L. F. Strassheim Co.

National Labor Relations Board - Board Decisions

Jun 3, 1968

171 N.L.R.B. 916 (N.L.R.B. 1968)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. F. Strassheim Company and International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO. Case 9-CA-4476
June 3, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On March 8, 1968, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer 's Decision . The Trial Examiner refused to
consider allegations of certain other unfair labor
practices covered by the complaint or by the
amendments thereto, recommended dismissal
without prejudice as to some of them, and made no
specific recommendation for the disposition of
others. Thereafter, the General Counsel and
Respondent filed exceptions to the Trial Examiner's
Decision and supporting 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 the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith:
1. We agree with the Trial Examiner that
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain collectively with :ie cer-
tified Union as the exclusive representative of the
employees in the appropriate unit.
2. The Respondent admitted at the hearing that
on October 3, 1967, it refused to furnish the Union
with certain requested information,' and on Oc-
tober 4, 1967, without notice to or consultation
with the Union, it announced and initiated wage in-
creases. In addition, Respondent and the General
Counsel stipulated that on December 15, 1967,
Respondent unilaterally initiated, announced, and
granted a Christmas bonus to its employees.' While
finding that Respondent had refused to supply the
Union with the requested information, the Trial Ex-
aminer failed to provide a remedy for this unlawful
conduct or to pass upon the additional 8(a)(5) al-
legations in the complaint, either by dismissal or by
finding violations based upon Respondent's admis-
sions. The fact that an employer contests the validi-
ty of the Board's certification of a labor organiza-
tion as the exclusive collective-bargaining represent-
ative of its employees does not preclude a finding
that any subsequent conduct in derogation of the
duty to bargain is violative of Section 8(a)(5). As
Respondent's refusal to supply the Union with rele-
vant information and its unilateral grant of a wage
increase and Christmas bonus tend to undermine
and disparage the Union in the eyes of employees
in the bargaining unit, we find that issuance of an
order to offset the effects of these unlawful actions
will effectuate the purposes of the Act.'
3. At the hearing the General Counsel and
Respondent stipulated that on September 29, 1967,
after the certification of the Union as statutory bar-
gaining representative, Respondent's vice president,
McLean, told a group of assembled employees that
Respondent would not bargain with the Union.
Although the Trial Examiner stated that the Board
may, on the facts stipulated at the hearing, make
findings of an independent violation of Section
8(a)(1), he dismissed this allegation, without preju-
dice, along with three other allegations of indepen-
dent 8(a)(1) violations denied by Respondent,
without permitting litigation thereof.
The Trial Examiner gave as his reason for
dismissing the independent 8(a)(1) allegations that
the former raised "relatively insignificant minutiae"
and that the latter raised issues which would neces-
sitate a hearing, thus precluding disposition by sum-
mary judgment of the 8(a)(5) allegation that
I The requested information included the name , classification , and wage
rate of each bargaining unit employee , dates of his hire, last increase, and
any transfer , a weekly list of new hires and separations , and copies of all
employee benefit programs , job evaluation systems, production standards
systems, and employee plant rules
2 At the hearing , the Trial Examiner allowed the General Counsel to
amend the complaint by adding, as paragraph 9(f), the allegation that
Respondent unilaterally initiated, announced , and granted the Christmas
bonus on December 15, 1967
3 See, for example , Indianapolis Glove Company, Inc, 167 NLRB 479,
where the Trial Examiner found 8 ( a)(5) violations in both the respondent's
technical refusal to bargain and its subsequent increase in wage rates and
incentive benefits In that case , as here, the parties stipulated that respon-
dent granted the increase without notifying the union, and refused to
recognize the certified union, the Trial Examiner granted summary
judgment based on these stipulations
171 NLRB No. 132
L. F. STRASSHEIM COMPANY
Respondent refused to recognize and bargain after
certification. He espoused the view that the ad-
vantages of the prompt determination of em-
ployees' rights to representation outweighed any
disadvantages inherent in his dismissing the allega-
tions of independent violations of Section 8(a)(1).
While summary judgment is an expedient and ef-
fective procedure for testing the Board's certifica-
tion in court, the existence of such a procedure
does not free a respondent to engage in conduct
hostile to the union and to the Section 7 rights of
employees while such litigation is pending, and
thereby undermine the very purpose of the certifi-
cation. Accordingly, we reject the Trial Examiner's
proposed disposition of these allegations. On the
basis of Respondent 's admission at the hearing that
it informed assembled employees that it would not
bargain with the certified Union, we find that
Respondent violated Section 8(a)(1) of the Act. As
Respondent denied commission of additional acts
alleged to be violative of Section 8(a)(1), we shall
order such allegations be severed from those deter-
mined herein, and that the proceeding be remanded
to the Regional Director for Region 9 to expedi-
tiously arrange for the reopening of the record in
the above-entitled proceeding for a further hearing
before a Trial Examiner for the purpose of taking
evidence bearing upon such allegations.
ADDITIONAL CONCLUSIONS OF LAW
Delete paragraphs 5 and 6 from the Trial Ex-
aminer's Conclusions of Law and substitute the fol-
lowing:
5. By refusing to furnish certain relevant data to
the Union and by unilaterally announcing and im-
plementing the wage increases and a Christmas
bonus , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
6. By the conduct of its vice president on Sep-
tember 29, 1967, in telling a group of assembled
employees that Respondent would not bargain with
the Union, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
various unfair labor practices affecting commerce,
we shall order that it cease and desist therefrom
and take certain affirmative action designed to ef-
917
fectuate the policies of the Act. Nothing herein
contained shall be construed as requiring the
Respondent to revoke any wage increase or Christ-
mas bonus heretofore granted.
Having found that the Respondent failed to bar-
gain with the Union in good faith, among other
things, by refusing to furnish certain data to the
Union and by unilaterally granting wage increases
and a Christmas bonus, we shall order that, upon
request, Respondent furnish relevant requested
data to the Union, and that Respondent, upon
request, bargain collectively in good faith with the
Union, regarding rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
Because of Respondent's failure to bargain in
good faith, its unilateral actions, its refusal to
furnish relevant information regarding wages and
other terms and conditions of employment, and its
official's statement to employees that it would not
bargain with the Union, it is reasonable to consider
that Respondent in the future, unless specifically
enjoined, may deny its employees their statutory
rights not only in these ways but in other ways as
well. Therefore, we shall also order Respondent to
cease and desist from in any other manner interfer-
ing with, restraining, or coercing its employees in
the exercise of their rights graranteed by Section 7
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, L. F. Strassheim Company, Bowling Green,
Kentucky, its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect
to rates of pay, wages, hours of employment, or
other conditions of employment with International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of all its
employees in the following appropriate unit:
All production and maintenance employees of
the Company at its Bowling Green, Kentucky,
plant, excluding all office clerical employees,
professional employees, guards, and super-
visors as defined in the Act.
(b) Unilaterally instituting a Christmas bonus
and other changes in wages, rates of pay, or other
terms and conditions of employment of its em-
ployees in the above-described appropriate unit
without first consulting and bargaining with the
Union, except that nothing herein contained shall
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be construed as requiring the Respondent to revoke
the Christmas bonus or any wage increase it has
heretofore granted.
(c) Refusing to furnish to said labor organiza-
tion , on request , the data described in paragraph
2(b) of this Order.
(d) Telling employees that the Respondent will
not bargain with the Union or otherwise interfering
with the right of employees to bargain collectively
through representatives of their own choosing.
(e) In any other manner interfering with,
restraining , or coercing employees in the exercise
of their right to self-organization , to form , join, or
assist any labor organization , to bargain collectively
with representatives of their own choosing, to en-
gage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of the employees in the above-
descrived appropriate unit with respect to rates of
pay, wages , hours of employment , and other terms
and conditions of employment , and, if an un-
derstanding is reached , embody such understanding
in a signed agreement.
(b) Upon request, make available to the Union
data concerning the name, classification , and wage
rate of each employee in the bargaining unit; dates
of his hire , last increase , and any transfer ; a weekly
list of new hires and separations; and copies of or
complete information concerning all employee
benefit programs , job evaluation systems, produc-
tion standards systems, and employee plant rules.
(c) Post at its plant in Bowling Green , Kentucky,
copies of the attached notice marked "Appendix."4
Copies of said notice, to be furnished by the Re-
gional Director for Region 9, after being duly
signed by the Respondent 's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for Region 9, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words " a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order."
IT IS FURTHER ORDERED that the unresolved al-
legations of 8(a)(1) violations be, and they hereby
are, severed, that the record in the above-entitled
proceeding be reopened, and that a further hearing
be held before a Trial Examiner for the purpose of
taking evidence on the allegations of the complaint,
as amended, with respect to the Respondent's inde-
pendent violations of Section 8(a)(1).
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director for Region 9 for
the purpose of arranging such further hearing, and
that the said Regional Director be, and he hereby
is, authorized to issue notice thereof.
IT IS FURTHER ORDERED that , upon conclusion of
such supplemental hearing , the Trial Examiner shall
prepare and serve on the parties a Supplemental
Trial Examiner 's Decision containing findings of
fact , conclusions of law , and recommendations
based upon the evidence received pursuant to the
provisions of this Order, and that, following the ser-
vice of such Supplemental Decision upon the
parties, the provisions of Section 102.46 of the
Board 's Rules and Regulations shall be applicable.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively
in good faith with International Association of
Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining
representative of our employees, by refusing to
provide it with information relevant to bargain-
ing; nor will we unilaterally grant a Christmas
bonus or wage increases without consulting
with said Union ; except that nothing herein
contained shall be construed as requiring us to
revoke any Christmas bonus or wage increase
that we have heretofore granted.
WE WILL NOT tell employees that we will not
bargain with the International Association of
Machinists and Aerospace Workers,
AFL-CIO, or in any other manner interfere
with , restrain , or coerce our employees in the
exercise of their right to self-organization, to
form , join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing , to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain
from any or all such activities.
L. F. STRASSHEIM COMPANY
WE WILL bargain , upon request , with Inter-
national Association of Machinists and
Aerospace Workers , AFL-CIO, as the exclu-
sive bargaining representative of all employees
in the bargaining unit described herein with
respect to rates of pay, hours of employment,
or other conditions of employment , and em-
body in a signed agreement any understanding
reached . The bargaining unit is:
All production and maintenance em-
ployees of the Company at its Bowling
Green , Kentucky , plant , excluding all of-
fice clerical employees , professional em-
ployees, guards, and supervisors as defined
in the Act.
WE WILL, upon request, make availabe to
the Union data concerning the name, classifi-
cation , and wage rate of each employee in the
bargaining unit ; dates of his hire, last increase,
and any transfer ; a weekly list of new hires and
separations ; and copies of or complete infor-
mation concerning all employee benefit pro-
grams, job evaluation systems, production stan-
dards systems , and employee plant rules.
L. F. STRASSHEIM
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, Room 2407 , Federal Office Building, 550
Main Street , Cincinnati , Ohio 45202, Telephone
684-3686.
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: Admitting its
refusal to bargain, the Company here would test the
Board's procedure and certification of the Union
on September 19, 1967, as the exclusive collective-
bargaining representative of all of the employees in
the unit. The facts of appropriate unit, certification,
and request and refusal to bargain are admitted.
The charge was filed herein on October 13,
1967; the complaint , as amended , issued on
December 1, 1967. The case was tried before me at
Bowling Green, Kentucky, on February 1, 1967.
Pursuant to leave granted to all parties , a brief has
919
been filed by the Company. The Company's motion
to correct record is denied. While the items
covered by subpenas were sought in the instant
case , 9-CA-4476, they relate to the representation
proceeding and are thus "materials in Case Number
9-RC-6968."
In addition to violation thereby of Section
8(a)(5) and (1) of the National Labor Relations
Act, as amended, 73 Stat. 519, the complaint, as
amended, alleges that at the time of or since the
request or refusal to bargain the Company has
further violated Section 8(a)(1) by telling em-
ployees that the Company would not bargain with
the Union and thereafter threatening two em-
ployees with discharge because of their union ac-
tivities.
The facts concerning the Company's status as a
Wisconsin corporation, the nature and extent of its
business, and its engagement in commerce within
the meaning of the Act are admitted; I find and
conclude accordingly. I also find and conclude that,
as admitted, the Union is a labor organization
within the meaning of the Act.
On or about September 25, 1967, the Union
requested the Company to recognize and bargain
with it as collective-bargaining representative for
the employees in an admittedly appropriate unit,
and that it submit certain described information to
it. The Company thereafter refused, claiming that
the Board's certification of the Union was void for
various reasons as stated and that the Company was
under no legal obligation to bargain or to submit
the requested information.
The Company's position is based on the conten-
tion that the Union's conduct during the election
campaign was improper and that the Board's
procedure was invalid; and that a hearing was
required in the instant proceeding. The Company's
contention, and arguments in support thereof, was
considered in the representation case and was there
rejected; no matters in connection therewith have
here been offered for consideration which were not
or could not have been presented in the representa-
tion proceeding.
It is neither my function nor my right to review
the Board's determinations. Accepting its certifica-
tion, and the request and refusal to bargain, as well
as the refusal of the requested information being
admitted, I would find a refusal to bargain in viola-
tion of Section 8(a)(5) and (1).' Although these
facts had previously been declared and the Com-
pany's rights under earlier exceptions were fully
preserved, the Company was again given full oppor-
tunity to state its position and to detail alleged er-
rors by the Regional Director and the Board in the
representation proceeding.
But what is normally made the subject of a mo-
tion for summary judgment without a trial was here
' Realist, Inc , 142 NLRB 573, enfd 328 F 2d 840, cert denied 377 U S
994
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complicated by the General Counsel's inclusion of
two items of so-called independent violation of Sec-
tion 8(a)(1): that the Company told employees of
the refusal to bargain charged to it, declaring that it
would not bargain, and that it thereafter threatened
two employees, as noted.
The answer declares as an additional reason for
hearing on the representation issues the fact that a
hearing must be held on the issues of independent
interference. As I pointed out at the hearing, my
concern is not with the wisdom or advisability of
the General Counsel's procedure. But employees'
rights to representation are involved as is the Com-
pany's right to a prompt decision on the questions
which it has raised in the representation case and
here with respect to the alleged refusal to bargain.
My concern is with prompt determination of those
rights without delay on account of relatively insig-
nificant minutiae. I further noted at the trial that
the delay and'expense involved in a trial might have
been avoided if the bargaining issue were suscepti-
ble to a motion for summary judgment. My sug-
gestion that the General Counsel move to withdraw
his allegations of independent violation of Section
8(a)(1) having been rejected, I dismissed those al-
legations without prejudice.'
This is a procedural matter. I need not say that I
would discourage such practice by the General
Counsel. But to the extent that I (or the Board)
may control our trial procedure, I would not reward
the practice by an attitude of let's-take-it-as-long-
as-we're-here. We should not be "here"; and the
rights of those most intimately involved are still to
be considered. Were I to wait for the Board to de-
cide the procedure to be followed, it would be too
late for decision on the question as it here arose:
Board action would necessarily be subsequent to
the trial and consequent delay. Nor has there been
an interim appeal from my ruling at the trial to
forestall issuance of the instant decision.
I am mindful of the fact that the General Coun-
sel, and not a party, determines what issues are to
be presented to the Board.' But whether an issue
once presented must be passed upon by the Board
is another matter. Witness, for example, the
Board's right to dismiss and defer to arbitration, or
otherwise leave the parties to a remedy under con-
tract without itself passing on the issues presented
to it.' In the instant case the dismissal has been
without prejudice; a hearing, if held, can cover
items which the General Counsel proposed to add
and still other violations which he told us are occur-
ring: the implication being that, given time, there
would be an unfolding panorama of violations. The
desideratum of speedy determination of respective
Should the Board decide to encourage or permit the procedure fol-
lowed by the General Counsel, it may on the facts stipulated at the trial
make findings of independent violation of Section 8(a)(1)-"as the Trial
Examiner has indicated "
rights where bargaining is sought and awareness in
procedure point to the practice here followed. The
General Counsel may, himself, without exception,
accept the ruling when it is presented to him.
My reasons for dismissal were modified, but only
slightly so, by the Company's admission of the facts
alleged concerning independent interference. The
objection remains to holding a hearing on other
facts (denied and placed in issue by the Company)
alleged and hopefully to be included in amend-
ments offered by the General Counsel at the hear-
ing; and basically to scheduling a hearing under the
circumstances. With no reflection on the General
Counsel, I do not believe that he or anyone should
play ducks and drakes with the Board's processes.
As to the new matter urged by the General Coun-
sel in proposed amendments to the complaint, we
could reasonably anticipate claims of surprise with
respect to each new item and consequent postpone-
ment or other delay especially since the General
Counsel promised that he would take very little
time with proof of such items; the Company would
have correspondingly little time to hear and
prepare to meet those items.
The General Counsel, if not always his represent-
atives, certainly considers the public relations as
well as the technical aspect of his moves. Where
the immediate necessity for action does not clearly
appear, I would not, since the conduct and effect of
a trial are my own concern and responsibility, ex-
acerbate the outraged feelings of the Company as
they were apparent to me, whatever the basis or
lack of basis for such feelings. That time was spent
in discussing in detail the independent interference
alleged and the additional items offered by amend-
ment is to be regretted. But if the greater waste is
to be avoided in the future, a complete record in
that respect was necessary in view of the novelty of
the procedure and the dismissal.
I would not intrude on functions which are not
mine . Indeed, I may not and do not offer gratuitous
advice to the Board, or to my colleagues. But to the
extent that the General Counsel's policies affect my
own and the Board's functions, I do presume to
offer the suggestion that cases which apparently
lend themselves to disposition by a motion for sum-
mary judgment for refusal to bargain after certifica-
tion be not, without sufficient reason, cluttered up
with other issues which demand a hearing. It may
even be that my procedure at the hearing con-
stituted one of the "decisive actions to improve ...
internal case-handling procedures" shortly
thereafter called for by Chairman McCulloch.5 Cer-
tainly if "the harmful consequences of delay may
be especially harsh" in 8(a)(5) cases, I have at-
' ! U E v N L R.B. [Neco Electrical Products Corporation], 289 F 2d
757, 762 (C.A.D C )
Spielberg Manufacturing Company, 112 NLRB 1080, 1082
` Federal Bar Association and the George Washington University Na-
tional Law Center Labor Relations Institute, February 15, 1968
L. F. STRASSHEIM COMPANY 921
tempted to avoid delay while preserving the rights
of all concerned.
It is clear that the question of company subpenas
was covered by the Regional Director and the
Board 's Decision in the representation proceeding.
These were now new in form only and to the extent
that they were referred to me. I granted the mo-
tions to quash the subpenas.
Also, as noted, the Company has maintained that
a hearing on the General Counsel's allegations of
more recent interference in violation of Section
8(a)(1) could readily and should be expanded to
take testimony on the refusal-to-bargain issue. A
hearing, if held, on independent interference would
not warrant what, as indicated above, is not other-
wise warranted; but in any event we received no
testimony.
The Company further objected that the dismissal
of the 8(a)(1) allegations was without prejudice.
The possibility of renewal of these allegations is not
sufficient reason for postponing determination of
the main issue, especially since the General Coun-
sel was already seeking to add allegations by
amendment and if, as he told us, the independent
violations have continued so that further allegations
might later be added.
Lest what is clear on the record be misun-
derstood, misconstrued, or overlooked, I also point
out that counsel for the Company voluntarily
limited his offer of proof as he realized that the
facts which he cited were covered in the Regional
Director 's Decision and the Board 's Decision, to
which he had taken exception.
Upon the basis of the entire record in the case, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. International Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organiza-
tion within the meaning of the Act.
2. All production and maintenance employees of
the Company at its Bowling Green, Kentucky,
plant, excluding all office clerical employees,
professional employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. The Union was, on September 19, 1967, and
at all times since has been, the exclusive bargaining
representative within the meaning of Section 9(a)
of the Act of all employees in the aforesaid unit for
the purposes of collective bargaining.
4. By refusing, since October 3, 1967, to bargain
collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, the Company has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
5. By such refusal to bargain, thereby interfering
with , restraining , and coercing its employees in the
exercise of rights guaranteed in Section 7 of the
Act, the Company has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce, within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publica-
tion. ]