In the Matter of the Complaint Against

 ALASKA EMPLOYMENT
 894 National Press Building at
 Washington, D.C.  20045

 P.S. Docket No. 7/166;  
 
 08/26/80
 
 Duvall, William A.  

 APPEARANCE FOR COMPLAINANT:
 Dani el S. Greenberg, Esq.
 
 Consumer Protection Division
 Law Department
 U. S. Postal Service
 Washington, D.C.  20260

 APPEARANCE FOR RESPONDENT:
 Donald G. McGrath, Esq.
 McGrath, Meyer, Lieberman & Lipp
 The Statler building, Suite 1400
 107 Delaware Avenue
 Buffalo, NY 14202

 Deborah Shur Trinker, Esq.
 1150 17th Street, N.W. 
 Washington, D.C. 20036

This proceeding was initiated on March 10, 1980, when the Consumer Protection Division, Law Department United States Postal Service (Complainant) filed a Complaint in which it charged that Alaska Employment, 894 National Press Building, Washington, D.C. 20045 (Respondent) is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 United States Code § 3005.

It is charged in the Complaint that Respondent attracts attention to the alleged scheme by means of advertising matter, a typical copy of which was attached to the Complaint and which, in turn, is attached hereto as Appendix A.

It is alleged in paragraph II A of the Complaint that in the said advertisement Respondent makes statements about various aspects of jobs in Alaska, and about Respondent's offer of assistance to seekers of those jobs, which statements, in substance, are as follows:

"(1) Jobs in Alaska are now among the most highly paid in the world;

(2) Such jobs pay $1020 to more than $1600 per week;

(3) Totally unskilled workers can start work at $1020 weekly (including overtime);

(4) Relatively unskilled jobs pay $12 to $19 per hour;

(5) Room and board are paid by the employer, or are available at nominal cost;

(6) Transportation to Alaska is forwarded by the employer, 'no matter whether the employee can run a dozer, weld, handle a shovel, fly a helicopter or even wait on tables';

(7) Respondent is the expert on the companies which are hiring;

(8) Respondent has prepared a kit which includes, among other things, a complete instruction manual and a directory listing 1320 current employers in the Arctic;

(9) The jobs will go to those who know where and how to apply;

(10 If the purchaser of said kit does not obtain satisfactory employment in Alaska within 90 days of receipt of said kit, the kit may be returned for a refund;"

It is alleged in paragraph II B of the Complaint that, "assuming arguendo the statements enumerated in subparagraph II A, supra, are true in some cases, Respondent's advertisement fails to make the following affirmative disclosures of material facts:

(1) Most jobs in Alaska do not pay the wages cited by Respondent;

(2) Most jobs in Alaska pay only the minimum wage; ^1/

(3) Most of the higher paying construction jobs in Alaska go only to union members, based upon seniority;

(4) Many employers hire only union members, based upon seniority;

(5) Unions have a preferential hiring practice of first hiring Alaskan residents;

(6) Alaska's unemployment rate is among the highest in the United States;

(7) Most jobs in Alaska do not include room and board in addition to the salary;

(8) Where room and board are available at 'nominal' cost, said cost is often equal to, or higher than, the normal costs for same in other states;

(9) Most companies do not pay transportation costs from the employee's current place of residence to Alaska;

(10) Most companies do not advance transportation costs from the employee's current place of residence to Alaska;

(11) Most of those few companies which do advance transportation costs from the employee's current place of residence to Alaska deduct same from the employee's wages;

Complainant alleged in paragraph II C of the Complaint that, "by means of the statements enumerated in subparagraph II A, supra, coupled with Respondent's failure to make affirmative disclosure of the material facts enumerated in subparagraph II B, supra, Respondent represents, in substance and effect:

(1) That there are many jobs currently available in Alaska which pay $12 to $19 per hour;

(2) That there are many jobs currently available in Alaska at which totally unskilled people can start at $1020 weekly (including overtime);

(3) That there are many jobs currently available in Alaska at which relatively unskilled people can earn $12 to $19 per hour;

(4) That most companies will pay the transportation cost to Alaska of the workers who fill the jobs described in subparagraphs II C (1) through (3), supra;

(5) That most companies will pay the room and board of the workers who fill the jobs described in subparagraphs II C (1) through (3), supra, or will provide same at little cost in comparison to what the employee would pay in his home state;

(6) That skilled workers can likewise reasonably expect to obtain the jobs with the salaries and benefits described in subparagraphs II C (1) through (5), supra;

(7) That most people who purchase the Alaska Employment Kit can reasonably expect to obtain, within 90 days of receipt of said kit, a job in Alaska providing the salaries and benefits described in subparagraphs II C (1) through (6), supra;

(8) That said kit contains a list of 1320 employers currently seeking to fill jobs providing the salaries and benefits described in subparagraphs II C (1) through II C (6), supra;"

Complainant charged that the representations set forth in paragraph II C of the Complaint are materially false as a matter of fact.

Finally, Complainant alleges that Respondent induces readers of the representations in paragraph II C of the Complaint to remit money to Respondent and, in this manner, becomes the proper subject of a mail stop order.

In the Answer to the Complaint Respondent:

1. Denies that it conducts a scheme or device within the meaning of 39 U.S. Code § 3005;

2. Admits the publication of the advertisement (App. A);

3. Denies that Respondent has any duty to make any of the affirmative disclosures stated in paragraph II B of the complaint.

4. Denies that it makes the representations set forth in paragraph II C of the complaint, and refers to the advertisement, itself, for its exact terms.

5. Denies paragraphs III and IV of the Complaint except that it admits the use of the captioned name and address in its business.

6. Denies all allegations of fraud, misrepresentation or wrongdoing on the part of the Respondent not theretofore specifically denied.

7. As its first affirmative defense Respondent alleges that its advertisement (Appendix A) is devoid of any fraud, misrepresentation or intent to deceive and that it is lawful in all respects.

8. As its second and last affirmative defense, Respondent alleges that the claims of misrepresentations in the Complaint are untrue and are merely camouflage for the real reason this action was commenced: to wit, an illegal conspiracy on the part of the U. S. Postal Service and/or some of its employees to conspire with and assist the State of Alaska and/or some of its employees to illegally and unconstitutionally stop in-migration of U. S. citizens seeking employment in Alaska. ^2/

Respondent is engaged in the sale through the mail of an "Alaska Employment Kit" relating to employment opportunities in Alaska (App. A).

The Alaska Employment Kit is composed basically of three sections. First, there is a nine-page section describing the different areas of the large expanse of land which is the location in which employment is allegedly available. There is advice on "How to Get a Job" and there is discussion of the oil pipeline, the available sport hunting and fishing, petroleum and other minerals, the construction business, the fishing industry, and employment in teaching, and with the United States or Canadian governments.

The second section is comprised of names of entities identified as prospective employers in various categories. There are 40 pages in this section with approximately 33 names and addresses on each page.

The last section has 5 pages of forms of various kinds of letters that may be used as models by purchasers of the kit in seeking employment, such as a letter of inquiry, a sample resume, a letter transmitting the resume, a follow-up letter for use if the employer has not responded to the writer's job application, and a letter of acceptance.

As a separate item there is an offer to prepare a resume for the purchaser for $24.95 (regular price of $50.00).

Respondent makes the representations alleged in paragraph II C of the Complaint.

The representations and the language which form the basis for them are now stated.

Par. II C (1): That there are many jobs currently available in Alaska which pay $12 to $19 per hour;

App. A: "If you don't mind working about 70 hours a week at a relatively unskilled job, $12 to $19 an hour with time-and-a-half and even double time adds up to those big fat checks you've always dreamed about. So no matter whether you can run a dozer, weld, handle a shovel, fly a helicopter or even wait on tables, local and multi-national corporations will be quite eager to forward transportation."

Par. II C (2): That there are many jobs currently available in Alaska at which totally unskilled people can start at $1020 weekly (including overtime);

App. A: HOW TO GET A

$1,615 A WEEK

JOB IN ALASKA

Even if Totally Unskilled

Start at $1,020 Weekly"

"Jobs in Alaska are now among the most highly paid in the world. And by high paying we mean big money -- $1,020 to over $1,600 a week, plus room and board, either free or at nominal cost. The key to all this is overtime - plenty of it."

Par II C (3): That there are many jobs currently available in Alaska at which relatively unskilled people can earn $12 to $19 per hour;

App. A: Same language as that which supports Par. II C (1).

Par. II C (4): That most companies will pay the transportation costs to Alaska of the workers who fill the jobs described in subparagraphs II C (1) through (3), supra;

App. A: "So no matter whether you can run a dozer, weld, handle a shovel, fly a helicopter or even wait on tables, local and multi-national corporations will be quite eager to forward transportation."

Par. II C (5): That most companies will pay the room and board of the workers who fill the jobs described in subparagraphs II C (1) through (3), supra, or will provide same at little cost in comparison to what the employee would pay in his home state;

App. A: "Jobs in Alaska are now among the most highly paid in the world. And by high paying we mean big money - $1,020 to over $1,600 a week, plus room and board, either free or at nominal cost."

Par. II C (6): That skilled workers can likewise reasonably expect to obtain the jobs with the salaries and benefits described in subparagraphs II C (1) through (5), supra;

App. A: "HOW TO GET A

$1,615 A WEEK

JOB IN ALASKA

* * *

"So no matter whether you can run a dozer, weld, handle a shovel, fly a helicopter or even wait on tables, local and multi-national corporations will be quite eager to forward transportation."

Par. II C (7): That most people who purchase the Alaskan Employment Kit can reasonably expect to obtain, within 90 days of receipt of said kit, a job in Alaska providing the salaries and benefits described in subparagraphs II C (1) through (6), supra;

App. A: "This kit can be obtained by sending $9.95 cash, check or money order to ALASKA EMPLOYMENT, Dept. 118-12, 894 National Press Building, Washington, D.C. 20045. On COD's add $1 goodwill deposit (deductible). Keep it for 90 days. If for any reason you do not obtain Alaskan employment within that time, or are not satisfied with the employment offered, simply return the ALASKAN EMPLOYMENT KIT and your money will be refunded promptly and without question."

Par. II C (8): That said kit contains a list of 1320 employers currently seeking to fill jobs providing the salaries and benefits described in subparagraphs II C (1) through (6), supra;

App. A: "And that is where we come in. We are the experts on the companies who are hiring. We developed the ALASKAN EMPLOYMENT KIT, a complete instruction manual and directory listing 1,320 current employers in the Arctic. Plus sample inquiry letters, resumes, application letters with pre-printed labels and procedures. And the jobs will go to those who know where and how to apply."

Applying the criteria established in Donaldson v. Read Magazine, 333 U.S. 178, 188-189 and Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D.N.Y., 1957), it is found that Respondent does make the representations set forth in paragraph II C of the Complaint.

Complainant's first witness was Dale Creek, who has been the Director of the Wage and Hour Division of the Alaska Department of Labor since May, 1977 (Tr. 15, 23). Among Mr. Cheek's duties are the enforcement of labor laws involving wages, hours worked, and, in certain cases, conditions of work; enforcement of the employment agency laws; enforcement of the minimum rates of pay on public works contracts; unemployment insurance fraud investigations; construction safety inspections; and fact finding for the labor relations agency in Alaska (as regards Government workers). Mr. Cheek serves, also, as a member of an arbitration panel which hears and makes decisions on arbitration matters between contractors or employees and unions interpreting collective bargaining agreements. He supervises the compilation of wage information from public works contracts, from employers, and from employees.

In regard to public works projects, the state law requires contractors to furnish his Division with a weekly certified payroll report indicating hours worked, wages paid, and the amount of overtime. Mr. Cheek's Division handles about 2000 wage claims per year, involving amount of pay, overtime, and other benefits, including questions pertaining to the supplying of room and board to employees. This information comes to his Division through investigations of complaints received. He receives and approves all the final reports made by inspectors, and he routinely receives daily activity reports from investigators in the field during investigations. These responsibilities provide him with a basis for knowing the wages paid in various occupations, and for knowing whether workers in certain industries are paid overtime. He is also frequently in contact with the employers themselves through labor relations matters, discussion of arbitration matters, and simply on day-to-day business. (Tr. 17-19)

Every six months a survey is conducted in the State of Alaska to determine the prevailing wage rate for a given construction occupation. These rates are published and contractors performing public works contracts in that area must then pay that wage rate. In order to perform one of the duties of his office, he must know the various rates in order to be able to enforce the wage rates for public works contracts.

One of the responsibilities assigned to the Division of which Mr. Cheek is the Director is to assure compliance by all contractors in the State with the licensing and bonding laws. His Division's actions under this law bear upon his knowledge of wages and hours and rates of pay, in that his investigations also may include an audit of said contractors. (Tr. 16, 21-23) Additionally, his Division compiles information concerning the amount of money earned by individuals who are receiving unemployment benefits. (Tr. 80) The Wage and Hour Administration Section of his Division is involved in the administration of wages and hours for all of Alaska's workers except for federal and state government workers. By virtue of his position, Mr. Cheek's official interest in the wages and hours of a private worker extends to whether or not the worker is receiving the minimum wage; whether he was paid according to individual agreements or collective bargaining agreements; whether he was properly paid for overtime; whether or not the employee was of legal age to do certain jobs. (Tr. 81-83)

In the same manner Mr. Cheek knows whether transportation is either paid for, or advanced by, employers by virtue of his responsibilities involving enforcement of the "right to return transportation" statute, which requires that an employer who recruits an employee outside of the State, and pays his transportation, must also return that employee by a like mode of transportation when he is terminated, except for certain causes. He is also aware of this through conversations and meetings with employers and complaints filed with his Division. (Tr. 19-21)

During construction of the Alaska pipeline, most construction crafts worked seven days a week, frequently with ten- and twelve-hour days, which gave them a minimum of 30 hours overtime. Unskilled laborers were paid $14 or $15 per hour, and overtime was approximately $21 per hour. (Tr. 23-24) Moreover, most jobs on the pipeline did include room and board in addition to salary. Most of the construction work on the pipeline was in remote areas, so the workers were furnished with room and board, except for those who were close enough to their homes to drive. There was no place to live except in the camps. (Tr. 29-30) The wages, plus the furnishing of room and board created the popular image of the attractiveness of wages in Alaska.

Construction companies did not pay the transportation of unskilled workers to Alaska from wherever the workers were living. These people, with the exception of certified welders, a skilled occupation, who were members of a pipe welders' local from Tulsa, Oklahoma, would have to come to Alaska before they could be hired. (Tr. 24) Not only did the companies not pay the transportation for unskilled workers to Alaska, but in fact they did not even advance the transportation costs of such unskilled workers. (Tr. 25)

Except for certain professional and managerial categories, the pipeline jobs were union jobs, and a non-union worker could get a job on the pipeline only by joining the union. Moreover, the unions had a seniority basis for determining who would be sent on a job first. (Tr. 25-26, 71) Even when the employers were hiring, not all people who went to Alaska to work on the pipeline obtained work. Some left because of the lack of work, because there was too long a waiting time before getting work, or because of the expense of living in Fairbanks or Anchorage. (Tr. 26-29)

Since the completion of the pipeline, there is much less overtime on construction projects, and there has been a great decrease in the number of the high paying jobs as compared to the construction period of the Trans-Alaskan Pipeline. (Tr. 30)

Taking into consideration the broad spectrum of employers and occupations in Alaska, as distinguished from just the pipeline jobs, most jobs in Alaska do not pay $12 to $19 per hour, and there are not currently many jobs available in Alaska at which people can earn $1,020 per week including overtime. (Subparagraphs II C(1)-(3) of the Complaint; (Tr. 30, 70)

Most companies neither pay no advance the transportation costs to Alaska of workers (subparagraphs II C(4)-(5) of the Complaint; Tr. 30, 72-73, 126-27); nor will they pay the room and board of such workers (subparagraph II C(5) of the Complaint; Tr. 30, 71). Generally, if a contract construction job is more than 40 miles from an urban area, the employer will supply room and board, in addition to wages. (Tr. 88-89)

Even in some remote areas, employees are charged for room and board, as in the seafood processing industry. The range of charges there would be between $6 and $10 per day per individual. Thus, assuming a thirty-day month, the employee's charge for room and board would be between $180 and $300 per month, amounts which remove the room and board expense from the "either free or at nominal cost" category. (subparagraph II C(4) of the Complaint; App. A; Tr. 90)

Most unskilled workers would not be able to obtain a job with these benefits within 90 days of receipt of the Alaskan Employment Kit. (subparagraph II C(7) of the Complaint; Tr. 32-33) As regards skilled workers, there are some jobs available where skilled people can earn $12 to $19 per hour as electrical technicians in the Cold Bay Gathering Field area, and some other professional positions in the petroleum industry, but there would be very few, if any, jobs available now in construction, even for skilled workers. (Tr. 30-32) However, there are some positions for skilled workers where the company would furnish transportation, and, depending upon the location, may also pay room and board. As with construction workers, the furnishing of room and board depends upon whether the job is in a remote area as opposed to a metropolitan area. (Tr. 32) The employment market for skilled workers is a limited one in terms of jobs with these salaries and benefits. (subparagraph II C(6) of the Complaint)

If the cities, etc., listed on Ex. C-1 were paying transportation to Alaska for people they were going to hire, this practice would be likely to come to Mr. Cheek's attention because of the labor relations functions of his office, which include the question of travel costs. (Tr. 67-68) While certain local governments have paid the costs of transportation for specific employees, (e.g., an engineer in the city of Anchorage), such is not a common practice. Anchorage's experience was an unusual situation, because they could not recruit such a skilled individual within the state or within the municipality. (subparagraph II C(8) of the Complaint; Tr. 68-69)

In regard to the question of providing room and board for their employees, Mr. Cheek again testified that if the government entities listed on Ex. C-1 paid the room and board of their employees, this would likely come to his attention as part of the pay package, and that he has not heard of any city that pays room and board for its employees. (Tr. 69)

The percentage of employers who actively recruit might increase in May-June each year, but this increase would be due to the seasonal nature of a number of jobs. (Tr. 106) However, many regular employees annually return to their seasonal jobs. (Tr. 104, 129) Therefore, the increase in seasonal hiring does not not necessarily represent an increase in jobs available for the reader of Respondent's advertisements.

Complainant's second witness was John Post, Chief of Research and Analysis for the Alaska Department of Labor. Mr. Post is responsible for the gathering and analysis of information pertaining to much of Alaska's labor market. He heads a staff of 28 people including statistical technicians, statistical clerks, labor economists, and a clerical staff. His principal duties are to prepare, analyze, and communicate information pertaining to employment, unemployment, wages, hours of work, and occupational supply and demand. He is also responsible for reports of the state pertaining to job service offices throughout Alaska; analysis of Alaska's labor market and employment outlook, and its unemployment insurance program; and analysis regarding employment and unemployment. (Tr. 149-51)

He is presently a non-paid federal employee with the title of Cooperating Representative with the U.S. Department of Labor's Bureau of Labor Statistics. Many of the programs on research and analysis that he works on are coordinated with the Bureau of Labor Statistics. (Tr. 152)

When asked about the wage figures in Table II of Respondent's Exhibit 1 ("Alaska Economic Information and Reporting System, July, 1979"), Mr. Post explained that establishment of these figures was the result of work involving very close cooperation between his Department and the Division of Economic Development. He explained that the Department of Commerce and Economic Development gets the most current actual wage and employment information from the Division of Research and Analysis, of which he is the Director. Contrary to the belief expressed earlier by Mr. Cheek, the data shown on Table II includes both straight time and overtime, rather than just straight time. (Tr. 152-53, 156-57, 159-60)

Mr. Post's Division is responsible for tabulating and analyzing wage reports of employers in the state, which reports are mandatory under the Alaska Unemployment Compensation Program. About 95 percent of the employers are currently covered under this program. In addition, Mr. Post's Division conducts surveys by means of which information is obtained from those employers not covered under the program. The reports giving this wage data are published on a regular basis. (Tr. 160)

The average wages of persons engaged as laborers, and engaged in mining, construction, etc., shown in RX-1, were not entry-level wages but, rather, were average wages. Entry-level wages would generally be much lower. (Tr. 169)

The entry-level wages for various occupations appear in CX-3, Table I, at pages 5-7 ("Wage Rates for Selected Occupations"). A brief review of this table will show that most jobs in Alaska, whether skilled or unskilled, do not pay the $12 to $19 per hour alluded to in Respondent's advertisement. In this regard, note is taken of the last two columns on pages 5 through 7 (statewide average -- non-union, and statewide average -- union, respectively). While it is true that there are several job categories in which skilled people who are union members can earn more than $12, non-union skilled workers receive less. The disparity varies with the particular position, but the union scale is, in many instances, 25% to 75% higher than the non-union scale.Moreover, there are few non-skilled jobs at which even union members can earn $12 or more per hour.

Respondent, during its cross-examination of Mr. Post, noted that the booklet "Occupational Supply and Demand (December, 1979)," published by the Alaska Department of Labor, (Ex. R-2) listed certain jobs as being hard to fill. (Tr. 244) In almost all cases, however, the position in question is hard to fill because either a certain skill level is required, or the pay is too low (contrary to Respondent's advertising representations as to the availability of high-paying jobs for low skilled workers). More significant than the entries under "Surplus of Openings or Hard to Fill Openings" are those under the heading "Surplus of Applicants" (pp. 14, 16-17, 19-22, 24-26, 28-30), which show surpluses at various employment centers throughout the State, in numerous occupations including the high-paying positions of construction, truck driving, heavy equipment operators, and auto mechanics (pp. 14, 16, 17, 19, 21, 22, 24, 25, 26, 28, 29, 30).

Reference to a publication by the United States Department of Labor ("News," USDL Press Release No. 80-81, Bureau of Labor Statistics, dated February 11, 1980), shows that Alaska's employment rate is higher than that of any other state. (Ex. C-6) This publication consists of four pages of explanatory material, followed by a chart comprising five pages, entitled "Labor force and unemployment by State and selected metropolitan areas," and a map of the United States showing unemployment in the state by varying degrees of shaded areas. The last two columns on the right-hand side of the chart show, respectively, the percentage of unemployment for November, 1979, and the preliminary unemployment figures for December, 1979. (Tr. 207-08) Review of these columns shows that although certain metropolitan areas had higher unemployment rates for each of the respective time periods no state had an unemployment rate higher than, or even equal to, that of Alaska.

Respondent's only witness was Thomas H. Lucas, the owner and operator of the Respondent business. It was Mr. Lucas who arranged for and reviewed the advertisement, Appendix A. Mr. Lucas stated that, as he wished it to do, his kit provides a way for persons seeking jobs to contact as many employers as possible in as cheap a manner as possible. (Tr. 322-23)

Respondent's case consisted chiefly of attempting to show through cross-examination of Complainant's witnesses that (1) unemployment in Alaska is not too much worse than it is in the contiguous States of the United States, (2) that there are positions in Alaska which require the talents of both skilled and unskilled persons, and (3) that there are positions in Alaska the incumbents of which receive high rates of pay.

On the other hand, if Respondent was to prevail in this proceeding, it had to establish that there are substantial numbers of job openings and employment opportunities available in Alaska which carry with them the generous salaries and additional benefits described in its advertisement as specified in paragraph II C of the Complaint. This the Respondent failed to do.

1. The Respondent is engaged in a business in which remittances of money through the mail are sought.

2. In the conduct of its business Respondent utilizes the advertisement, a copy of which is attached to the Complaint, and a copy of which is attached hereto as Appendix A.

3. In its advertisement, Respondent by direct statement, by inference, and by failure to make full disclosure, makes the representations which are set forth in paragraph II C of the Complaint.

4. The representations made by Respondent are of the kind and character which would be expected to cause persons to order, and make remittances for, Respondent's product, namely, the Alaska Employment Kit, and they are, therefore material representations.

5. The representations made by Respondent are false as to material matters of fact.

1. Persons of ordinary mind would interpret Respondent's advertising, in substance and effect, as that advertising material is expressed in the representations of paragraph II C of the Complaint. Donaldson v. Read Magazine, 333 U.S. 178, 188-189.

2. A refund offer does not remove the taint of sales made on the basis of misrepresentation. Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y., 1959)

3. Respondent is engaged in conducting a scheme or device for obtaining money through the mail be means of false representation within the meaning of 39 U. S. Code 3005.

Proposed findings of fact and conclusions of law submitted by the parties have been fully considered, and to the extent indicated herein, they have been adopted. Otherwise such proposed findings of fact and conclusions of law are rejected for the reason that they are unsupported by, or contrary to, the evidence or because of their immateriality.

An order of the type provided for in 39 U. S. Code 3005, and substantially in the form attached, should be issued against this Respondent.

1/ This allegedly required disclosure was withdrawn at the hearing, but this withdrawal did not affect any other part of the Complaint (Tr. 8-9, 12).

2/ This charge was held to be outside the scope of this proceeding.