General-Haskell-Amelco

National Labor Relations Board - Board Decisions

Sep 16, 1976

225 N.L.R.B. 1358 (N.L.R.B. 1976)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General -Haskell -Amelco and George W. Mitchell
Local Union No. 46 , International Brotherhood of
Electrical Workers , AFL-CIO and George W. Mit-
chell. Cases 19-CA-7988 and 19-CB-2546
September 16, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On April 20, 1976, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and both Respondents
filed briefs in opposition to the exceptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions z of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaints herein be, and they hereby
are, dismissed in their entirety.
on October 24, 1975, a complaint was issued in said case
on October 30, 1975 Said complaint alleges that General-
Haskell-Amelco, hereinafter referred to as Respondent
Employer or the Company, violated Section 8(a)(3) and (1)
of the Act on or about May 12, 1975, through its foreman,
Orton Fuller, and on or about June 16, 1975, through its
foreman, Ray Morgan, by laying off Mitchell because he
was not a member of Local Union No. 46, International
Brotherhood of Electrical Workers, AFL-CIO, hereinafter
referred to as the Union. By its answer, Respondent Em-
ployer denies that Mitchell was laid off by said foremen
and further denies that it violated the Act as alleged
Based upon a charge filed on October 24, 1975, by said
Mitchell in Case 19-CB-2546, a complaint was issued on
November 19, 1975. Said complaint alleges that the Re-
spondent Union violated Section 8(b)(2) and (1)(A) of the
Act, through its agents Fuller and Morgan by directing the
Company to lay off Mitchell on the dates above specified
because Mitchell was not a member of the Union. By its
answer, the Respondent Union denies that Fuller and
Morgan were its agents, denies the jurisdictional facts al-
leged and the conclusionary allegation that Respondent
Employer is an employer engaged in commerce within the
meaning of the Act; ' and denies that it violated the Act as
alleged. Furthermore, Respondent raises certain affirma-
tive defenses which may be summarized as follows: (1) that
there was an improper solicitation of the charge; (2) that
the complaint is not clear; (3) that there was insufficient
service and lack of personal jurisdiction; and (4) that there
was a failure to offer a settlement.2
By order of the Regional Director for Region 19 dated
November 19, 1975, the above two cases were consolidated
for hearing. Pursuant to notice, a hearing was held before
me on January 13, 1976, in Seattle, Washington. Appear-
ances were entered upon behalf of the General Counsel
and each of the Respondents and briefs were timely filed
by each of said parties.
Based upon the entire records in this proceeding and my
observation of the witnesses as they testified, I make the
following:
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The General Counsel has moved to reopen the hearing in order to ad-
duce evidence excluded by the Administrative Law Judge as to the practices
of Respondent Union with respect to making agreements regarding priority
of layoffs with other employers Inasmuch as we agree with the Administra-
tive Law Judge that such evidence is not material to the issue of whether
these Respondents engaged in unfair labor practices, we hereby deny the
motion
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed by George W. Mitchell, an individual,
in Case 19-CA-7988, on September 15, 1975, as amended
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYER
Respondent Employer is, and has been at all times mate-
rial herein, a joint venture with office and place of business
located at Seattle, Washington, where it is engaged in the
business of constructing modular buildings
During the past 12 months, which period is representa-
tive of all times material herein, it sold and shipped from
1 Inasmuch as said allegations were admitted by Respondent Company, it
is concluded that said denials were unsubstantiated
2 Based upon the record, it is found that none of the first three of said
affirmative defenses has been substantiated Further, the fourth affirmative
defense is, on its face, without merit
3 Contemporaneously with the filing of his brief, General Counsel filed a
motion to reopen the hearing and to amend the complaint and to conform
pleadings to proof Each of the Respondents filed its opposition to said
motions For the reasons set forth herembelow, said motions of General
Counsel are hereby denied
225 NLRB No. 202
GENERAL-HASKELL-AMELCO
its Seattle operation finished products valued in excess of
$50,000 to points outside the State of Washington, and
made gross sales exceeding $ 500,000.
Respondent Employer is, and has been at all times mate-
nal herein , an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
As admitted by Respondents, the Respondent Union is,
and has been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
According to Mitchell's uncontradicted and credited tes-
timony, he is a journeyman wireman; he has been a mem-
ber of Local 77 (another local of the same International
union as that of the Respondent Union) since 1958, and
has worked out of Respondent Union since February 1966
It appears that throughout the record members of other
locals than Respondent Union who work out of Respon-
dent Union (i.e., are dispatched from its hiring hall) are
referred to as "travelers."
During all times material herein a collective-bargaining
agreement existed between Puget Sound Chapter, National
Electrical Contractors Association, and Respondent Union
which provided for an exclusive hiring hall and for priority
groups for dispatch.' Contrary to the allegations in the
complaints, Respondent Employer was not a member of
said Association but had, in writing, agreed with Respon-
dent Union to abide by the terms of the said collective-
bargaining agreement. As above mentioned, Respondent
Employer is a joint venture, and it appears that it did not
start operating until December 1974. It is noted that Mit-
chell was in the highest priority group, referred to in the
record as a "book I" man. It appears that, while the collec-
tive-bargaining agreement provides for priorities on dis-
patch, there is no provision in said agreement relating to
layoffs or priorities with respect thereto.
Mitchell was dispatched to work for Respondent Em-
ployer on or about April 29, 1975, was laid off on May 12,
1975, was dispatched again to Respondent Employer on or
about May 27, 1975, and was again laid off on June 16,
1975 There were three layoffs during the time material
herein (on May 3, May 12, and June 16). Following is a
table setting forth the number of members and nonmem-
bers (travelers) laid off and retained on said dates:
May 3
Laid Off Retained
Members 2 165
Nonmembers 1
May 12
14
Members 17 148
Nonmembers 9 5
' Referred to as book I, book II, book III, and book IV men, apparently
based upon which out-of-work hook individuals in the four categories were
required to sign
Members
Nonmembers
1359
June 16
30 116
9 11
It is noted, according to the above table, that sometime
after May 12 and prior to June 16 the number of members
employed was reduced from 148 to 146 and the number of
nonmembers employed was increased from 5 to 20. There
is no explanation in the record for the above changes in the
complement of employees, but it would appear reasonable
to infer that two members either quit or were laid off and
15 nonmembers were dispatched.
The only allegations of unfair labor practices in the com-
plaints are that Mitchell was laid off because he was a
nonmember on May 12 and June 16 by the aforemen-
tioned two foremen of Respondent Employer in violation
of Section 8(a)(3) and (1) of the Act, and that his two lay-
offs were at the direction of said two foremen who were
acting on behalf of Respondent Union in violation of Sec-
tion 8(b)(2) and (1)(A) of the Act.5 At the outset, it is noted
that the record discloses that neither of said foremen se-
lected Mitchell for discharge nor was in any way responsi-
ble therefor. Nevertheless, the entire record will be consid-
ered to determine whether the General Counsel has proved
by a preponderance of the evidence that Respondents
committed the unfair labor practices alleged, regardless of
the failure to prove that the specific agents alleged were
responsible therefor.'
In order to find against both Respondents, it will be
necessary to find, based upon a preponderance of the evi-
dence, that Mitchell's layoff was predicated upon an un-
derstanding between Respondents that travelers were to be
laid off prior to members, or that Respondent Union, in
some fashion, caused Mitchell to be selected for layoff be-
cause he was not a member of the Union. Even if these
alternatives are not proved, the issue must also be consid-
ered whether Respondent Employer, itself, violated the Act
by selecting Mitchell for layoff because he was a nonmem-
ber of the Union.
According to his credited testimony, Harold Krie, Re-
spondent Employer's general foreman, was the supervisor
who selected Mitchell among the others who were laid off
on both the above-mentioned dates. Fuller, who was ap-
parently Mitchell's foreman at the time of the May 12 lay-
off, credibly testified that he did not participate in the se-
lection of employees to be laid off; that he lost five men
out of a crew of eight; that of the five only one (apparently
Mitchell) was a traveler, and that he cannot remember
whether any one of the three who remained was a traveler.
Morgan, who was apparently Mitchell's foreman at the
time of the June 16 layoff, credibly testified that he did not
participate in the selection of men to be laid off and that
two or three out of his crew of eight were laid off; that,
5 Fuller on May 12 and Morgan on June 16
At the conclusion of the hearing, the General Counsel moved to con-
form the pleadings to the proof and to amend the complaint by substituting
other names for those of Fuller and Morgan Although this motion was
denied, I indicated that I did not believe the failure to allege the appropriate
agents was material The denial of said motion is more fully discussed here-
mbelow, in the consideration of the aforementioned motions of General
Counsel to reopen the hearing, to amend the complaint, and to conform the
pleadings to the proof
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while he thought Mitchell was the only traveler he had in
his crew, he was not sure. There is nothing in Mitchell's
testimony which would even tend to indicate that either
Fuller or Morgan played any part in selecting him for lay-
off except that each of them notified him to go to where he
was notified that he was laid off and handed his check. On
May 12, it was Krie who gave him his check and on June
16 it was Walter Spurgeon, the shop steward.
Krie further credibly testified (as to the layoff on May
12) that he was notified by Herman Steinseifer , Respon-
dent Employer's superintendent, to lay off about 25 men;
that certain areas were out of material , and certain jobs
were being completed, and it was from crews in such areas
that he selected the men for layoff.' Krie further credibly
testified that he did not know which employees on the job
were or were not travelers, 8 that he did not know Mitchell
was a "traveler"; that he did not know Mitchell; that he
consulted no one connected with the Union in making his
selection; that there was no understanding with the Union
or its representatives as to priorities on layoffs; that he
arbitrarily selected the men to be laid off from each crew
where they were not needed without any criteria; and that
the same procedure was followed on the June 16 layoff.
There is credible testimony which supports the inference
that there was no understanding with the Union or consul-
tation with any of its representatives as to selection of men
for layoffs. Spurgeon credibly testified that on the day after
the May 12 layoff a business representative of the Union,
Ed Olson, visited the jobsite and he had a conversation
with him; that Olson knew about the layoff; that Olson
"was wanting to know if there were any `travelers' left on
the job"; that he told him there were and that Olson re-
plied that "there's not much he could do about it." This
reply by Olson supports the above-credited testimony that
there was no understanding between the Respondents as to
priorities on layoffs.
In addition, Steinseifer testified that after the first layoff,
Spurgeon, the shop steward, came to see him and following
is Stemseifer 's credited testimony with respect thereto:
A. I think it was his complaint that he would like to
be included as to the selection of the layoff. I believe I
informed him that it was not the Union's prerogative
to be in on the selection-it was the Employer's pre-
rogative for the layoff.
Q. Did he complain about a lack of notice of the
layoff?
A. I beg your pardon?
Q. Did he complain that he didn't get notice of the
layoff?
A. No, he really did not complain there, but he said
on any future layoffs, he would like to participate in
them, and I told him that was-
JUDGE GILBERT. That's Spurgeon who says this?
' Stemseifer credibly testified that he merely told the general foremen
how many men to lay off, and left it to them to select the individuals, and
that there was no understanding or consultation with the Union or its repre-
sentatives as to priorities on the categories of employees to be laid off
8 Although there is credible testimony that the dispatch slips, which were
turned in to the Company when the Union referred an applicant, contained
information as to what local the applicant was a member
THE WITNESS: Yes. And, I told him it was not the
prerogative of the Union, but of the Employer, on the
layoffs.
Q. [By Mr Rasmussen] Did you ever, then, partici-
pate with him in deciding who to lay off?
A. No
To support General Counsel's contention that he has
proved the allegations of the unfair labor practices he sets
forth in his brief 12 points which are considered herembe-
low:
(1) Statistics demonstrating that an inordinate num-
ber of travelers were laid off on May 12 and June 16
when compared to the layoff of non -members.
The "inordinate number" referred to is not based on the
number of travelers laid off as compared to members,
since, in the three instances, the members laid off outnum-
ber the nonmembers by two to over three times. Rather,
the General Counsel is referring to the percentage of each
category laid off as compared with the total of said catego-
ry employed. To illustrate: on May 3, two members were
laid off out of a total of 167 members employed, as com-
pared with one nonmember out of a total of 15 employed;
on May 12, 17 members out of a total of 165, as compared
with 9 nonmembers out of a total of 14; and, on June 16,
30 members out of a total of 146 as compared with 9 non-
members out of a total of 20. Of the three instances, the
characterization of "inordinate" can only be aptly applied
to the May 12 layoff at which time almost two-thirds of the
travelers were laid off as compared with a little over 10
percent of the members. There were too few laid off on
May 3 (only three) to provide a meaningful comparison
and on June 16 a little over 40 percent of travelers were
laid off as compared with a little over 20 percent of the
members, which, to my mind, cannot be clearly considered
to be "inordinate." These comparisons do not, in my opin-
ion, justify drawing an inference that it was the practice of
Respondent Employer to lay off travelers before laying off
members, or that there was an understanding between Re-
spondents that such a practice be followed. In any event, a
disparity in percentage, without more, can only give rise to
a suspicion and I do not find that the record supplies fac-
tors which can appropriately provide a basis for finding
that more than a mere suspicion exists.
(2) Testimony explaining that only non-member
welders and special category travelers were not laid
off. Regardless of Krie's denial of any knowledge con-
cerning which electricians were members, the fact that
all non-members were laid off with the exception of
those possessing these special skills while most mem-
bers working as general electricians were retained is
beyond coincidental reality
Apparently the thrust of this argument is that the travel-
ers who were retained on May 12 would also have been
laid off, but for the fact that there were no members avail-
able to do their work. There is insufficient evidence to sup-
port this argument. Krie testified that he laid off employees
9 New York Shipping Association, Inc, Pittston Stevedoring Corp, 114
NLRB 1556, 1561 (1955), Maxon Construction Company, Inc, 112 NLRB
444, 458 (1955)
GENERAL-HASKELL-AMELCO
from areas where they were not needed and his retention of
said travelers was consistent with said testimony. There is
no probative evidence that there were no members avail-
able to carry on their work.
(3) Business manager Ed Olson's special visit to Re-
spondent G.H.A.'s project on May 13 to insure that all
travelers were laid off.
It appears from Spurgeon's credited testimony that it
cannot be said that Olson made the visit to the jobsite to
"insure that all travelers were laid off," since he told Spur-
geon that he could do nothing about the travelers who were
retained. While it may be inferred from Spurgeon's testi-
mony about Olson's visit that the Union preferred to have
travelers laid off before members were, as pointed out
above, his admission of lack of power to do anything about
the travelers retained strongly supports the finding that
there was no understanding between Respondents about
priority in layoffs which would have enabled him to take
any action to "insure that all travelers were laid off."
(4) Complaints by traveler electricians that not all
travelers were laid off in conformity with area prac-
tice.
While there was some testimony of such complaints, at
most it tends to support General Counsel's contention that
generally the Union succeeded in establishing agreements
with other employers in the area with regard to priority on
layoffs and that this was known to travelers and also its
members. It is noted at this point that General Counsel
attempted to introduce evidence of such agreements with
other employers in the area and the members' knowledge
thereof. I refused to permit such evidence since it would
have unduly prolonged the hearing to litigate the issues of
what instances of such areements existed in order to es-
tablish an area practice 19 and the basis of members' and
nonmembers' knowledge thereof. Even if an area practice
were proved, it would not be material to the issue of wheth-
er such agreement existed between Respondents (particu-
larly since it was not a member of the aforementioned as-
sociation and had only been in business for approximately
6 months at the time material herein). As to the under-
standing of members and travelers of the Union's success
in obtaining such agreements, while it appears from the
complaints from travelers (ostensibly of the failure to treat
travelers equally) and other testimony in the record that
both members and nonmembers did have such under-
standing, as explained hereinbelow, their understanding is
of no materiality in deciding the issues herein.
(5) Shop steward Spurgeon's inquiry to project super-
intendent Steiseifer concerning traveler Little being
retained and Steinseifer's explanation as to why this
exception occurred. This response must be recognized
as an admission that travelers were laid off first and it
demonstrates that there was a policy of preferential
treatment for members known to Respondent G.H A.
10 Which would involve findings of unfair labor practices of Respondent
Union and unnamed employers who are, of course, not parties to this pro-
ceeding
1361
The Spurgeon-Stemseifer conversation would other-
wise be ludicrous.
It is noted that according to Spurgeon's testimony "book
I" men were members of the Union and it is further noted
that Mitchell was a book I man. In any event as to
Spurgeon's inquiry of Steinseifer about Little and his re-
sponse cannot constitute a basis for finding that there was
an agreement between Respondents with regard to priori-
ties on layoffs. At most, it can be construed as a recogni-
tion by Stemseifer that the Union sought priority for mem-
bers. The explanation that Little was needed is consistent
with his instructions to Krie to lay off men in areas where
they were not needed. More important, however, is
Steinseifer's credited testimony that he denied Spurgeon's
request that the Union be consulted in future layoffs and
that he stated to Spurgeon that the matter of layoffs was
solely management's prerogative.
(6) Shop Steward Spurgeon's admission that he be-
lieved travelers were to be laid off before members
according to established Respondent Local 46 policy.
(7) Spurgeon's statements to Mitchell and Rice that
travelers were to be laid off first by Respondent
G H.A.
The above-mentioned admission and statements made
by Spurgeon are of no consequence. As to the admission,
he stated that it was his personal belief. The record reveals
that he played no part in the selection of employees for
layoff and there is no basis for inferring that his belief was
predicated upon his knowledge of the existence of such an
agreement between Respodents. Moreover, according to
the above-mentioned credited testimony of Stemseifer it
was made quite clear to Spurgeon that no such agreement
existed. As to the statements he made to Mitchell and Rice,
it is clear from the record that he had no basis for such
declarations. Moreover, the record reveals that they were
not true, since five nonmembers were retained on the May
12 layoff and 11 on the June 16 layoff.
(8) Krie's admission to Mitchell about May 12 that it
"could be" travelers were being laid off first. Krie
made the selection of employees for layoff!
This is predicated upon the uncontradicted testimony of
Mitchell, since Krie was not questioned about said testimo-
ny. While ordinarily, I would credit uncontradicted testi-
mony, I am not inclined to credit this portion of Mitchell's
testimony which was not convincing. Krie was a convinc-
ing witness in testifying that he did not know who were
travelers and that he did not know Mitchell (which testi-
mony I credited) Therefore, it appears most unlikely Krie
would have made a statement to Mitchell which is so in-
consistent with his credited testimony.
(9) Krie's incredible and generally untrustworthy tes-
timony denying that he had knowledge of whether
electricians were travelers or members and his failure
to provide a rational explanation how individuals were
chosen for layoff
(10) The fact that non-membership in Local 46 was
written on dispatch slips given to the shop steward and
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer What legitimate need is there for this infor-
mation.
It appears that Krie had a source of information as to
who were or were not travelers, the dispatch slips which
contained a notation of which local the referred applicant
for employment was a member It appears that the dis-
patch forms were used for all dispatches to all employers.
It cannot be inferred that such information on the copy
furnished to any particular employer was intended to im-
plement an agreement on priority on layoffs or was solely
for the Union's internal purpose, such as a record to aid in
the enforcement of the financial requirements imposed
upon travelers for use of the hiring hall. In any event, since
the dispatch slips sent with referrals to Respondent Em-
ployer were the same as sent to other employers, it cannot
be inferred that the information with respect to the mem-
bership constituted evidence of an agreement between Re-
spondents with respect to priorities on layoff even assum-
ing that such agreements existed between the Union and
other employers and the information contained on the dis-
patch slips was used by other employers to implement such
agreements. Since I credit Krie's testimony that he did not
know who were or were not travelers, I infer that he did
not examine the dispatch slips to obtain such information
Krie's testimony that he made the layoffs from crews
which were short of materials or whose workload was de-
creased because their particular job was nearing comple-
tion, is both rational and credible. There is color of merit,
however, in General Counsel's argument with respect to
Krie's testimony that he used no criteria in selecting for
layoff the members from such crews, but made the selec-
tions at random. But since I credit his testimony that he
had no knowledge of who were or were not travelers, I
cannot infer that he used nonmembership in the Union as
a criterion for selection. It is noted that in the May 12
layoff, for example, five of the eight men in Mitchell's crew
were selected, including Mitchell. According to the cred-
ited testimony of Fuller, who was the foreman of the crew,
the other four were members I do not find it appropriate
to infer that Mitchell would not have been among the five
selected but for his nonmembership in the Union.
(11) Laying off traveler electricians before members
of Respondent Local 46 as an established practice
known to Respondent G.H.A. Business Agent Olson,
Shop Steward Spurgeon, employees, and foreman
Krie who selected the employees for layoff on May 12
and June 16 Although knowledge of this customary
procedure is established by circumstantial evidence,
direct testimony concerning this practice was improp-
erly excluded.
(12) Foreman Krie was aware that Respondent Local
46 expected him to lay off travelers first, which he did
on May 12 and June 16, because of his knowledge and
familiarity with its policies and practices. This evi-
dence was improperly excluded. He has been a mem-
ber of Local 46 since 1957.
Even assuming that Respondent Employer, Olson, Spur-
geon, and Krie knew that an area practice existed to lay off
travelers before members, I cannot find, because of such
knowledge, Mitchell's layoff was caused by Respondent
Union or that Respondent Employer laid him off because
of such knowledge. As for Olson and Spurgeon, there is no
probative evidence in the record that they played any role
in the selection of employees for layoff. As for Krie having
such knowledge, in view of the findings hereinabove, I do
not believe it appropriate to infer that such knowledge was
a factor in his selecting Mitchell for the layoffs on May 12
and June 16.
In view of the above findings, I am led to conclude that
General Counsel has failed to prove by a preponderance of
the evidence that Mitchell's status as a traveler was a basis
for selecting him for layoff on May 12 and June 16.
General Counsel's Motions After Close of Hearing
As noted heremabove, General Counsel filed certain mo-
tions after the close of the hearing; first is a motion to
reopen the hearing in order to elicit from Krie and other
individuals "their knowledge of Respondent Local 46's
practice and policy" that preference be given members
during layoffs. As stated hereinabove, even if such knowl-
edge were assumed, it would not alter the findings and
conclusions reached. Therefore, no purpose would be
served in reopening the record to elicit such evidence. As
noted, hereinabove, proof of such policy and practice
would require a considerably prolonged hearing and it
would be of no material value in the disposition of the
issues in this proceeding.
As to General Counsel's motion to amend the complaint
and to conform pleadings to the proof. In essence, the mo-
tion was for the purpose of substituting individuals other
than the alleged Fuller and Morgan as agents of Respon-
dents. It is noted that in response to a motion for a bill of
particulars prior to the hearing, General Counsel stated in
his opposition thereto in part as follows.
In the event that Counsel for the General Counsel
does not adduce competent proof of the under-
standing between the Employer and the Union that
nonmembers of Local 46 be laid off prior to members
or that Fuller and Morgan were agents of the Respon-
dent, then General Counsel's case will fail.
In essence , by this motion and the above-mentioned mo-
tion, General Counsel in attempting to try the case on a
different theory and set of facts from that which Respon-
dents were led to understand they would be required to
defend. In any event, in disposing of the issues in this case,
in my Decision, I considered, by way of assumption, the
"different" theory and the set of facts which General
Counsel seeks to advance and found, in effect, that even if
the amendments were granted it would not alter my con-
clusions Therefore, no purpose would be served in grant-
ing either this or the above motion.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Employer is, and at all times material
herein has been, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
GENERAL-HASKELL-AMELCO
2. Respondent Union is, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act
3. The General Counsel has failed to prove by a prepon-
derance of the evidence that either Respondent Employer
or Respondent Union violated the Act by the layoffs of
George W. Mitchell on May 12 and June 16, 1975, as al-
leged in the complaints herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to the Section 10(c) of
the Act, I hereby issue the following recommended.
ORDER I'
1363
The complaints herein should be, and are hereby, dis-
missed in their entirety.
'' In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes