National Casket Company, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1939

12 N.L.R.B. 165 (N.L.R.B. 1939)

In the Matter of NATIONAL CASKET COMPANY, INC. and CASKET
MAKERS UNION 19559
Case No. C-11
SUPPLEMENTAL FINDINGS OF FACT
CONCLUSIONS OF LAW
AND
RECOMMENDATION
April 10, 1939
STATEMENT OF THE CASE
On June 20, 1936, after a hearing, the National Labor Relations
Board, hereinafter referred to as the Board, issued a Decision in this
case 1 in which it found that National Casket Company, Inc., herein
called the respondent, had engaged in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. The unfair labor practices so found consisted in dis-
crimination against seven of the respondent's employees in regard
to hire and tenure of employment, thereby discouraging membership
in a labor organization known as Casket Makers Union 19559, here-
inafter called the Union. The Board ordered the respondent to cease
and desist from such practices, and to reinstate to their former posi-
tions, with back pay, the employees found to have been discriminated
against.
Pursuant to Section 10 (c) of the Act, the Board, on or about
August 18, 1937, petitioned the United States Circuit Court of Ap-
peals for the Second Circuit, herein called the Court, for enforce-
ment of this Order. On or about December 10, 1937, the Board filed
a motion that the case be remanded to itself for further proceedings,
in which counsel for the Board and for the respondent should have
opportunity to adduce evidence and testimony, and to cross-examine
with respect thereto, on the question of the availability of positions
or employment in the respondent's Oneida, New York, plant during
11 N. L. B . B. 963. That Decision contains a statement of the proceedings prior
thereto.
12 N. L. R. B., No. 22.
165
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or subsequent to the period of the respondent's refusal to reinstate
the persons named in the complaint issued by the Board, and for no
other purpose. On December 13, 1937, the Court granted said motion
and remanded the case to the Board for further proceedings in ac-
cordance therewith.
Pursuant to notice, duly served upon the respondent and the Union,
a hearing was held on April 25, 1938, at Syracuse, New York, before
Elliott L. Biskind, the Trial Examiner duly designated by the Board.
The Board and the respondent were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issue stated in the Court's order was afforded to the parties.
During the hearing the Trial Examiner made certain rulings on
the admissitility of evidence, which will be considered subsequently
in this Decision.
On or about July 2, 1938, in pursuance of a Board order, the
Trial Examiner filed his Intermediate Report on the record in which
he found, on the basis of the testimony and other evidence taken at
the hearing, that there were positions or employment available in the
respondent's plant at Oneida, New York, during or subsequent to
the period of respondent's refusal to reinstate the persons named
in the complaint issued by the Board.
On or about July 15, 1938, the respondent filed exceptions to the
Intermediate Report. On September 27, 1938, counsel for the re-
spondent, in support of the exceptions, presented oral argument
before the Board in Washington, D. C. The Board has considered
these exceptions and finds them to be without merit.
Upon consideration of the entire record made in the case, the
Board hereby makes the following :
SUPPLEMENTAL FINDINGS OF FACT
I., AVAILABILITY OF POSITIONS OR EMPLOYMENT
We address ourselves to a consideration of the evidence bearing
upon the sole issue involved in the second hearing, whether there
were positions available in the Oneida plant of the respondent during
or subsequent to the period of respondent's refusal to reinstate the
employees involved in the complaint. Harrington was refused re-
instatement on July 9, 1935, while the rest of the employees involved
were refused reinstatement on or before August 19, 1935. As shown
by the figures contained in Board Exhibits 2-b and 2-c,2 properly
2 Reproduced in the former Decision at pp. 968-9 of Volume 1.
NATIONAL CASKET COMPANY, INC. 167
introduced in evidence at the second hearing, the number of em-
ployees in the departments in which the employees concerned were
employed before their discharge, increased during the period in
question.
Likewise, in Board Exhibit 2-a,3 duly introduced at the second
hearing, is set forth a list of employees hired during the period
immediately preceding and following August 19, 1935, to do sub-
stantially the same work done by the employees discharged. That
there were vacancies for the employees discharged during the period
involved becomes clear from an examination of the testimony of
William A. Knaus, manager of the respondent's plant at Oneida,
concerning the jobs which the new employees were hired to fill.
Classified according to the individual employees involved, the evi-
dence and findings are as follows :
John R. Brooks
John R. Brooks had worked for the respondent for 7 years. His
work consisted of trucking and rubbing. The following men were
hired by the respondent to do work which was the same as or com-
parable to that formerly done by John R. Brooks : Raymond F.
Muller, hired on August 20 as a helper trucker ; John Contarz,
hired on September 12 as a helper trucker; Wellington Fawcett,
hired on September 20 as a trucker; Leland F. Mason, hired on
December 18 as a trucker; and Sidney W. Warren, hired on January
29, 1936, as a helper trucker. John R. Brooks was as qualified as
the new employees to do the work for which they were hired.
Clarence D. Snyder
Clarence D. Snyder, who had been in the employ of the respondent
for over 20 years, was engaged principally in the work of brush
varnishing. However, he also did sandpapering and rubbing. The
following men were hired to do work, the same as or comparable
to that formerly performed by Snyder : Cornelius Crowe, hired on
August 27, for the lumber yard but subsequently transferred to
spray helping; Harry Saltzman, hired on October 4 as a spray
helper; Earl Mattraw, hired as a finisher on October 1; and Fritz
Kreiner, hired October 7 as a finisher and stainer. The work of
staining and finishing is similar to that of varnishing and rubbing
done by Snyder prior to his discharge. Snyder was as qualified as
the new employees to do the work for which they were hired.
George W. Brooks
George W. Brooks had been in the employ of the respondent for
31 years. He worked in the staining and filling department, which
3 Reproduced in the former Decision at p. 969.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he operated on a contract basis. It is evident that the newly hired
employees already mentioned under Snyder 's case did work which
was the same as or comparable to that done by George W. Brooks.
Finishing and staining is the same as or similar to the work which
was formerly done in the staining and filling department . George
W. Brooks was as qualified as the new employees to do the work for
which they were hired.
Leo F. Schmutz
Leo F. Schmutz had been in the employ of the respondent for
15 years. He was a rubber in the varnish department doing touching-
up work. Crowe, Saltzman, Mattraw, and Kreiner, already men-
tioned, were doing work which was the same as , similar or compa-
rable to that which had formerly been done by Schmutz. Rubbing
and touching-up work is similar to staining and fishing. Schmutz
was as qualified as the new employees to do the work for which they
were hired.
Fred W. Corbin
Corbin had been employed by the respondent for 3 years as a cabi-
net maker in the cabinet department . Before his discharge he was
promoted to the job of inspector. The following cabinet makers were
hired by the respondent to do work which was the same as or com-
parable to that done by Corbin : Frank Brewster, hired on September
3; Victor Walzak, hired on October 7; and Barney Walzak, hired on
January 20, 1936 . Corbin was as qualified as the new employees
to do the work for which they were hired.
Anson Harrington
Harrington had been employed by the respondent for 17 years and
for a number of years had been a stock cutter. He was also experi-
enced as a tailer and operator on the stock saw, ripsaw , planer, and
pony planer. The following men were hired to do work which was
the same as or comparable to that done by Harrington : Hubert
Boyles and William Flanagan, hired on July 24 as machine tailers;
and Laurence Klein, hired on August 22 as an operator of machines
on which Harrington was experienced . Harrington was as qualified
as the new employees to do the work for which they were hired.
It is not without significance that Knaus himself had testified that
when Harrington applied for reemployment on or about July 9,
1935, the respondent could "use him."
Rudolph Lechner
Since Lechner had been discharged on July 15, 1935 , the question
of availability of a position for his reinstatement is not material to
the inquiry.
NATIONAL CASKET COMPANY, INC . 169
In addition to the positions already enumerated' which were avail-
able to the employees discharged, there were a number of vacancies
in the yard and kiln departments and one in the shipping depart-
ment, which all of the employees involved, with the exception of
Harrington and the possible exception of John Brooks, were capable
of filling.
The respondent's defense, as articulated in Knaus' testimony, on
the issue of availability of positions for the employees discharged
before the enactment of the Act is twofold. First, some of the new
employees were hired in pursuance of the respondent's policy to give
preference to youth and vitality; and second, others were hired, in
preference to the employees discharged because they possessed pecu-
liar qualifications and expertness in their respective lines.
We shall make an analysis of the evidence on the basis of Knaus'
testimony, comparing the qualifications of the new men hired by the
respondent and those of the men discharged. This testimony was
received subject to the objection of counsel for the Board to its ad-
mission, on the ground that it was not within the purview of the
court order remanding the case for further hearing. In so far as
the testimony concerned, the competency of the old employees to do
the work done by them prior to their discharge, it was clearly not
within the purview of the court order. However, that part of the
testimony which was intended to establish that the new employees
were hired to do work which could not have been done by the old
employees is relevant to the issue of the supplemental hearing. We
will, therefore, admit that part of Knaus' testimony and reverse to
that extent the Trial Examiner's ruling to disregard the testimony
of Knaus.
As to the first ground for giving preference to the new employees,
it is apparent that the alleged policy could not be the real reason
for failure to rehire the employees discharged. Although only, three
of these employees were over 50, many of the employees who are now
doing the work previously done by the discharged employees are
over 50. Tailing machines, a vernacular term for helping in the
operation of a machine, necessitates the possession of speed, agility,
youth, and strength, according to Knaus. "It is where youth plays
a part again, and quickness, because he slows up the operation if he
isn't quick taking it away." Indeed, "Youth is the primary con-
sideration." Older men, however, Knaus admitted, are employed at
tailing machines. Indeed, one of the machine tailers now working
for the respondent has reached the age of 80.
But even in hiring new employees, the policy of giving preference
to youth is apparently not of uniform application. Thus, among the
employees hired, Michael Graszler, employed as a trucker, was 56;
Carl Heuvel, a carver, was 50; and Frank Brewster, a cabinet maker,
170 DECISIONS Ol' NATIONAL LABOR RELATIONS BOARD
was 63 years old. The case of Hugh W. Jones is particularly illu-
minating. He was a "skilled carpenter" hired as a packer, a job
which Knaus describes as needing the following requirements of
strength, e"A packer is a man-he has got to be robust, a man of
robust and good physique so that he can lift one end of a hardwood
casket along with another man, which weighs, at that point, in the
neighborhood of two hundred to two hundred and fifty pounds and
deposits it in a pine box or hardwood box." Jones was 55 years old.
There is no evidence-that Jones had any experience as a packer when
he was hired by the respondent. It is also significant that all of the
employees discharged were younger than Jones.
As to the second ground for giving preference to some of the new
employees, that is their alleged peculiar qualifications and expertness,
the objective evidence negates that as the actual reason for the re-
spondent's failure to reemploy the discharged employees. The
average wage rate in the plant is 50 cents an hour; that of the
employees discharged, with the exception of John Brooks who was
making 45 cents, was 67 to 73 cents an hour; while the new employees
were hired at the rate of 35 to 40 cents an hour. These comparative
earnings certainly do not support the claim to any great skill or
peculiar qualification on the part of some of. the new employees in
comparison with the employees discharged. Knaus attempted to
explain this inconsistency by claiming that the starting day rate
was lower than the average hourly piece rate which applied to the
employees discharged. However, Knaus failed to state what the
average piece rate of the new employees was, if tlxey had been put
on a piece rate. Although the wage rate did not depend upon
seniority, Knaus at first claimed that skill and speed or any other
qualification did not determine what wage rate a worker would
receive. However, he subsequently admitted that those receiving
80 cents an hour were of the highest skill.
At the oral argument before the Board, counsel for the respondent
argued that some of the new employees hired by the respondent were
employed as apprentices, for which positions the employees dis-
charged could not apparently be reemployed. However, the record
of the first or second hearing in the case is devoid of any indication
that an apprentice system existed in the Oneida plant of the
respondent.
The evidence indicates that the employees hired by the respondent
did not possess qualifications of age, strength, or skill which induced
the respondent to employ them in preference to the discharged
employees to do work which was the same as or comparable to that
done by the latter. The employees discharged were as qualified as
the new employees mentioned to do the work for which the latter
were hired by the respondent.
NATIONAL CASKET COMPANY, INC . 171
We therefore find that there were positions available in the Oneida
plant of the respondent during or subsequent to the period of
respondent's refusal to reinstate the employees involved in the
complaint.
We are the less hesitant in reaching this conclusion because when
the employees discharged had applied for reemployment they were
refused reinstatement because of their union affiliation and activities.
When an employer refuses employment to an applicant because of
his union affiliation or activities, it is presumed that a vacancy existed
which the applicant could fill. This presumption of course is re-
buttable, but the burden of negating the existence of such vacancy
is that of the employer.
That vacancies did exist which the employees discharged could
fill is shown by the fact that new employees were hired by the re-
spondent to do work which the employees discharged were at least
equally capable of doing. It is reasonable to infer that these vacan-
cies may have existed for some period prior to the time they were
filled.
It may be, however, that when Knaus on or about August 19, 1935,
refused to reemploy the employees discharged, there were no vacan-
cies for all of them. However, the application for work was by its
very nature a continuous one. Moreover, since Knaus refused to
reinstate them because of their union affiliation and activities, it
would have been futile for the employees discharged to make subse-
quent applications for work. Being futile, such applications could not
be expected to be made. In the exercise of one's rights under the Act,
as under any law, doing futile acts cannot serve as a requirement.
We have repeatedly held that there is no need to make application
for employment where the employer renders the making of such
application futile. Thus, in Matter of Mackay Radio d Telegraph
Company 4 where the employer induced four strikers to believe that
they were blacklisted because of their union activities, we held that
the application of the principle of "first come, first served" to those
employees was a violation of Section 8 (3) of the Act. Likewise, in
Matter of Carlisle Lumber Company," where the employer condi-
tioned reinstatement of the strikers on their renunciation of "any
and all affiliation with any labor organization", we held that no
application on the part of the strikers was necessary, declaring:
To say that because they have not made application to go to
work they were not refused employment would be to place a
* 1 N. L. R. B. 201, enforced in National Labor Relations Board V. Mackay Radio &
Telegraph Company, 304 U. S. 333.
52 N. L. R. B. 248, enforced in National Labor Relations Board v. Carlisle Lumber
Company, 94 F (2d) 138 (C. C. A. 9) 1937, certiorari denied, 304 U S. 575
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
penalty upon them for not doing what they knew would have
proved fruitless in the doing. The respondent's illegal conduct
in publishing the aforesaid notice precluded all possibility of
employment and relieved them of the necessity of making a
formal application. Nor is it an answer to say that they were
striking and would not have applied in any event. That was for
them to decide. Furthermore, under the Act an employee cannot
be required to renounce his union affiliation as a condition of
employment.
Since in the instant case the employees discharged were lulled
into a sense of futility by the respondent when vacancies occurred
which the employees discharged could fill, it became incumbent upon
the respondent to contact them for purpose of an offer of reemploy-
ment. There is no claim that an effort at such contact was made in
this case. There is therefore no issue here whether a reasonable
effort by a penitent employer may not be sufficient to fulfill this
duty.
II. RULINGS ON MOTIONS AND EXCEPTIONS
Mention has already been made that Knaus' testimony will be ad-
mitted as part of the record. However, not much reliance can be
placed by the respondent, in support of its position, on the failure
of the employees discharged to testify at the second hearing to rebut
Knaus' testimony concerning their competency to fill the vacancies.
Their testimony at the second hearing concerning their competency
would have been surplusage and a repetition of -what they had testi-
fied at the first hearing. We have already found them to be capable
of doing the work which they had done before their discharge. The
tables of employment show that the respondent was hiring new em-
ployees to do work which was the same as or comparable to that
performed formerly by the employees discharged. When Knaus
testified that the new employees possessed peculiar qualifications for
the vacancies which the old employees could fill, the discharged em-
ployees could not reasonably testify in rebuttal as to the qualifica-
tions possessed by the new employees. It was not a matter within
their knowledge. But as we have seen, Knaus' testimony concerning
the peculiar qualifications of the new employees collapses under the
burden of its own contradictions and inherent improbabilities.
This brings us to a consideration of the respondent's exception
to the observations of the Trial Examiner dealing with the issue
of Knaus' credibility. The Trial Examiner stated in the Inter-
mediate Report that Knaus was "argumentative and evasive";
that "his demeanor impressed the undersigned as that of a man
intent upon scoring points with little regard for the truth"; that
NATIONAL CASKET COMPANY, INC. 173
"it is not possible to believe Knaus' testimony at its face value. He
was anything but a straightforward witness"; and that he testified
with a "tongue-in-the-cheek attitude." We do not consider such ex-
pressions as improper or indicative of hostility on the part of the
Trial Examiner. Where the issue of a witness' credibility is in-
volved, as in this case, the demeanor of the witness and his manner
of testifying are pertinent to the inquiry. It was, therefore, within
the province of the Trial Examiner, who has had opportunity of
observing the demeanor of the witness, to make observations in his
Report on the matter involved.
Aside from the ruling of the Trial Examiner excluding the testi-
mony of Knaus concerning the new employees' qualifications, we
affirm all his other rulings and deny the motions made by counsel
for respondent at the oral argument before the Board.
THE REM=
We have found that the respondent has discriminatorily dis-
charged Rudolph Lechner. In order to effectuate the purposes
of the Act we shall order the respondent to reinstate him to his for-
mer or substantially equivalent position and make him whole for
any loss of pay he has suffered by reason of his discharge by pay-
ment to him of a sum of money equal to the amount which he nor-
mally would have earned as wages from the date of his discharge
to the date of reinstatement less his net earnings s during said period.
We have likewise found that the respondent has discriminatorily
refused to reinstate the other discharged employees. In order to
effectuate the purposes of the Act we shall likewise order the respond-
ent to reinstate them to their former or substantially equivalent posi-
tions with back pay under the same terms as those mentioned in the
case of Rudolph Lechner. However, their back pay is to begin to
accrue from the date when the last employee was hired in each case
to fill the vacancy.
Upon the basis of the foregoing supplemental findings of fact and
the findings of fact contained in the original decision, the Board va-
cates the conclusions of law contained in said decision and, in their
place, makes the following :
By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received
for work performed upon Federal, State, county , municipal , or other work-relief projects
are not considered as earnings , but, as provided below in the Order, shall be deducted
from the sum due the employee , and the amount thereof shall be paid over to the appro-
priate fiscal agency of the Federal , State, county, municipal , or other government or
governments which supplied the funds for said work -relief projects.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Casket Makers Union 19559 is a labor organization, within the
meaning of Section 2 (5) of the National Labor Relations Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of Rudolph Lechner, Anson Harrington, Clar-
ence D. Snyder, George W. Brooks, Fred W. Corbin, John R. Brooks,
and Leo F. Schmutz, and each of them, and thereby discouraging
membership in the labor organization known as Casket Makers Union
19559, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
RECOMMENDATION
Upon the basis of the foregoing supplemental findings of fact, and
the findings of fact contained in the original decision, and the fore-
going conclusions of law, and pursuant to Section 10 (e) of the Na-
tional Labor Relations Act, the National Labor Relations Board
hereby recommends to the United States Circuit Court of Appeals
for the Second Circuit that the Order of the Board issued by the
Board on June 20, 1936, be modified to read as follows, and as so
modified be enforced.
The National Labor Relations Board hereby orders that the re-
spondent, National Casket Company, Inc., and its officers, agents,
successors, and assigns shall:
1. Cease and desist :
(a) From discouraging membership in Casket Makers Union 19559
or any other labor organization of its employees by discrimination
in regard to hire or tenure of employment or any term or condition
of employment;
(b) From in any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
NATIONAL CASKET COMPANY, INC. 175
(a) Offer to Rudolph Lechner, Anson Harrington, Clarence D.
Snyder, George W. Brooks, Fred W. Corbin, John R. Brooks, and Leo
F. Schmutz, and each of them, immediate and full reinstatement, re-
spectively, to their former or substantially equivalent positions with-
out prejudice to the rights and privileges previously enjoyed;
(b) Make whole said Rudolph Lechner for any loss of pay he had
suffered by reason of the severance of his employment by payment
to him of a sum of money equal to that which he would normally
have earned as wages during the period from the date of the sever-
ance of his employment to the date of such offer of reinstatement,
computed at the wage rate he was paid at the time of such sever-
ance, less his net earnings 7 during said period; deducting, however,
from the amount otherwise due to each such employee, monies re-
ceived by him during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects, and pay over
the amount, so deducted, to the appropriate fiscal agency of the Fed-
eral, State, county, municipal, or other government or governments
which supplied the funds for said work-relief projects;
(c) Make whole the said Anson Harrington for any loss of pay
he had suffered by reason of the failure of the respondent to reinstate
him on July 9, 1935, or thereafter, by payment to him of a sum of
money equal to that which he would normally have earned as wages
during the period from August 22, 1935, when the last person was
hired to do work formerly done by him to the date of such offer of
reinstatement, compensated at the wage rate he was paid at the time
he was discharged from employment by the respondent, less his net
earnings; 7 deducting, however, from the amount otherwise due to
each such employee, monies received by him during said period for
work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount, so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(d) Make whole said Clarence D. Snyder, George W. Brooks, Fred
W. Corbin, John R. Brooks, and Leo F. Schmutz, and each of them,
for any losses of pay they have suffered by reason of the refusal of the
respondent to reinstate them on August 19, 1935, or thereafter, by
payment to each of them, respectively, of a sum of money equal to
that which each would normally have earned as wages during the
period from October 7, 1935, October 7, 1935, January 20, 1936,
January 29, and October 7, 1935, respectively, the dates on which
the last persons were hired to do the work formerly done by each
of them, respectively, to the date of such offer of reinstatement, com-
7 See footnote 6, supra.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puted at the wage rate each was paid at the time each was dis-
charged from employment by the respondent, less their net earnings; 8
deducting , however , from the amount otherwise due to each such em-
ployee, monies received by him during said period for work per-
formed upon Federal , State, county , municipal , or other work-relief
projects, and pay over the amount , so deducted , to the appropriate
fiscal agency of the Federal , State, county , municipal , or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(e) Post notices immediately in conspicuous places in the Oneida
plant, stating (1) that it will cease and desist and take affirmative
action as aforesaid ; and (2) that such notices will remain posted
for a period of at least thirty (30) consecutive days from the date of
posting;
(f) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
MR. DONALD WAxEFrELD Snuff took no part in the consideration of
the above Supplemental Findings of Fact, Conclusions of Law, and
Recommendation.
8 See footnote 6, supra