octo-
ber 19, 1984, had made unsubstantiated assertions to an official of a bank
through which Respondent obtains financing for its customers that Respond-
ent’s managers were allegedly submitting falsified customer credit applica-
tions. In addition, the Board found that on January 25, 1985, Darata published
a newsletter accusing the Respondent’s owners of involvement in prostitution
and the sale of cocaine. At this hearing, Respondent’s counsel testified without
contradiction that Darata had been convicted of a misdemeanor assault on two
of Respondent’s officials.
5 In its brief, Respondent asserts that the Union submitted the proposed
agreement for ratification. Although Geller alluded to a ratification meeting,
he later explained that this meeting was among Darata, Darata’s mother who
performed clerical work for the Union, Russell, and himself. By the time the
meeting occurred, none of these individuals were employed by Respondent.
There is no evidence that the agreement was ever submitted to unit employees
for their consideration or approval.
below and the Union’s status as the bargaining representative
of Respondent’s vehicle sales staff.
The prior case cited above—officially noticed in this pro-
ceeding—reflects that in September 1984, the Union filed a
petition for a representation election among the Respondent’s
new and used car salespersons. An NLRB election in No-
vember 1984 resulted in six votes for, and six votes against,
representation with four determinative challenged ballots.
Subsequently, the representation issues were consolidated
with several pending unfair labor practice cases for hearing
before Administrative Law Judge Gerald Wacknov. Judge
Wacknov concluded in that consolidated proceeding that Re-
spondent engaged in a variety of serious unfair labor prac-
tices, including the unlawful discharge of Darata 2 days after
filing the representation petition. Judge Wacknov further con-
cluded that the unfair labor practices were meritorious objec-
tions to the election.
On the basis of his findings, Judge Wacknov overruled the
challenge to the ballot of Darata. However, he sustained the
remaining challenges and entered a recommended Order pro-
viding that the Union should be certified if it achieved a ma-
jority from the counting of Darata’s ballot.
Judge Wacknov’s recommended Order further provided
that, in the event the Union failed to receive a majority after
counting Darata’s ballot, the representation case should be
dismissed and that the Respondent should be ordered to bar-
gain with the Union pursuant to NLRB v. Gissel Packing Co.,
395 U.S. 579 (1969), and its progeny. This provisional order
was grounded on Judge Wacknov’s conclusion that Respond-
ent’s unfair labor practices were sufficiently egregious and
pervasive to undermine the majority standing enjoyed by the
Union on September 13, 1984, and to preclude holding a fair
second election.
Having concluded that Respondent should be required to
bargain with the Union by one means or the other, Judge
Wacknov nonetheless concluded that Respondent should not
be required to deal with Darata as a representative of the
Union due to misconduct on Darata’s part following his dis-
charge. Judge Wacknov, however, rejected Respondent’s
contention that Darata’s misconduct was sufficiently serious
to preclude his reinstatement as an employee of the Respond-
ent .
Respondent excepted to Judge Wacknov’s conclusion con-
cerning Darata’s fitness for reinstatement. The Board con-
cluded that Darata’s misconduct did preclude his reinstate-
ment as an employee as of October 19, 1984, which made
him ineligible to participate in the November 1984 represen-
tation election. Accordingly, the Board sustained the chal-
lenge to Darata’s ballot and issued the Gissel bargaining
order forthwith. The Board further noted ‘‘that the Respond-
ent should not be required to meet and negotiate with Darata,
and we affirm the judge’s conclusion that Darata is not enti-
tled to act as a union representative.’’4
The Board’s order was subsequently enforced by the court
of appeals on March 3, 1987. Sahara Datsun v. NLRB, 811
F.2d 1317 (9th Cir. 1987).
C. Overview of the Negotiations
Following the judgment of the court of appeals, the parties
commenced negotiations for a collective-bargaining agree-
ment on April 21, 1987. Thereafter, 14 additional meetings
were held. Specifically, in 1987 other sessions occurred on
May 8 and 29; June 11, 12, and 25; July 9 and 30; August
7 and 20; and September 30. In 1988, bargaining meetings
occurred on January 13 and 27, and the final session was
held on February 10.
From April 21, 1987, through July 30, the Respondent’s
principal negotiator was Howard Silver, an associate in At-
torney Kirshman’s office. Attorney Kirshman acted as Re-
spondent’s principal negotiator in all remaining sessions.
Commencing with the August 20 session, Kirshman retained
Mary Whitely, an employee of the Southern Nevada Employ-
ers Association, to take bargaining notes on Respondent’s be-
half. All of Whitely’s typed notes appear in the joint exhib-
its.
The Union’s principal negotiator was Steven Geller, its
president. Geller was present for all sessions except on July
30. Martin Russell, a union steward for Respondent’s sales-
persons, actively participated in all sessions following that
held on May 8.
Although Darata did not participate directly in negotiating
sessions, it is conceded that he prepared many of the Union’s
written proposals and frequently caucused with the union ne-
gotiators following the bargaining sessions. In addition,
Darata prepared and circulated a newsletter to unit employ-
ees concerning the status of negotiations and the personalities
at the bargaining table. Darata also participated in a meeting
to review the proposed contract submitted by Respondent
following the February 10 meeting.5
A Federal mediator participated in all the sessions com-
mencing with the July 30, 1987 meeting.
The Respondent’s method of compensating its salespersons
was one of the central issues in the negotiations. When bar-
gaining commenced, unit employees’ gross pay was deter-
mined by the sum of three items, i.e., hourly wages based
on the statutory minimum of $3.35 per hour; a 25-percent
commission from the profit received for each vehicle sold by
the salesperson, and a bonus payment for the sale of a pre-
scribed number of units or above.
Throughout the negotiations, Respondent, which imports
the bulk of its inventory from Japan, insisted on continued
flexibility in its commission and bonus system to meet a va-
riety of exigencies. Specifically, Respondent argued that the
fluctuating exchange rate between United States and Japa-
nese currency made its costs unpredictable. In addition, Re-
469JACK BIEGGER NISSAN
6 As proposed by Respondent, sales employees were to be paid a commis-
sion which amounted to 25 percent of the amount between the sale price of
a unit (vehicle) and the actual cost of the unit plus a $300 ‘‘pack.’’ A ‘‘pack’’
is essentially dealer preparation expenses. Much of the discussion appears to
have focused on how the actual cost of a unit was computed and whether sales
employees could gain access to that information.
7 According to Askin, she and the Respondent’s parts manager spent ap-
proximately 140 hours in the ensuing weeks compiling the cost information
requested by the Union.
8 The Union’s last proposal provided for a permanent arbitration panel con-
sisting of the Respondent’s owner, another management official, and two
union designated attorneys. Kirshman rejected the proposal after the union ne-
gotiators refused to disclose the names of the attorneys they intended to des-
ignate as panel members.
spondent occasionally increases sales commissions to provide
incentives in connection with special promotions by the man-
ufacturer or to move ‘‘old iron,’’ i.e., vehicles which have
been in inventory for long periods.
At the May 8 bargaining session, the Respondent sub-
mitted a package of contract proposals covering several non-
economic items. To maintain the flexibility it desired in set-
ting commissions and bonuses, Respondent included broad
management-rights language which, Respondent concedes,
allowed management to unilaterally alter the commission and
bonus system applicable to unit employees at any time. The
provision did not apply to the hourly wage rate.
The Union likewise submitted several noneconomic pro-
posals at the May 8 meeting. Their proposals included a
vastly restricted management-rights provision (which clearly
would not have permitted any alteration of a contractual
compensation system), separate provisions limiting or barring
conduct included in the scope of Respondent’s management-
rights proposal, a comprehensive grievance-arbitration provi-
sion, and a dues-checkoff provision.
In the sessions which immediately followed the May 8
meeting, the parties reviewed and debated the various pro-
posals on the table. In sum, the Respondent rejected nearly
all the significant union proposals and introduced an eco-
nomic proposal which called for maintaining the existing
compensation package.
At or prior to the August 20 meeting, Respondent sub-
mitted a comprehensive draft agreement labeled as its ‘‘Last,
Best and Final Proposal.’’ Although modified somewhat
from its May 8 proposal, this draft agreement retained the
management-rights clause permitting the Respondent to uni-
laterally alter the contractual commission and bonus scheme.
In addition, Respondent’s August 20 proposal provided for
a grievance procedure without an arbitration provision. In-
stead, Respondent’s proposed provision relieved the Union of
the contractual no-strike commitment in the event a griev-
ance was not satisfactorily resolved at the final step of the
proposed grievance procedure.
No provision was made in Respondent’s August 20 pro-
posal for any form of dues checkoff.
Prompted by the editor, the parties went through Respond-
ent’s August 20 proposal and initialed those provision on
which there was tentative agreement No agreement was re-
corded on Respondent’s management-rights proposal.
Thereafter, at least a portion of the August 20 meeting re-
lated to the method of computing commissions. Because this
process involves minute and complex detail concerning the
cost of a vehicle to Respondent unfamiliar to Kirshman, he
apparently agreed to make Barbara Askin, Respondent’s
business manager, available at the following session to re-
spond to the Union’s inquiries.6
In the course of the September 30 meeting and the union
negotiators’ exchanges with Askin, the Union made a request
for extensive unit cost information on the 47 or so models
of vehicles the Respondent offers for sale. Respondent
agreed to furnish the information which it estimated would
take 4 to 6 weeks to compile.7 Although the Union requested
that negotiations continue in the meantime, Respondent de-
clined to do so.
The requested information was provided to Geller on De-
cember 9, and, subsequently January 13, 1988, was mutually
fixed as the date for resuming negotiations.
At the sessions on January 13 and 27, most of the time
appears to have been consumed with further detailed ex-
changes between the union negotiators and Askin concerning
the cost information provided, methods of computing specific
commissions, and the Union’s proposal for increasing the
commission to 27 percent or changing the commission struc-
ture to provide for a 20-percent commission on the difference
between the sale price and the actual unit cost without the
$300 pack. Respondent rejected both union proposals to
change the existing commission and bonus system arguing
that it was adequate to attract a qualified sales staff and,
hence, any increase was economically unjustified.
Some attention was focused at these two sessions on the
Union’s demand that the grievance system provide for arbi-
tration as a final step.8 Kirshman continued to reject an arbi-
tration provision as he had consistently done in the past.
Then, as always, Kirshman’s position was grounded on Re-
spondent’s alleged fear that Darata would promote a flood of
grievances with the potential for many costly arbitration pro-
ceedings.
In addition, the Union continued to request a dues-check-
off provision. That too was rejected on the ground that the
Respondent was unwilling to perform any service for the
Union and on the further ground that the Union was not suf-
ficiently responsible financially to indemnify the Respondent
for any liability it might incur in connection with deducting
dues from employee pay.
Both Geller and Russell claim that during the January 13
meeting, Kirshman agreed to delete the objectionable clause
in Respondent’s management-rights proposal which permitted
Respondent to unilaterally alter the commission and bonus
structure notwithstanding the collective-bargaining agree-
ment. Kirshman emphatically denies that he ever agreed to
do so. To the contrary, Kirshman asserts that he repeatedly
reminded the Union’s negotiators that its August 20 proposal,
if accepted by the Union, would provide no guarantee that
the commission and bonus structure provided would remain
the same.
At the conclusion of the January 27 meeting, the parties
agreed to meet again on February 10 In preparation for the
February meeting, Kirshman addressed a letter to Geller
dated February 5 which modified the August 20 proposal
slightly to include language concerning health insurance and
the recognized but unpaid holidays. The letter further notes
agreement on the subject of Christmas and weekly bonuses.
Otherwise, Kirshman’s February 5 letter withdrew Re-
spondent’s proposal for the verification of invoices used to
compute commissions which the Union previously rejected
470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Throughout negotiations the Union repeatedly claimed that it did not re-
ceive letters and proposals from Kirshman and Kirshman complained to the
Union about undated letters
10 A similar charge was apparently filed on February 24 after the Union
failed to receive the agreement as promised by Kirshman. Counsel for the
General Counsel represented that this earlier charge was withdrawn on March
25 because the Union was not in a position to present its supporting evidence
in a timely fashion.
and details at length Respondent’s reasons for rejecting the
Union’s dues-checkoff proposal.
The February 5 letter is silent with respect to any under-
standing about modifying the management-rights proposal as
claimed by Geller and Russell. The letter concludes by advis-
ing that Respondent had made all the movement it intended
to make and that the union negotiators should come to the
February 10 meeting prepared to ‘‘fish or cut bait.’’
The February 10 meeting began with some bickering over
the language of the commission and bonus plan. Whitely’s
contemporaneous notes suggest that the mediator interjected
himself to obtain answers to questions posed by the union
negotiators. After Kirshman asserted that Respondent in-
tended to make no further changes in its position and would
commence implementing its offers to the Union if not ac-
cepted by February 13, 1988, the union negotiators caucused.
When the union negotiators returned, the Respondent’s out-
standing contract offer—according to the testimony of Geller,
Russell, and Kirshman as well as the notes of Whitely—was
accepted.
The union negotiators requested that an agreement be
signed immediately before the February 10 meeting ad-
journed. Kirshman protested. The mediator instructed
Kirshman to draft a final agreement and forward a copy to
the Union and himself after which he planned to schedule
one further meeting to review the actual contract language
and take care of all discrepancies Kirshman agreed to prepare
the document within 2 weeks.
Kirshman transmitted his version of the final agreement by
letter dated February 29 to the Union, to the mediator, and
to an NLRB agent in the Las Vegas Resident Office. Among
other things, Kirshman’s letter invited written comments con-
cerning the draft. The Union claims that it did not receive
the letter containing the final agreement until the last week
of March.9
After reviewing the agreement transmitted by Kirshman,
the Union filed the instant charge.10 There is no evidence
that any Union official expressed any dissatisfaction with the
agreement as drafted to either Kirshman or the mediator.
D. Further Findings and Conclusions
Section 8(a)(5) of the Act provides that it is an unfair
labor practice for an employer ‘‘to refuse to bargain collec-
tively with the representative of his employees.’’ The obliga-
tion to bargain collectively, as defined in Section 8(d) of the
Act, requires of an employer and the employee representative
that they ‘‘meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions
of employment, or the negotiation of an agreement or any
guestion arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by
either party,’’ The mutual duty to bargain collectively ‘‘does
not compel either party to agree to a proposal or require the
making of a concession.’’
The General Counsel claims Respondent did not live up to
its duty under Section 8(a)(5) because it insisted to impasse
on the inclusion in any agreement of the provision in the
management-rights clause permitting it to, among other
things, unilaterally change the contractual ‘‘wage and com-
mission provisions.’’ In addition, the General Counsel alleges
that this other conduct by Respondent was tantamount to sur-
face bargaining, i.e., merely going through bargaining mo-
tions with no real intention of reaching an agreement.
In support, General Counsel correctly asserts that the man-
agement-rights clause here is not unlike that in Tomco Com-
munications, 220 NLRB 636 (1975). In that case, the Board
found that the employer had engaged in surface bargaining
by proposing and rigidly adhering to contract proposals
which were predictably unacceptable because they called for
the union there to abandon significant statutory rights and
duties as the bargaining representative.
At the hearing, the General Counsel specifically eschewed
any legal theory grounded on a conclusion that an agreement
was reached in these negotiations which either party was
compelled to execute under H. J. Heinz v. NLRB, 311 U.S.
514 (1941).
Respondent claims that the General Counsel’s position
lacks merit because an agreement was reached which pre-
cludes finding that an impasse occurred. Moreover, Respond-
ent asserts that it fulfilled its statutory duty inasmuch as it
met for a number of meetings, explained the basis for its
proposals in great detail, provided the Union with extensive
information and made certain concessions requested by the
Union.
I find that the General Counsel’s case lacks merit. The fact
that no impasse occurred precludes a finding that Respondent
violated Section 8(a)(5) of the Act without a basis for finding
that Respondent’s proposals produced a bargaining deadlock
or were illegal on their face, any conclusion here that Re-
spondent violated Section 8(a)(5) would come perilously
close to placing the Board in the role of judging good bar-
gains and bad bargains.
In Hi-Way Billboards, 206 NLRB 22, 23 (1973), the
Board characterized an impasse in the following manner:
A genuine impasse in negotiations is synonymous with
a deadlock the parties have discussed a subject or sub-
jects in good faith, and, despite their best effort to
achieve agreement with respect to such, neither party is
willing to move from its respective position.
None of the witnesses on either side of this case describe
a deadlock situation Rather, both sides agree that on Feb-
ruary 10, an agreement was reached. In view of this evi-
dence, the General Counsel’s impasse theory is imprisoned
by logic.
Thus, by believing the Union’s claim that the agreement
transmitted on February 29 failed to accurately reflect the ac-
cord everyone says was reached because it continued the ob-
jectionable language on commissions and bonuses, and there-
by implicitly, if not explicitly, disbelieving Kirshman’s claim
to the contrary, a finding of an agreement on the Union’s
terms would be in order.
On the other hand, if Kirshman is believed to the extent
that he claims he never agreed to delete the language, and
the Union’s claim to the contrary is thereby implicitly or ex-
471JACK BIEGGER NISSAN
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
plicitly disbelieved, Respondent too should expect a finding
that an agreement occurred on its terms.
In either of the above situations, finding that an impasse
existed would be unreasonable and irrational. Instead, the
case would be controlled by Heinz and one party or the other
could demand the execution of an agreement. But the Gen-
eral Counsel—for whatever reason—does not rely on a Heinz
theory and I am not at liberty to find a violation on that
basis.
If, however, neither side is discredited, then the best that
can be found is a mutual misunderstanding concerning their
agreement because there was no meeting of minds on the
terms of the management-rights clause. But a misunder-
standing does not rise to the level of an impasse.
And where, as here, both sides claim an agreement was
reached, the claim that one side or the other engaged in sur-
face bargaining becomes untenable. If surface bargaining im-
plies that one party is going through the motions of bar-
gaining with no real intention of reaching an agreement, it
is, in my judgment, impossible to reconcile any assertion, as
both sides do here, that an agreement was reached.
For these reasons, I will recommend that the complaint be
dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 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 General Counsel has failed to prove that Respond-
ent violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The complaint is dismissed.