Mill and Smeltermen Union, Local 16A

National Labor Relations Board - Board Decisions

Mar 20, 1968

170 N.L.R.B. 578 (N.L.R.B. 1968)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mill and Smeltermen Union , Local 16A, United
Steel Workers of America and Charles J. Naeseth
and Lester M. Naeseth . Case 19-CB-1196
March 20, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On October 20, 1967, Trial Examiner Howard
Myers issued his Decision in the above-entitled
proceeding, finding that the Respondent Union had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision.
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 Respondent's excep-
tions, and the entire record in the case, and finds
merit in the Respondent's exceptions. The Board
therefore adopts the findings and conclusions of the
Trial Examiner only to the extent that they are con-
sistent with this Decision.
The facts are full stated in the Trial Examiner's
Decision. In brief, two of the Employer's spray
painters (Jones and Koehnstedt) refused to paint a
smokestack because they felt it was unsafe and
should be classified as a higher paying job. They
grieved to Respondent Union about the matter, and
Respondent Union and the Employer met on Oc-
tober 8, 1966, in the attempt to settle the dispute.
They were unable to resolve the dispute and the
Employer informed Respondent that, if Jones and
Koehnstedt did not paint the stack, it would put the
job up for bids. Shortly thereafter, Respondent did
post the job, relieved Jones and Koehnstedt of their
spray painting jobs, and returned them to their
former positions as carpenter helpers, as a result of
which they lost certain seniority and fringe benefits.
About October 25, employee Lester Naeseth in-
formed Respondent that he intended to check on
the number of bids that had been submitted for the
spray painting jobs. Respondent advised Lester
Naeseth not to seek the job. Further, Respondent
posted a leaflet on the bulletin boards in the plant
which advised the employees of the dispute over
the spray painting jobs and urged all of its members
to "turn down the `stack' spray painting."
Nevertheless, Lester Naeseth and his brother,
Charles, the Charging Parties herein, submitted
bids for and were awarded the spray painting jobs.
Approximately a week after they commenced the
spray painting jobs, the Naeseth brothers were
visited by representatives of Respondent..bn the
Employer's premises. Respondent's representatives
wanted to know why they accepted the spray paint-
ing jobs, informed them the matter was still in
dispute, and that if Respondent won the grievance,
they not only would lose the spray painting jobs but
would lose their seniority in their old departments
under the collective-bargaining agreement since
they would have been out of such departments for
more than 30 days. Respondent's business agent
then stated, in effect, that Respondent would get
the Naeseth brothers "off the job, one way or the
other."1
The complaint alleges that by this single, isolated
remark Respondent violated Section 8(b)(1)(A)
of the Act. In his brief to the Trial Examiner, the
General Counsel admitted that "it was within the
Respondent's rights to get the Naeseth brothers off
the job through the grievance procedure or any
other legal means" but contended that the remark
"was all encompassing " and "encompasses both
legal and illegal methods." The Trial Examiner ap-
parently agreed with the General Counsel's reason-
ing since he found, without giving any reason, that
the "remark was clearly threatening and coercive"
and "[a]s such it was violative of Section
8(b)(1)(A) of the Act. . . ." We disagree and hold
that this single remark is too ambiguous to support
a finding of a violation of Section 8(b)(1)(A). Ac-
cordingly, we shall dismiss the complaint in its en-
tirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed.
' The Trial Examiner credited the Naeseth brothers that this remark was
made Respondent excepts to this credibility resolution by the Trial Ex-
aminer However , as the clear preponderance of the relevant evidence does
not persuade us that the Trial Examiner 's resolution of this credibility find-
ing is incorrect , we will not overrule it Standard Dr, Wall Products, Inc , 91
NLRB 544, enfd 188 F 2d 362 (C A. 3 )
170 NLRB No. 71
MILL & SMELTERMEN UNION , LOCAL 16A
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner: This proceed-
ing, with the General Counsel of the National
Labor Relations Board, herein respectively called
the General Counsel' and the Board, and Respon-
dent'-' represented by counsel, was heard before me
at Great Falls, Montana, on August 1 and Sep-
tember 6, 1967, upon a complaint dated June 20,
1967, issued by the General Counsel through the
Director for Region 19 (Seattle, Washington), and
Respondent's amended answer, dated July 15,
1967.
The complaint, based upon a charge filed jointly
by Charles J. Naeseth and his brother, Lester
Naeseth on February 27, alleged, in substance, that
Respondent violated Section 8(b)(1)(A) of the Na-
tional Labor Relations Act, as amended from time
to time, herein called the Act.'
Upon the entire record in the case,' and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF THE EMPLOYER
HEREIN INVOLVED
The Anaconda Company, herein called Anacon-
da, a Montana corporation, has, and at all times
material had, its principle offices and place of busi-
ness at Butte, Montana, where it is, and at all times
material has been, engaged in the extraction and
processing of copper bearing ore. In the course of
its business operations, Anaconda annually ships
metal products valued in excess of $50,000 directlys
to customers located outside the State of Montana.
Upon the basis of the foregoing undisputed facts,
I find, in line with established Board authority, that
Anaconda is, and at all times material was, engaged
in commerce or in a business affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.6
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization admitting to
membership employees of Anaconda.
' This term specifically includes counsel for the General Counsel appear-
ing at the hearing
2 The name of Respondent appears herein as corrected at the hearing
' As to the unfair labor practices , the complaint alleged that Respondent
violated Section 8(b)(1)(A) of the Act when on or about November 10,
1966, J P Mooney, a Respondent agent, told Lester Naeseth and Charles
J Naeseth that unless they ceased the spray painting work they were doing
for their Employer, The Anaconda Company, which job was then the sub-
ject matter of a grievance dispute between said Employer and Respondent,
"We will get you off the job one way or another "
' The briefs filed by the General Counsel and by Respondent's counsel
on September 26, 1967, have been carefully read and considered
5 Although Anaconda operates mines and smelters in several States and
III. THE UNFAIR LABOR PRACTICES
A. The Sequence of Events
579
Howard Jones went to work at Anaconda's Great
Falls, Montana, smelter in 1955. Jones initially
worked in the smelter's electrolytic, copper refinery
and then in 1956 was transferred to its carpenter
shop as a spray painter.
Wallace Koehnstedt was first employed at the
Great Falls smelter in 1957 in the electrolytic
copper refinery. In 1961, Koehnstedt was trans-
ferred to the carpenter shop as a carpenter helper.
Koehnstedt remained a carpenter helper until 1964,
when Abbey Gray,' the superintendent of the car-
penter shop, offered him a fob as a spray painter.
Koehnstedt accepted and immediately went to
work at this higher paid, higher classified, bracket
job.'
On October 6, 1966, Gray instructed Jones and
Koehnstedt to set up the necessary rigging and scaf-
folding preparatory to painting the 126-foot zinc
dryer smokestack the following day.'
During the course of the rigging and scaffolding
operations, Jones and Koehnstedt noticed that the
top of the zinc dryer stack had been "rusted out" to
the extent that light could plainly be seen coming
through the "rusted out" portions by a person
standing on the ground. Jones and Koehnstedt re-
ported this condition to Gray, who in their presence
inspected the stack.
While the three named persons were inspecting
the stack, or shortly thereafter, Jones and Koehn-
stedt asked Gray to "up-grade" this particular
painting job so that they would receive more money
for it.10 Gray, apparently without making any reply
to the request for more money, left Jones and
Koehnstedt and consulted with one of his super-
visors. Upon his return for this consultation, Gray
told Jones and Koehnstedt that he could not
comply with their request and then suggested that
they "get a hold of" their Union. Later in the day
Jones and Koehnstedt went to Respondent's
headquarters and filed a joint grievance.
On October 7, the day following the incident
referred to immediately above , a meeting was held
in the office of Charlie Hill, the general superinten-
dent of the Great Falls smelter; at which Respon-
dent was represented by Jones, Koehnstedt, Arthur
in foreign countries ( 116 NLRB 116 1 ) its Great Falls, Montana , smelter is
the only one here involved
6 See, for example, The Anaconda Company, 116 NLRB 1161
' Also referred to in the record as Albert Gray,
6 In 1957, Koehnstedt was offered, but declined, a spray painter's job
9 Several other stacks were also to be painted but Respondent main-
tained at the hearing that Jones and Koehnstedt were not asked to paint
them
10 Jones testified that he thought they used the expression, "Risk pay"
when requesting more money He also testified that he would not have
painted the stack in question even if the job was "up-graded" and he
received more money performing it because it was unsafe to paint the top
due to its " rusted out" condition
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0. Clausen , Respondent 's financial ' secretary and
business agent , J. P. Mooney , staff representative of
United Steel Workers of America and assigned by
said organization to handle Respondent's
grievances - with Anaconda, and by Shop Steward
William Tweedie. The Company was represented
by Hill and Jack Davis, the Great Falls smelter's
maintenance engineer . According to Mooney the
following transpired at said meeting:
Of course, the Company was reluctant to
discuss the question of the hazardous , operation
that we were-talking about. They preferred to-
talk about , instead , that they wanted these guys
to paint these stacks and we said it is one thing
about painting stacks but this situation is un-
safe. We talked about some methods of trying
to resolve this problem; some other way of
painting these other stacks than using this
boatswain 's chair and hanging it up on top of
the stack and they took the position that these
guys were going to paint this stack there. Mr.
Davis made it very plain that if the guys stay
here they are going to paint that,stack, that's
all. We adjourned the meeting when they took
the position that if they stay there they are
going to paint- the stack. We couldn't resolve
the issue of it so we adjourned the meeting.
On October 8, the day following the above-
described meeting in Hill's office , Clausen and Mo-
oney were invited by Leonard Powell, Great Falls
smelter 's plant manager , to come to his office. Re-
garding this meeting , Mooney testified:
It was my understanding that he was going to
give us an answer on some public grievances
that had been pending. That is what I un-
derstood that we were going downtown to, get
his opinion on some pending grievances, and
he did talk'a-little bit about the grievances but
not very much. He said he really wanted to talk
to- us about this spray painting job and stack
painting . He said that these guys , these spray
painters are going to have to paint that stack
and we said , well, if they contend it is unsafe-
I pointed out that Brother Tweedie, whose
judgment I relied on , said the employees, in-
volved said that this was an .unsafe condition
and that we felt they shouldn't be forced into
this position if this was unsafe . We told him we
thought he ought to take a good look at this
thing . This was the kind of thing we said they
had said . He said well , tell them what we are
going to do . We are going to post that job and
if these guys don't want to do it we will get
somebody else to do it. We will post that job
and we are going to bring some people in, put
them on the spray painting job, and we are
going to take them and put them ahead of
these guys on the seniority , and those guys ate
going to take a demotion as a result of that. At
this point we made it very clear to Mr . Powell
that if they do this we are going to have a
default, that's all. This union will not stand still
and have you demote these people and take
away their seniority because they decline to do
the work they seem to feel is unsafe . If you go
through this procedure , then we will have to
file grievances , that 's all there is to do. .
When he said they were going to post it we
told them that in our opinion , the Union's
opinion , that he had--no right to post this job,
there was no vacancy in this department. If he
wanted to create a job of stack painting or
steeple jack work or something of this type,
then we could talk about the-posting or the
procedure for filling that ; but there was no-
vacancy and in posting this he would be creat-
ing a problem because this would be a viola-
tion of the contract.
Mooney's testimony on direct examination con-
tinues:
Q. Did- you have some provision in your
contract for the establishment of new jobs?
A. Yes.
Q. At that time was there any arbitration
pending concerning the creation of new jobs
between the Union and the Anaconda Com-
pany?
A. Yes, there was an arbitration pending at
that time and since has been ruled upon by the
arbitrator wherein the job' was not in operation
when we signed the 1964 agreement, and the
Company -proceeded to remove this particular
piece of equipment and change the rate and we
objected on the grounds that this was-steeple
jack equipment -and it paid a particular rate
,prior to the settlement of, the contract and
prior to the settlement of the rates while it was
,actually in operation but the job rate should
apply, and the Company said no, that,since the
rate of that particular job was not in operation
at the time of signing the contract it was' not
binding and they didn't abide by it, and they
proceeded to set the different rate for this job.
Q. The position, then that the Union took
with reference to the steeple jack work was the
same position that the Company had taken in
reference to this other piece of equipment?
A. Yes. Since the steeple jack work as such
had not been performed for several years and
was not normally part of , the regular duties -of
spray painters as such at the time ofthe signing
of the contract then in effect, then-in our
opinion this justified the creation of a new job
and the negotiation of a proper rate for'such a
job.
The upshot of the matter was that Jones and
Koehnstedt were immediately relieved of their
spray painting jobs and were'returned to -their car-
penter helper jobs with the corresponding loss of
certain seniority and certain fringe benefits.
The two spray painting jobs -were posted shortly
after October-8 by Anaconda, and the Great Falls
MILL & SMELTERMEN UNION, LOCAL 16A 581
smelter employes were invited-to bid-for said jobs.
About mid-October, the Charging Parties herein,
Charles J. Naeseth and Lester Naeseth, submitted
their bids for the spray painting jobs vacated by
Jones and Koehnstedt. The Naeseth brothers were
awarded the jobs. Lester commenced his employ-
ment as a spray painter in October and Charles on
November 2.
Respondent posted on the bulletin boards located
within the smelter ,a "Bulletin Information" leaflet,
dated October 24, 1966, the pertinent portions of
which reads as"follows:
Spray Painters: For many months the Union
and the Company have been at odds over the
issues of protective clothing, safety shoes,
gloves, working conditions, and upgrading of
the spray painters job. These issues were
created, in part , resulting from certain types of
paint being used by the Company. As an exam-
ple,- the label of one type of paint reads in part
as follows:
... IF SWALLOWED ... CALL A PHYSICIAN. .
. AVOID PROLONGED OR REPEATED CONTACT
WITH SKIN AND BREATHING- OF VAPOR OR
SPRAY MIST ... WEAR PROTECTIVE
CLOTHING AND GLOVES ... WORK CLEANLY
AND REMOVE MATERIAL FROM' SKIN
PROMPTLY AND COMPLETELY ... DO NOT
WEAR CONTAMINATED CLOTHING, SHOES
AND GLOVES .. .
The Company has been real hard nosed
about these problems. They have refused to
work out a satisfactory solution to the
problems. They have refused to upgrade the
spray painters job.
Recently the Company attempted to force
the spray painters to paint-the stacks above the
building. The spray painters refused on the
grounds that this was not part of their regular
work, plus the fact that it was unsafe and that
they were "afraid". We understand that the
Company has now posted the jobs and are try-
ing'to get other employees to take the "stack"
painting and undercut the position of the
spray painters.
We understand that some of the men have
bid on this "stack" spray painting job. We
would like to suggest, therefore, that all of our
members turn down the "stack" spray painting.
We urge you to support the position of the
spray painters and your Union in its' efforts to
get justice and decent working conditions for
the spray painters.
About 4 or 5 days prior to assuming his spray
painting duties, but before bidding for the job,
Lester Naeseth went to Respondent's headquarters
and during the course of -a conversation with
Clausen, Naeseth stated that he intended to check
on the number of spray painting bids which had
been submitted. Clausen replied by advising
Naeseth not to seek the job. Naeseth ignored
Clausen's advice and went to the smelter that day
and submitted his bid.
As noted above, Lester Naeseth began spray
painting on October 31 and his brother, Charles,
started on November 2.
Charles Naeseth testified that on November 10,
while he and his brother were working in the smel-
ter's central garage, Clausen, Mooney, and another
Respondent official," came into the garage12 and
that the following ensued:
A. Well, when [they] first come in, Clausen
said why did we take the job and we, talked for
a little bit, and I said, "Well, I didn't=want to
see .anybody else with less seniority than me
come into the spray painter 's job , because I
was working swing shift at the time and I
figured I would be entitled to a day shift job,
just as well as a guy younger than me, so that is
why I took the job." And we talked a little
while longer, and they told ^ us we shouldn't
have taken this job, because we were going to
lose -our department seniority, we'd have to go
back as a laborer, and this job wasn't- open for
bid, because the price on the steeple jack
climbing, as they called it, painting of smoke
stacks, wasn't open for bid, and the permanent
spray painters didn't have that job. But they
had painted- the stacks years before that-,
several years before that-
_Q.. (By Mr. McCarthy)" Can you recall
what else was said at that time?
A. We talked probably for a few more min-
utes and then they said, "Well, if you don't
turn the job down. we will get you off the job
one way or the other."
Q. Do you recall who said that?
A. Mr. Mooney was the one I recall said
that. And then I said, well, I wouldn't, I
wasn't going to turn the job down. And we
got to talking a little while longer, and we
were kind of talking back and forth, and then
Jack Davis walked by the door and-
TRIAL EXAMINER: Who is Jack Davis?
THE WITNESS: Jack Davis is the boss at
Anaconda.
A. (Continuing) -and I asked him-
Q. (By Mr. McCarthy) (Interrupting) When
you spoke to Mr. Davis, did you move away
Later identified as Larry Dormandy, ajob steward.
Clausen, Mooney, and Dormandy were on their way to a zinc leach de-
partment grievance meeting, and the three stopped at the garage Dorman-
dy had no interest in the spray painting , Respondent Anaconda grievance,
and, in fact, prior to this November 10 incident Dormandy knew nothing of
its details
" Counsel for the General Counsel
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Mr. Mooney and Mr. Clausen or were
they in the same area with you?
A. Davis kind of walked in the same area,
we were all together, a distance of approxi-
mately 12 feet.
Q. Were you speaking in normal conversa-
tional tones?
A. Yes. Then I asked him, "What do you
think of these guys trying to tell us to turn this
job down?" And, then, either Clausen or
Mooney, I don't know which one it was, we
talked to Jack Davis about the seniroity, losing
our department seniority if we had to go back,
and Jack Davis made the statement we'd lose
our department seniority if we had to go back.
He didn't say we were going to go back, but he
said if we had-to go back we'd lose our depart-
ment seniority. And shortly after that, why,
Clausen and Mooney and this other -guy said,
"Well, think it over boys," and they went on
their way, they left the central garage.
Lester Naeseth's version of the above-referred-to
November 10 episode is substantially in accord
with his brother's.
Mooney testified that during the course of the
aforesaid November 10 conversation, Clausen ex-
plained in great detail to the Naeseth brothers that
if Respondent was successful in its grievance over
the spray painting jobs, they would lose all their de-
partmental seniority unless they returned to their
respective department prior to the date fixed by the
then existing collective-bargaining agreement
between' Respondent and Anaconda; that Davis' ad-
vice was solicited on this point; and that Davis con-
curred in Clausen 's interpretation of the contract
provision, except that Davis stated that he was posi-
tive as to the time limit . Immediately prior to being
asked to give his version of what took place on
November 10, Mooney testified as follows on direct
examination:
Q. Now it is alleged in the complaint that
you stated that you were going to get-"We
will get you off the job one way or another."
You stated this to the Naeseths on or about
November 10 in a threatening manner. The
complaint says you threatened them this way.
Is this true or not true?
A. Not true.
Mooney's testimony then continues:
Q. Did you make any threats to them at all?
A. No.
0. Was there an explanation made to them
at that time about the dispute with the Com-
pany?
Not in detail. They told them that the
Union was beefing with the Company over the
question of the painting of this particular stack
and its safety and also beefing with the Com-
pany over the question of posting of jobs and
removing the seniority away from these regular
spray painters and that a written grievance
would be processed around this issue.
On cross-examination Mooney testified, "I never
made any threatening statements of any kind to the
Naeseth brothers when asked, "Can you testify with
certainty, that you never made the statements as al-
leged?"
Clausen and Dormandy each testified that he did
not hear Mooney make the statement attributed to
him by the Naeseth brothers or as set forth in para-
graph 7 of the complaint herein.
I credit the testimony of Charles and Lester
Naeseth over that of Clausen, Mooney, and Dor-
mandy and find that Mooney made the November
10 statement attributed to him by the Naeseths. I
base this finding on both the unpersuasiveness of
Respondent 's witnesses regarding their versions of
what took place and what was said on the occasion
in question, coupled with my personal opinion of
the demeanor of all the witnesses. Furthermore, in
my judgment the versions given by the Naeseth
brothers of what was said by the parties on
November 10 are inherently more credible than
those of Clausen, Mooney, and Dormandy, for I am
convinced that both Mooney and Clausen were
more concerned over the outcome of the grievance
which arose over the refusals of Jones and Koehn-
stedt to paint the smokestacks than whether the
Naeseth brothers lost their seniority if they did not
return to their respective departments prior to the
prescribed time. This finding is buttressed by the
fact that included in Respondent 's grievance was a
demand that the smokestack spray painting job be
classified as a steeplejack's job. Clausen, moreover,
admitted , on cross -examination , that he wanted the
Naeseth brothers "to hold their department seniori-
ty from which they came and I wanted to win the
grievance " in response to the General Counsel's
question , "Mr. Clausen, when you went down to
speak with the Naeseths were you primarily con-
cerned with their getting back to their old depart-
ments or persuading them to get off the job in
furtherance of your grievance?"
In urging a contrary credibility resolution, coun-
sel for Respondent points to the fact that the
General Counsel 's witnesses were unsure of the
exact words used by the participants in the
November 10 conversation and gave a different or
varied version as to when in the conversation Mo-
oney made the purported unlawful remark. I do not
deem these to be very significant matters; they are
details of recollection which , in the normal course
of events , would not likely be retained with preci-
sion . Suffice to say that Mooney's statement went
to the heart of the situation and touched upon the
one concern uppermost in the minds of Respon-
dent 's officials ; to wit , the winning of the pending
grievance, thereby enabling Jones and Koehnstedt
to return to their jobs and having the spray painting
job reclassified upwards as a steeplejack job.
B. Concluding Findings
Insofar as it alleges a violation of Section
MILL & SMELTERMEN UNION, LOCAL 16A
8(b)(1)(A) of the Act, the complaint is limited to
the events of November 10, 1966 , recounted here.
In addition to finding that Mooney made the re-
mark attributed to him by the Naeseth brothers, I,
also find that said remark was clearly threatening
and coercive . As such it was violative of Section
8(b)(1)(A) of the Act which makes it an unfair
labor practice for a union to restrain or coerce em-
ployees in the exercise of their Section 7 rights.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with Anacon-
da's business operations described in section I,
above, have a close, intimate,-and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices, it will therefore be recom-
583
mended that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact
and upon the record as a whole, I make the follow-
ing:
CONCLUSIONS OF LAW
1. Anaconda is engaged in, and during all
material times was engaged in, commerce or in a
business affecting commerce within the meaning of
Section 2( 6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By restraining and coercing employees of
Anaconda in the exercise of the rights guaranteed
in Section 7 of the Act, Respondent has violated
Section 8 (b)(1)(A) thereof.
4. 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.]