American Classic Construction, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 4, 2015

07-CA-143306 (N.L.R.B. Aug. 4, 2015)

JD–42–15
Bailey, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMERICAN CLASSIC
CONSTRUCTION, INC.,
Respondent
and Case 07-CA-143306
KIRK KAMINSKI, an Individual,
Charging Party
Jennifer Brazeal, Esq.,
Mr. Timothy Hatt,
for the General Counsel.
Karl Butterer,
for the Respondent.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. I heard this case on July 8, 2015, in Grand
Rapids, Michigan. After the parties rested, I heard oral argument on July 13, 2015, and issued a
bench decision on July 14, 2015, pursuant to Section 102.35(a)(10) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of law. In the complaint, the General
Counsel alleged that American Classic Construction, Inc. (Respondent) violated Section 8(a)(1)
of the National Labor Relations Act (the Act) by discharging Charging Party Kirk Kaminski on
or about December 19, 2014.
For the reasons stated by me on the record, I found that the General Counsel did not
establish, by a preponderance of the evidence, that Respondent violated Section 8(a)(1) of the
Act as alleged. Therefore, I ordered that the complaint be dismissed.
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2
In accordance with Section 102.45 of the Board’s Rules and Regulations, I certify the
accuracy of, and attach hereto as an Appendix, the portion of the transcript containing this
decision.1
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent has not 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 recommended2
ORDER
The complaint is dismissed.
Dated, Washington, D.C., August 4, 2015

____________________________
Melissa M. Olivero
Administrative Law Judge

1 The bench decision appears in uncorrected form at pp. 271 through 291 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as an Appendix to this certification.
2 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 objections to them shall be deemed waived for all purposes.
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APPENDIX
JUDGE OLIVERO: Good afternoon, everyone. We are here, telephonically, today for the
issuance of my bench decision in the matter of American Classic Construction, Inc., and Kirk
Kaminski, an Individual, Case 07-CA-143306. Present by telephone are Ms. Brazeal and Mr.
Hatt for the General Counsel, Mr. Butterer for Respondent. Mr. Kaminski is not on the call, but
he was made aware of the call today. Yesterday I entertained oral arguments telephonically, and
today, after considering the testimony and evidence and the oral arguments presented in the case,
I am prepared to render a decision. This decision is rendered pursuant to Sections 102.35(a)(1)
and 102.45 of the Board's Rules and Regulations.
The charge in this case was filed on December 22nd, 2014 by Mr. Kaminski, and the
complaint was issued on April 14th, 2015 against Respondent, American Classic Construction,
Inc., which I may refer to as ACC during this decision. The complaint alleges at paragraph 7 that
on or about December 19th, 2014, Respondent discharged the Charging Party in violation of
Section 8(a)(1) of the National Labor Relations Act (which I will refer to as the Act).
Respondent timely filed its answer to the Complaint, denying the allegation. Respondent later
filed two affirmative defenses, one of which was withdrawn prior to the trial. Respondent's
remaining affirmative defense is that it did not discharge Mr. Kaminski.
The case was tried before me in Grand Rapids, Michigan, on July 8th, 2015. After carefully
considering all of the testimony and evidence offered at the trial, as well as the arguments of the
General Counsel and Respondent, I make the following findings of fact:
Respondent admits, and I find, that it is a corporation engaged in the sale and delivery of
construction materials at its facility in Bailey, Michigan, where it annually purchases and
receives goods in excess of $50,000 directly from points outside the State of Michigan. Based
upon this admission, I find that Respondent is an employer engaged in commerce within the
meanings of Section 2(2), (6), and (7) of the Act. In its answer, Respondent further admits, and I
find, that Nathan Thompson, Jacob Thompson, and Leon Thompson have been at all material
times supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of
Respondent within the meaning of Section 2(13) of the Act.
Nathan (also known as Nate) and Jacob (also known as Jake) Thompson are brothers, and
Leon Thompson is their father. Respondent is owned by Nate, Leon, and Jake Thompson, each
holding an equal one-third ownership share in the company. Respondent supplies materials to
construction jobsites.
Relevant to this case, as demonstrated by Respondent's Exhibit 1, the United States
Department of Transportation (or DOT) requires that vehicles like those driven by Respondent's
employees undergo an annual inspection. Along with a report of annual inspection, the vehicles
are given stickers to display indicating passage of the annual inspection and the date of the
inspection. The uncontroverted evidence at the trial established that the date of the inspection
may become illegible on the sticker due to being outside in the elements.
The Charging Party, Mr. Kaminski, was employed by Respondent as a delivery driver from
late August or early September 2014 until December 19th, 2014. In this capacity, Mr. Kaminski
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drove large trucks. He holds a Commercial Driver's License (or CDL) for this purpose. The
evidence further establishes that Mr. Kaminski was involved in several accidents involving
property damage during his short tenure with Respondent. At the hearing, Respondent provided
photographs, identified as Respondent's Exhibit 2, taken after three of the incidents. The
uncontroverted testimony establishes that these incidents cost Respondent $30,000 to $40,000.
The first incident involved Mr. Kaminski's use of a red crane truck. Although Mr. Kaminski
initially testified that he drove this truck until it "went in for service," the evidence showed that
Mr. Kaminski damaged the truck. While delivering a load of shingles, Mr. Kaminski mistakenly
set down the truck's spare axle in addition to its outriggers, causing the truck's frame to twist. In
fact, Respondent ended up having to buy a new truck to replace the red crane truck as a result of
this damage. Mr. Kaminski eventually admitted that the truck almost tipped over and that he
observed a crack in the red crane truck's frame after this incident.
In the second incident, Mr. Kaminski drove on a freshly poured concrete driveway, damaging
it. Respondent was charged for the damage. Mr. Kaminski denied any knowledge that the
driveway was freshly poured when he drove on it. In the third incident, Mr. Kaminski put a hole
in a homeowner's roof while making a delivery and Respondent was charged for the damage. In
the fourth incident, a tractor (referred to as a Pettibone) driven by Mr. Kaminski rolled
backwards into a contractor's trailer. The owner of the trailer owed Respondent money, and
Respondent wrote off the debt to cover the trailer damage. Although Mr. Kaminski testified that
the tractor rolled backwards because of defective brakes, Jake Thompson testified that Mr.
Kaminski forgot to set the parking brake. This final incident occurred on December 11th, 2014,
just over a week before Mr. Kaminski's employment ended with Respondent.
All of the Thompsons testified that Kirk Kaminski was a good employee. However, they all
believed that he lacked good judgment due to the number of accidents he had been involved in.
As such, they decided to have a meeting with him to discuss his judgment after the accident of
December 11th.
On December 17th, 2014, Mr. Kaminski was driving a blue flatbed truck for work. Mr.
Kaminski stopped for gas in Hudsonville, Michigan and was approached by another truck driver.
The other driver (whose name is not known) approached Mr. Kaminski and informed him that
his DOT sticker was not visible. Mr. Kaminski and this individual then located the sticker and
wiped it off. According to the sticker, the inspection for the vehicle Mr. Kaminski was driving
expired in November 2013. It should be noted that during his initial direct examination testimony
about this meeting, Mr. Kaminski did not mention inspection paperwork or looking in the
vehicle's glove box for the paperwork.
After viewing the sticker, Mr. Kaminski returned to ACC where he first found Kevin Burns
and asked if Respondent's trucks had been federally inspected. Mr. Burns responded that he had
no idea. Mr. Burns' job title and employer were debated during the trial. However, I do not find
this issue material to my findings because Mr. Kaminski's complaint was eventually raised to a
supervisor of ACC. In addition, Mr. Kaminski gave testimony about this conversation that I
did not find credible, when he stated that Mr. Burns called another employee of Respondent,
Tim Gardner. Mr. Kaminski testified that he was able to overhear Mr. Gardner's end of the
telephone conversation from 5 to 6 feet away and that Mr. Gardner said that Mr. Kaminski
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should knock his shit off and quit his whiny BS. He testified that Mr. Burns then walked away. It
does not seem plausible that Mr. Kaminski could hear Mr. Gardner's statement with this degree
of specificity from 5 to 6 feet away, but did not remember anything else about the conversation.
Therefore, I do not credit his testimony on this point.
Later that afternoon, James Aishe, another delivery driver employed by Respondent, returned
to Respondent's facility and Mr. Kaminski discussed the inspection issue with him. The two then
went to Mr. Aishe's truck and found no inspection sticker. Although Mr. Kaminski testified that
he and Mr. Aishe went to Mr. Aishe's truck and found no "inspection sticker or paperwork," his
testimony is not corroborated. In fact, Mr. Aishe directly contradicted Mr. Kaminski on this point
by testifying that Mr. Kaminski did not mention inspection paperwork. Later, on cross-
examination, Mr. Kaminski added to his earlier testimony by stating that he checked the glove
boxes of Respondent's trucks for inspection paperwork that afternoon. He also added, for the first
time on cross-examination, that the unknown driver at the Hudsonville gas station said that his
truck needed verification of inspection in the truck. For these reasons, I credit the testimony of
Mr. Aishe that they only looked at the sticker.
The next day, December 18th, 2014, Mr. Kaminski and Mr. Aishe went to speak with
Timothy (also called T.J.) Sutton. During this conversation, Mr. Kaminski told Mr. Sutton that
the sticker on one of Respondent's trucks was illegible. At this point, Mr. Sutton either told Mr.
Kaminski and Mr. Aishe to go tell Jake Thompson, or he took them to Jake Thompson. In any
event, Jake Thompson, T.J. Sutton, Mr. Kaminski, and Mr. Aishe were present for a subsequent
conversation in which Mr. Aishe told Jake Thompson that the sticker on his truck could not be
read and Mr. Kaminski said that his truck's inspection was out of date. Jake Thompson told them
to shut the trucks down and not run them again until the inspection issue was figured out. All of
the witnesses agreed that Jake Thompson did not appear angry or upset with the statements of
Mr. Aishe and Mr. Kaminski.
Although Mr. Kaminski testified that Jake Thompson sent both he and Mr. Aishe home after
this conversation, Mr. Aishe testified that Jake Thompson put him to work around the shop. In
this instance I credit the testimony of Mr. Aishe. The General Counsel did not produce any
payroll documents or timecards that would establish that Mr. Aishe did not work on December
18th, as he testified. Therefore, as I have credited the testimony of Mr. Aishe over Mr. Kaminski,
I find that Mr. Aishe worked on December 18th. I further credit the testimony of Jake Thompson
that he offered Mr. Kaminski work that day, but that Mr. Kaminski declined it.
When Mr. Kaminski got home that day, he posted the following statement on his Facebook
page, "Well I got sent home today because none of are [sic] trucks are up to date on there [sic]
federal inspections so not legal to be on the road. You would think that this would be important
but I guess not." This statement and two other Facebook posts are in evidence as General
Counsel's Exhibit 3. Mr. Kaminski testified that his Facebook page is public, meaning it can be
seen by anyone. However, no evidence other than the testimony of Mr. Kaminski was presented
that any employee or supervisor or agent of Respondent may have seen this post.
On December 18th, Jake Thompson called the mechanic who inspected Respondent's trucks,
Jack Brand. Mr. Brand told Jake Thompson that having a proper sticker did not matter, but that
the trucks needed to have current inspection paperwork in their glove boxes. Jake Thompson
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then asked T.J. Sutton to look in the trucks for the inspection paperwork. T.J. Sutton looked in
the glove boxes of Respondent's trucks and discovered that all of the trucks were in compliance
with federal inspection standards. As testified to without contradiction by Jake Thompson and
T.J. Sutton, Respondent was aware by December 18th that all of the trucks met federal
inspection guidelines. This testimony is further bolstered by that of Mr. Aishe, who testified that
on December 19th he was told that it was "all good" and to go ahead and run his truck that day.
Friday, December 19th was Respondent's weekly payday for its employees. There is no
disagreement that Jake and Leon Thompson met with Mr. Kaminski on the morning of
December 19th in Jake Thompson's office. However, what happened during the meeting again
requires a credibility determination.
Mr. Kaminski testified that on December 19th, Leon Thompson approached him and said he
wanted to talk to Mr. Kaminski after he got his check. Mr. Kaminski said that Leon Thompson
said that he did not feel that he (Mr. Kaminski) was mature enough to operate Respondent's
equipment. Jake Thompson then allegedly told Leon Thompson about the previous day's
Facebook post. At this point, according to Mr. Kaminski, Leon blew up, stating that this is
bullshit, he couldn't believe that Mr. Kaminski would do this, and that he was fucking stupid.
Ultimately, according to Mr. Kaminski, Leon Thompson said that he did not feel like Mr.
Kaminski should work here anymore, at which point Jake Thompson told him to get his
timecard. Mr. Kaminski then retrieved his timecard and was given his last paycheck. According
to Mr. Kaminski's testimony, Jake and Leon Thompson did not bring up the "two incidents" in
which he was involved until near the end of the meeting. I do not credit this testimony because:
(1) the evidence established Mr. Kaminski was involved in four incidents, and (2) I have credited
the testimony of Jake, Leon, and Nate Thompson that they planned this meeting to discuss the
incidents with Mr. Kaminski.
Jake and Leon Thompson testified that the meeting went very differently. The Thompsons
testified that they wanted to speak to Mr. Kaminski that day about his job performance,
specifically the accidents he had been involved in. They showed him the photographs contained
in Respondent's Exhibit 2. Leon Thompson testified that he told Mr. Kaminski that they had to
stop the bleeding, by which he meant that all of these accidents were costing ACC money and
that it needed to stop. On cross-examination, Mr. Kaminski agreed that Leon Thompson told him
that he was costing the company money (something Mr. Kaminski did not mention in his direct
testimony regarding what happened at the meeting). The Thompsons discussed Mr. Kaminski's
negligence, the costs of the accidents, and their opinion that these accidents could have been
avoided.
During the meeting, Leon Thompson said that "stupidity" can be avoided or that this
"stupidity has to stop." Mr. Kaminski became angry when Leon Thompson used the word
"stupidity," protesting that he was not stupid. Mr. Kaminski and Leon Thompson argued for a
bit, and at the end of the meeting, Leon Thompson said, "let's get busy" or "let's get to work."
However, Mr. Kaminski was still angry and said, "I'm done," and that he did not want to work
there. He demanded his last check, which Jake Thompson had to handwrite using a check from a
different business account owned by the Thompsons. This final paycheck is in evidence as
General Counsel's Exhibit 4. Jake Thompson tried to talk Mr. Kaminski out of quitting and said
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he would talk to his brother Nate, who was not at the meeting, and to his father about trying to
talk Mr. Kaminski out of quitting.
Shortly after this meeting, Mr. Kaminski and Jake Thompson engaged in an exchange via
text message. The exchange is contained in General Counsel's Exhibit 5. Mr. Kaminski started
the exchange off by stating, "Hey bud thanks for every thing [sic] but don't waste your time
talking things over with your family. I don't want to work for you guys." Jake Thompson
responded to Mr. Kaminski by telling him, "I hope you think it through." I find these messages
more consistent with the version of events relayed by the Thompsons than that testified to by Mr.
Kaminski. Jake Thompson's statement that Mr. Kaminski should think it through, coupled with
Mr. Kaminski's statement that he did not want to work for ACC, seems more consistent with Mr.
Kaminski quitting than with his being discharged.
Mr. Kaminski made another Facebook post on December 19th stating, "Well just got let go
today," and asking for help finding a new job. On December 20th he posted, "Does anyone now
[sic] who to talk to or call about getting fired for not wanting to drive illegal trucks?" In
agreement with counsel for Respondent, I find the text messages more dispositive of what
occurred on December 19th than the subsequent Facebook posts. I find the text messages were
made closer in time to Mr. Kaminski's meeting with Jake and Leon Thompson and that the
Facebook posts were made after a period of reflection. Although there are no times listed on
either the text messages or the Facebook posts, I note that Mr. Kaminski testified about the text
messages first and, therefore, I must assume that his first text message was sent before his first
Facebook post was made. In addition, I note that nowhere in the text messages does Mr.
Kaminski ask Jake Thompson why he was fired or mention being fired.
These are the facts as I have found them. Now I shall turn to the discussion and analysis
portion of the decision. Most of my credibility resolutions have been made as part of the findings
of fact herein; however, I have been presented with two versions of certain events which cannot
be reconciled. Therefore, I feel the need to address the credibility of the witnesses further.
Generally, I did not find Mr. Kaminski's testimony credible. He frequently testified using
qualifying language (such as "to my knowledge" and "to my understanding") and generalities
and had to be reminded by the General Counsel to testify about his observations, rather than his
impressions. He sparred with Respondent's counsel on cross-examination. In addition, I cite the
following examples in support of my decision not to credit Mr. Kaminski.
Mr. Kaminski changed his testimony during the course of the hearing. Initially, he testified
that Jake Thompson told him to retrieve his timecard during the December 19th meeting with
Jake and Leon Thompson. Then, on rebuttal, he testified for the first time that he was asked to
retrieve his timecard after the meeting ended. He also initially testified that the unknown driver
at the gas station told him that his truck's sticker was not visible and later that it was out of date,
but he did not mention anything about looking in the truck's glove compartment for an inspection
report.
Later, under cross-examination, Mr. Kaminski testified that he looked in the glove box
because the unknown driver told him that there had to be verification of inspection in the truck.
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Mr. Kaminski also added to his testimony as the trial progressed. In his initial testimony
about his conversation with Kevin Burns, Mr. Kaminski only testified that he asked Mr. Burns if
Respondent's trucks were federally inspected. Later, under cross-examination, Mr. Kaminski
testified that he told Mr. Burns that his truck's sticker was out of date and that there was no
paperwork on the truck.
Now, I mention this issue of verifying the inspection paperwork in the truck versus the
sticker not because I believe that a sticker is required, but rather because it bears on Mr.
Kaminski's credibility. Whether the protested working condition was actually as objectionable as
the employee believed it to be is irrelevant to whether their concerted activity is protected by the
Act. Tamara Foods, 258 NLRB 1307, 1308 (1981), enfd. 692 F.2d 1171 (8th Cir. 1982), cert.
denied 461 U.S. 928 (1983). Section 7 of the Act protects the rights of employees to engage in
protests over what the employees believe to be unsafe working conditions. Tamara Foods, 258
NLRB at 1308. Therefore, the protected nature of Mr. Kaminski's and Mr. Aishe's protest over
the inspections of the vehicles, whether it related to stickers or inspection paperwork, was not
rendered unprotected because they may have been mistaken about whether stickers are required
or whether the inspections were up to date or not. Instead, I comment on this issue only as it
relates to credibility.
Mr. Kaminski also minimized his involvement in the several accidents referenced herein. On
direct examination, he testified that he was involved in only two accidents, the red crane truck
incident and the incident in which he rolled into a contractor's trailer. Under cross-examination,
however, he admitted that he was involved in the concrete driveway incident. Additionally, Mr.
Kaminski initially denied putting a hole in a customer's roof, then quickly changed his testimony
and admitted that he had done so. Given Mr. Kaminski's reticence to testify about these
incidents, I instead credit the testimony of Jake and Nate Thompson about them. For all of these
reasons, as well as other reasons mentioned in this decision, I generally did not credit Mr.
Kaminski's testimony.
As stated above, I found that the testimony of Mr. Aishe was credible. As a current employee
of Respondent testifying under subpoena from the General Counsel, his testimony is entitled to
enhanced credibility. Advocate South Suburban Hospital, 346 NLRB 209 fn. 1 (2006), citing
Flexsteel Industries, 316 NLRB 745 (1995), affd. mem. NLRB v. Flexsteel Industries, 83 F.3d
419 (5th Cir. 1996). His demeanor on the witness stand was steady and sure. He did not waver
under cross-examination, and the General Counsel chose not to undertake a redirect examination
of him. In addition, the General Counsel did not attempt to impeach his testimony. Therefore, I
have credited Mr. Aishe's testimony over that of other witnesses.
I further found T.J. Sutton to be a credible witness. He testified in a forthright manner, and he
did not waver on cross-examination. His testimony was not contradicted in any meaningful way
by other witnesses. Therefore, I have credited his testimony.
I also found Jake Thompson to be a credible witness. His testimony was straightforward and
had the ring of truth. He did not quibble with Counsel for the General Counsel or seem
argumentative on cross-examination. Furthermore, the General Counsel did not impeach him or
get him to change his testimony under cross-examination.
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Leon Thompson also appeared to be a credible witness during his brief testimony. His
testimony did not waver at all while he was on the stand. He appeared calm and sure of himself.
I found Nate Thompson to be a credible witness during his rather brief testimony. I credit the
testimony of Nate Thompson regarding the amount of damage caused by Mr. Kaminski during
his tenure with Respondent. Nate Thompson testified without contradiction on this point. He also
testified that he is responsible for Respondent's financials. To the extent he testified about what
occurred at the December 19th meeting, I do not credit this hearsay testimony.
Section 8(a)(1) of the Act states that it is an unfair labor practice for an employer to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 [of the
Act]. The legal standard for evaluating whether an adverse employment action violates Section
8(a)(1) of the Act is set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management
Corp., 462 U.S. 393, 395 (1983) (approving Wright Line analysis). In Wright Line, the Board
determined that the General Counsel carries the burden of persuading by a preponderance of the
evidence that an employee's protected conduct was a motivating factor (in whole or in part) for
the employer's adverse employment action. The adverse employment action alleged by the
General Counsel in this instance was a discharge.
I have found that Mr. Kaminski and Mr. Aishe engaged in protected concerted activity by
raising an issue with the federal inspections of Respondent's trucks to Mr. Sutton and Jake
Thompson. I further find that Respondent was aware of this activity, as Jake Thompson admitted
knowledge. However, I do not find that the General Counsel has proven the adverse
employment action alleged — a discharge. As I have credited the testimony of Jake Thompson
and Leon Thompson over that of Mr. Kaminski, I do not find that he was discharged as alleged
by the General Counsel. All of Respondent's witnesses testified that Mr. Kaminski quit or that
they were told that he quit. Mr. Kaminski alone testified that he was fired by Leon Thompson.
The General Counsel has unsuccessfully attempted to bootstrap earlier complaints by Mr.
Kaminski about non-operational headlights and a truck that would not start to his complaints
about the absence of federal inspection paperwork. This is likely because the evidence showed
that neither Mr. Aishe nor Mr. Sutton were disciplined or discharged for their roles in bringing
the federal inspection issue to the attention of Jake Thompson. None of these earlier complaints
were alleged in the charge or in the complaint as being a motivating factor for Mr. Kaminski's
alleged discharge or as being protected concerted activity. I am not convinced that Mr.
Kaminski's earlier complaints, all of which were remedied, played any part in the Thompsons'
decision to talk to him on December 19th.
In addition, as noted above, I do not find that Mr. Kaminski was discharged. I have found
that the fact that Respondent had not prepared a final paycheck for Mr. Kaminski in advance of
the December 19th meeting weighs against a finding that Mr. Kaminski was discharged.
Furthermore, Mr. Kaminski testified that the meeting was heated, while Jake and Leon
Thompson testified it was not. I credit the testimony of the Thompsons who both appeared calm
throughout the hearing. Mr. Kaminski, however, became animated at various points during his
cross-examination testimony. I further note that the tone of Mr. Kaminski's angry Facebook posts
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in General Counsel's Exhibit 3 lead me to believe that it was he who lost his temper during the
December 19th meeting and quit.
In summary, I do not find that the General Counsel has established, by a preponderance of
the evidence, that Respondent discharged Mr. Kaminski as alleged in paragraph 7 of the
complaint. Therefore, I make the following conclusions of law:
Respondent, American Classic Construction, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The General Counsel has not established
by a preponderance of the evidence that Respondent discharged Charging Party Kirk Kaminski
as alleged in the complaint.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended order:
The complaint is dismissed in its entirety.
When the transcript of this proceeding has been prepared, I will issue a certification which
attaches as an appendix the portion of the transcript reporting this bench decision. When the
certification is served upon the parties, the time period for filing exceptions will begin to run. I
direct your attention to the Board's Rules and Regulations regarding the time period for filing
exceptions. I want to thank counsel for the General Counsel and counsel for Respondent for your
professionalism and competence in presenting this case. With that, the trial is now closed, and
we are off the record.