Greyhound Lines, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1985

275 N.L.R.B. 1167 (N.L.R.B. 1985)

GREYHOUND LINES
Greyhound Lines; Inc. and Diomedes Viera . Case 2-
CA-20120
22 July 1985
DECISION-AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 14- March 1985 Administrative Law Judge
Eleanor MacDonald' issued the attached decision.-
The General Counsel' filed exceptions and a 'sup-
porting brief, and the Respondent filed an answer-
ing brief to the General Counsel's exceptions.
The Board has considered the decision and the
record in light of the exceptions' and briefs and
has decided to affirm the judge's rulings, findings,
and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
We note that the Respondent has filed no exceptions concerning its
preheating contention that the complaint should be dismissed because it
contained postcharge allegations averred in the absence of an amended
charge
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was tried in New York, New York, on July 12
and August '22, 1984. The amended complaint alleges
that Respondent, in violation of Section 8(a)(1) of the
Act, on January 9 and 13, 1984, told its employees who
had resigned from the Union it would pay their reinitia-
tion fees as a reward for having crossed the Union's
picket line; on January 13, 1984, told its employees that
it would pay initiation fees, to, the Union if they agreed
not to file charges with the Board; and on January 9 and
13, 1984, told its employees that 'they did not have to
join the Union as a' condition of continued employment
with Respondent notwithstanding the existence of a con-
tract with a union-security clause Respondent admits it
promised to pay initiation fees but denies that this was a
reward for crossing the picket line. Respondent denies
that it told employees they did not have to join the
Union and denies it promised to pay initiation fees if em-
ployees did not file charges with the Board.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent
in October 1984, I make the following
FINDINGS OF FACT -
1167
1. JURISDICTION
Respondent, 'a California corporation, with a terminal
in New York, New York, is engaged in the interstate and
intrastate transportation of passengers and freight. Annu-
ally, Respondent derives 'gross . revenue in excess of
$50,000 for the transportation of.passengers and freight
in interstate commerce I find. that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that Amalgamated
Transit Union, Local 1202, AFL-CIO is a labor organi-
zation within the meaning of Section 2(5) of the Act.
11. ALLEGED UNFAIR LABOR PRACTICES
Respondent's employees engaged in an economic strike
nationwide beginning at 2 a.m. on November 3, 1983,
and ending December 19, 1983. Some employees crossed
the picket lines and worked during the strike. In Re-
spondent's New York region, some drivers returned to
work and 14 terminal employees worked during a part of
the strike. The instant case concerns only the terminal
employees; no evidence was presented concerning any
action concerning-the nonstriking drivers.
On the first day of the trial,, the General Counsel
stated that she had subpoenaed a . number of witnesses,
none of whom were present at the trial. An adjournment
was granted to permit enforcement proceedings in dis-
trict court. When the instant trial reconvened, two wit-'
nesses (Emma Harmon and Nadine Coles) were-present
on behalf of the General Counsel by order of the district
court. The General' Counsel described on the record the
extensive and unsuccessful efforts she had made to serve
Diomedes Viera who was no longer employed by the
Company. The General Counsel' attempted to serve
Viera with subpoenas at various addresses; Viera had
moved and 'one -subpoena was returned marked "re-
fused." In the meantime, the General Counsel learned
that Viera had, been arrested and then 'released with a
court appearance scheduled for July 9, 1984 Viera did
not appear on July 9 and at last report there was a war-
rant out for his arrest. The General Counsel did not ask
for any further adjournments, to pursue Viera or any
other witnesses.
A. Testimony of Emma Harmon
Emma Harmon is a janitor in Respondent's New York
City Maintenance Department. Harmon resigned from
the Union about November 12, 1983; she returned to
work on November 14. At this time, Terminal Director
Bob Langan told her she did not have to join the Union
as a condition of continued employment at Greyhound.
After the new contract was agreed on and the strike was
over, until January 5, 1984, the employees who had re-
signed their union membership did not hear they would
have to join the Union. On January 5, Terminal Manager
William O'Toole said-they would not have to join "to
his knowledge." But by this time they had all heard
rumors that the employees would have to rejoin the
Union. Harmon stated that "[alt that time, everything
was up in the air. Nobody really knew." O'Toole had re-
275 NLRB No. 166
1168 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
ceived a letter from the Union demanding that the em-
ployees fill out new membership cards, and he said he'
would get back to the employees with the correct infor-
mation . On January 6, 1984, O'Toole informed Harmon
by telephone that she would have to rejoin the Union
and pay "back initiation fees " On January 9, 1984, at
8.45 or 9 a.m, nine employees who had resigned from
the Union met with Respondent's regional vice president
A. C. McLaughlin and Regional Director-T C. Lenihan
to discuss this news. At the meeting, Harmon began -by
stating that the employees were upset because they had
to rejoin the Union and in some cases pay initiation fees
or they would risk losing their jobs. McLaughlin re-
sponded that he had tried to straighten this out in discus-
sions with the company headquarters in Phoenix. The
first proposed contract, which was rejected by the em-
ployees, would have protected nonstriking employees
from retaliation The actual contract did not contain that
clause. Employee Acosta then said that McLaughlin had
previously stated that the employees would not have to
rejoin ' the Union. McLaughlin responded that that was
what he had been told, but that he had. since learned- to
the contrary and that there was a union-security clause
in the contract. Harmon said she felt the nonstriking em-
ployees had been misled. McLaughlin-said he had not
misled the employees on purpose. Lenihan asked the em-
ployees what they felt was the Company's obligation to
them; in response, the employees told McLaughlin that
they felt the Company had an obligation to pay their ini-
tiation fees because they,"had stuck behind the Company
and we felt they should stick behind. us in this."
McLaughlin concluded by saying the employees had
stuck behind the-Company but he would look into it and
see what he could do.
After this meeting, the employees went to the Board
because they were upset about having to pay initiation
fees. They attempted to file charges against both the
Union and Greyhound. The charge of January 9, 1984,
prepared by the Board agent and signed by Viera, states
that since November 3, 1983, the Employer has solicited
the employees to withdraw from the Union. -
On January 13, 1984, Harmon called the president of
the Company in Phoenix to ask what was being done
and she was promised that an answer would be forth-
coming concerning the payment of initiation fees; later
that afternoon, O'Toole called her and said the Company
had agreed to pay the initiation fees. The next day,
Langan spoke to Harmon and employees Nadine Coles,
Edna Blume, Elijah Harte, Viera, and Acosta. He said
the Company would pay their initiation fees. When
Harmon asked if this were illegal, he said, "[L]et the
Company and the Union deal with it." Harmon then
asked Langan if he had received a complaint from the
Board Langan said, "Yes, that he had talked to Viera
and Viera had told him that he was going to withdraw
the charges, because we all had agreed upon the charges
being dropped. We felt that everything had been set-
tled."
Harmon spoke to Viera and'spoke to Ayabearreno •at
the Board The latter told her there would be no prob-
lem withdrawing the charges and that Viera could come
do this any time When Viera attempted to withdraw the
charges, however, he was not permitted to do. so.
On cross-examination, Harmon stated that she had
never been told and had never been given the impression
that payment of initiation fees by the Company was a
reward or bonus for-having crossed the picket line Fur-
ther, the Company did, not promise to reimburse employ-
ees for initiation fees prior to the termination of the
strike. As of the date of the trial, her initiation fees had
not been reimbursed and she has not been readmitted to
the Union. Harmon testified that in no conversation with
any company supervisor was the, subject of the charge
before the Board and the reimbursement of initiation fees
ever discussed together.
B Testimony of Nadine Coles
Nadine Coles, a baggage clerk in Respondent's New
York City facility, testified that she returned to work
about 2 weeks after the strike began and resigned from
the Union about 1 day after she returned to work. After
the strike was over, she heard a rumor that she would
have to rejoin the Union; she confronted O'Toole some-
time in the middle of December and he confirmed the
fact that the contract had been negotiated and she would
have to rejoin the Union. During the strike, O'Toole had
"made it clear that once we had resigned from the Union
that . . . we didn't have to rejoin."
After the strike was over, about January 9, 1984, Coles
and employees Bill O'Neill, Flemming, Acosta, Viera,
and Harmon met with McLaughlin and Lenihan.
McLaughlin said that there had been an amnesty clause
in the contract, but now they did have to rejoin the
Union. The employees and management wanted to find a
solution to the problem without further confrontation be-
cause the employees' jobs were on the line. The employ-
ees told management they did not want to pay the initi-
ation fees, and they asked the Company to pay the fees.
In response to demands by Coles, Harmon, Viera, and
O'Neill, McLaughlin said the Company would pay initi-
ation fees if this could be done legally .
Several days after this meeting, Lenihan told a group
of employees that the problem had not yet been re-
solved.
Coles was one of. the group which sought to withdraw
the charge before the, Board. She did not think with-
drawing the charges had anything, to do with whether
the Company would pay her initiation fees.
Coles testified that she was not given the impression
that initiation fees would be reimbursed as a reward for
crossing the picket line In fact, when the employees first
requested that their fees be reimbursed, management said
it would have to seek legal counsel before giving an
answer. She participated in filing the charges at the
Board because she was seeking to protect her job, she
wished to withdraw the charge because' she saw that nei-
ther the Union nor the Company was seeking to make
her rejoin the Union.
C. Testimony of T. C. Lemhan
T. C. Lenihan is regional director of Respondent in
New York City. He testified that the 'Company resumed
GREYHOUND LINES
operations after the strike on December 19, 1983. A col-
lective-bargaining agreement was reached between the
Company and the Union on December 3, 1983. It con-
tained both an amnesty provision providing that there
would be no retaliation by the Union or the Company
and a union-security clause On December 9, 1983,
George Green, Respondent's vice president of industrial
relations, sent a teletype to the New York terminal
which Lenihan distributed to management and to some
employees who had raised questions concerning union
membership. The teletype stated that employees who
had resigned their union membership during the strike
had .31 days to tender the dues and initiation fees re-
quired to maintain membership in good standing in the
Union.
Lenihan testified that he met with a group of 14 em-
ployees on January 9, 1984. Lenihan tried to determine
whether the employees had applied for readmission to
the Union. The employees expressed their feeling that
the Company had. misled them into believing that they
would not have to become members of the Union; as a
result the employees would have to pay an initiation fee
to the Union The employees asked the Company to re-
imburse the initiation fee and Lenihan agreed to pursue
the question and get back to. the employees with an
answer.
Lenihan believed that there had been a misunderstand-
ing and that if the problems were not resolved, it would
end up in the grievance procedure. He believed that if
there was a misunderstanding, Respondent should pay
the initiation fees.
Lenihan testified that he never promised that initiation
fees would be reimbursed as a bonus or reward for em-
ployees who crossed the picket line. Lenihan stated that
he had had conversations with employees about whether
employees had to retain union membership. During those
conversations, Lenihan said that if an employee resigned
from the Union and the Union then refused to accept his
initiation fees and dues, he would not be obligated to
become a member of the Union in order- to continue in
Respondent's employ
After January 9, 1984, according to Lenihan, Respond-
ent decided to pay reinitiation fees of employees who
had crossed the picket line.
Lenihan did not discuss with the employees the fact
that a charge had been filed with the Board
I find that the witnesses- testified credibly and I shall
rely on their testimony.
D. Admissibility of the Viera Affidavit
The General Counsel moved for admission of the affi-
davit of Viera given to a Board agent on January 24,
1984. The General Counsel stated on the record that this
is the only evidence-"that as_a condition for paying the
initiation fees of the employees , the Company asked, at
least Mr . Viera,- to withdraw his charge at the NLRB."
The material statement contained in the Viera affidavit is
as follows:
On or about January 12, 1984 , at approximately
8.30 am Langham , the terminal director called
Emma Harmon , Eddie Acosta, Elijah Hail, Edna
1169
Blume, Bill O'Neill and myself (I can't remember
•the others who were there) and he told us that
Greyhound has come -to an understanding Grey-
hound has agreed-to pay the' initiation fees, what-
ever it might be, of the strikebreakers. Langham
then said that it was his personal opinion that Grey-
hound paying for the initiation fees was wrong. He
didn't say why. Langham said that he didn't know
how Greyhound was going to pay us, whether di-
rectly to the Union or to the strikebreakers.
Langham said that part of the agreement was that
in return for paying our initiation fees we could not
bring any civil suit or any charges with the Labor
Board against Greyhound Langham then said that
we had till January 21, 1984 to fill out the Union
membership cards, and that the Union would have a
vote to decide whether the Union will accept us as
members. I asked him if the Union does not -accept
us as members does that mean that we don't have a
job. He said no; he said that Greyhound pays us our
salary, not the Union. This is all I can remember
that occurred in this meeting.
The General Counsel cited Federal Rules of Evidence
804(b)(5) as requiring admission of Viera's' affidavit into
evidence. The issues raised by the motion to admit the
affidavit into evidence are whether it has equivalent cir-
cumstantial guarantees of trustworthiness as statements
admitted under the other hearsay exceptions enumerated
in Rule 804(b) and whether it is more probative on the
content of Langham's statement to employees than any
other reasonably obtainable evidence.
The courts are not agreed on the admissibility of affi-
davits pursuant to the exception stated in Rule 804(b)(5).
Justak Bros. & Co. v. NLRB, 664 F.2d 1074 (7th Cir.
1981), and NLRB v. United Sanitation Service, 737 F.2d
936, 937 (11th Cir. 1984), are both cases which discuss
the question whether a Board affidavit has "equivalent
circumstantial guarantees of trustworthiness", in these
cases, the courts reach opposite conclusions. -
The discussion of Rule 804(b)(5) in 4 Weinstein, Evi-
dence T 804(b)(5)(01), suggests that the document should
not be admitted where no efforts have been made to
obtain other available evidence and where there is no
strong corroboration- of the statement sought to be intro-
duced. .
At the trial herein, I denied the General Counsel's
motion to admit Viera's affidavit into evidence. The
General Counsel stated on the record that the meeting
referred to in Viera's affidavit as having occurred.on or
about January 12, 1984, and the meeting testified to in
detail by Harmon as a meeting of January 13 or 14, 1984,
were actually the same meeting. That meeting was cited
in the complaint as "on or about January 13th" accord-
ing to General Counsel because "witnesses occasionally
can't remember the exact date." When it was pointed out
to the the General Counsel that a witness had just testi-
fied about' the meeting, thereby conflicting with the re-
quirement of Rule 804(b)(5)(B), the General Counsel
stated that it was not clear whether it was the same
meeting or not. This is,the position taken in the General
Counsel's brief and elaborated therein in greater detail.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have decided to adhere to the ruling made at the
trial . As discussed on the record at the trial, two wit-
nesses were present who, according to their testimony,
had attended that meeting described in Viera's affidavit
and these witnesses were examined about the meeting.
Further, Viera names in his affidavit several other em-
ployees of Respondent who were present at the meeting.
The General Counsel has not shown that efforts were
made to secure the testimony of these witnesses and that
they were unavailable. Thus, the General Counsel has
not shown that Viera's "statement is more probative on
the point for which it is . offered than any other evidence
which [she) can procure through reasonable means."
Further, the General Counsel produced no corroborating
evidence for the statements in Viera's affidavit. I have
found Harmon, Coles, and Lenihan to be credible wit-
nesses; none of them corroborated Viera's affidavit in its
material assertions.
Discussion and Conclusions
There is no evidence in the record that Respondent,
about January 9 and, 13, 1984, told its employees that
they did not have to join the Union as a condition of
continued employment. Neither is there any evidence - in
the record that about January 13, 1984, Respondent told
its employees that it would pay their initiation fees to the
Union if they agreed not to file charges with the Board.
The only allegation in the amended complaint which
requires discussion is the claim that the Company, about
January 9 and 13, 1984, promised employees that it
would pay their initiation fees as. a reward for having
crossed the picket line.
The General Counsel urges that any offer to pay the
initiation fee, without more, is a violation of the Act. It
is true-that, in a number of cases, the Board has found a
violation of Section 8(a)(1) and (2) .where `an employer
has offered to pay the initiation fees or dues of its em-
ployees.' However, it has always been clear that the vio-
lation was based upon a finding ,that the employees' free-
dom to exercise Section 7• rights was restrained. Thus, in
Eastern Missouri Contractors' Assn., 80 NLRB 509, 514
(1969), cited by the General Counsel, although the Board
agreed that the payment-of union fees and dues has fre-
quently been held to violate the Act because "it induces
and encourages . .-,joining of the union, thereby impair-
ing freedom of choice," it nevertheless found no viola-
tion where; 'an employer had made a payment to' the
union because the sum was insubstantial and there was
no other evidence 'of assistance to the union It seems
that there is no such per se rule as is urged by the Gen-
eral Counsel and that each payment or offer of payment
must be examined to see whether it restrains or coerces
' Business Envelope Mfrs of Tennessee, 227 NLRB 280 (1976), violation
where employer offered to pay if employees would rejoin the employer-
favored union, Stockton Door -Co, 218 NLRB 1053 (1975), violation
where employer offered to pay initiation fee of union it favored, Dura-
Vent Corp, 235 NLRB 1300, 1302 (1978), "An employer violates Section
8(a)(1) and (2) by offering to pay dues and initiation fees for employees to
a union which does not represent them", Cardivan Co, 271 NLRB 563
(1984), violation of Sec 8 (a)(1) where employer promises to reimburse
initiation fee if the union is rejected at the election
employees or interferes with their exercise of Section 7
rights. - -
Bearing this in mind , it must then be asked whether, as
alleged in 'the amended complaint; Respondent promised
to pay the employees' initiation fees as a reward for their
having crossed the picket line during the strike and
whether this promise coerces employees with respect to
Section 7 rights. It is clear , both from the testimony at
the trial and from the dates given in the amended com-
plaint, that Respondent made no such offer while the
strike was in progress. Further, I find that the testimony
of the witnesses establishes that there was no mention of
a quid pro quo by the Company. In my view, the evi-
dence taken together does not show that management
told the employees it was rewarding them or paying
them extra compensation for having crossed the picket
line We must still ask whether the offer of payment nev-
ertheless reasonably - tended to operate as a reward and
therefore as a violation of Section 8(a)(1).
In cases where the'Board has found a violation in an
employer's payment to nonstriking employees, the Board
has made it clear that the finding was based on an actual
interference or tendency toward interference with the
right to strike. Thus in Aero-Motive Mfg. Co., 195 NLRB
790 (1972), enfd. 475 F.2d 27 (6th Cir. 1973), the Board
found that the company unlawfully paid a $100 bonus to
all nonstriking employees for risking their health, proper-
ty, and -peace of mind. The Board reasoned that in light
of the protection given to the employees' right to strike
the employer could not interfere with that right by de-
priving strikers of a benefit given to nonstrikers.' The
payment to the nonstrikers "demonstrated for the future
the special rewards which lie in store for employees who
choose to refrain from protected strike activity " 195
NLRB at 792. Pointing out that all nonstrikers received
the bonus without any reference to the risks they actual-
ly took, the Board held that the objective impact of the
payment was to give special benefits to strikers in viola-
tion of Section 8(a)(1). In Technitrol, Inc, 201 NLRB 74
fn. 2'(1973), the Board held "Respondent's payment to
nonstrikers of a day's pay for a day not worked violated
8(a)(3) and (1) because Respondent' s sole motivation
therefor was to reward the nonstrikers for not joining
'the strike." In Huck Mfg. Co., 254 NLRB 739 (1981), the
Board found that an employer violated Section 8(a)(1)
and (3) where, for work performed on a day before the
strike, it later paid double time to employees who did
not join the strike and single time to employees who did
join the'strike. This finding was sustained by the court in
Huck Mfg. Co. v. NLRB, 693 F.2d 1176 (5th Cir. 1982),
but the court did not agree that the employer committed
a violation when it paid the nonstrikers at higher than
usual rates during the strike. This last question had not
specifically been considered or discussed by the adminis-
trative law judge or the Board. According to the court,
although the higher wages during the strike had a tend-
ency to coerce employees, the nonstriking employees
had requested the payments for setting production
records and suffering harassment during the strike. This
provided a business justification, according to the court,
which outweighed the coercive effects of the payments.
GREYHOUND LINES 1171
In World Publishing Co., 220 NLRB 1065 (1975), the
Board adopted the administrative law. fudge's decision
finding no violation in the company's payment of bo-
nuses to nonstriking employees. Noting that.the bonuses
were paid to nonunit employees and supervisors, and em-
phasizing the business justification present in rewarding
exceptionally hard work, the administrative law judge
found that payments did not interfere with the nonunit
employees' right to honor the picket line because they
were not announced until after the employees had a]-
ready crossed the picket line. Further, the payments did
not interfere with the striking employees' future option
to go on strike because, according to the administrative
law judge, they were not aware of the payment during
the strike and could not be demoralized by it.
Similarly, in the Supreme Court cases cited by the
General Counsel, the Court engaged in a lengthy analy-
sis of the harm reasonably to be expected by the granting
of special benefits to strikers. NLRB Y. Erie Resistor
Corp., 373 U.S. 221 (1963), NLRB v. Great Dane Trailers,
388 U S. 26 (1967)
Recently, in Dean Foods Co., 266 NLRB 1069, 1070
(1983), the Board considered an alleged violation of Sec-
tion 8(a)(1) where the employer offered to pay any fines
imposed by the union upon employees who crossed a
picket line. The Board stated the rule that a violation
would be. made out "when . _ . . it may be inferred that
the purpose and effect of the offer is to tamper, by eco-
nomic inducements, with employees' Section 7 freedom
to honor or not honor a picket line." In the case before
it, however, the Board found no violation because the
employer had assured employees it would take no action
against them if they decided to honor the picket line and
there was thus "neither interference with the right to
work, nor with the right to strike." The Board stated
that it could not infer that Respondent was doing more
than protecting employees from possible union- reprisals.
In the instant case, it is clear from the testimony of the
three witnesses 'that the 'employees who had resigned
from the Union in order to return to, work- during the
strike were angry and confused after the strike was over
when they learned that they might have to rejoin the
Union and pay initiation fees in order to retain their jobs
under the union-security clause of the contract. The em-
ployees believed they had been misled by the Company
into thinking that they would not have, to rejoin the
Union and pay the fees 2 The employees complained to
2 Indeed, it is not clear that the employees may lawfully be charged
initiation fees See Professional Engineers Local 151 (General Dynamics),
272 NLRB 1051 (1984)
the Company and demanded that the Company pay the
initiation fees. Because the Company believed it may
have been responsible for some of the confusion, it
agreed to pay the initiation fees. I cannot find that this
was a reward for having worked during the strike.
Rather, I find that the payment was promised because
the Company believed statements by its managers may
have misled the employees into believing they would not
have to pay initiation fees or rejoin the Union. The ques-
tion of paying the fees came up in the context of manag-
er-generated confusion over the obligations of employees
and the employees asked for the payment because they
thought the had been misled.
The promise to pay initiation fees was not made
during the strike as an inducement to the employees to
cross the picket line. In order for it to be unlawful, it
must have interfered with its employees' Section 7 rights
by showing them that there are future rewards for forgo-
ing striking or other protected activity. I find that, in this
case, Respondent's action merely demonstrated that if
the Company misleads employees at an economic cost to
them, the Company will try to undo the economic harm.
I believe it was clear to the employees that payment was
approved because there had been confusion over em-
ployee obligations after the strike. Nothing in the cir-
cumstances of this case would lead employees reasonably
to conclude that they could expect payments or rewards
from Respondent if they declined to honor future picket
lines or withdrew their support from the Union in other
ways. There was thus no violation of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate 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 recommend-
ed"
ORDER
The complaint is dismissed in its entirety.
9 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 pur-
poses