Louisiana-Pacific Corp.

National Labor Relations Board - Board Decisions

May 26, 1987

283 N.L.R.B. 1093 (N.L.R.B. 1987)

FIBREBOARD CORP.
Fibreboard Corporation , a wholly-owned subsidiary
of Louisiana-Pacific Corporation and Lumber &
Sawmill Workers, Local Union 2652, Lumber,
Production & Industrial Workers Union, AFL-
CIO
Fibreboard Corporation, a wholly-owned subsidiary
of Louisiana-Pacific Corporation and David
Elanreich and Lumber & Sawmill Workers,
Local Union 2652, Lumber Production & Indus-
trial Workers Union, AFL-CIO. Cases 32-CA-
6848 and 32-RD-608
26 May 1987
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 28 January 1986 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The General Counsel and the Charging Party filed
exceptions and supporting briefs. The Respondent
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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, to adopt the recommended Order, and
to certify the results of the election.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is -dis-
missed.
i The General Counsel and the Union have excepted to some of the
judge's credibility findings. The Board's established policy is not to over-
rule an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in-
correct Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d
362 (3d Cir 1951). We have carefully examined the record and find no
basis for reversing the findings
We note that Community Motor Bus Co., 180 NLRB 677 (1970), enf
denied 439 F 2d 965 (4th Cir. 1971), on which the General Counsel relied
in arguing that the Respondent had generally condoned strike miscon-
duct, is distinguishable on its facts from the present case In Community
Motor Bus, an agent of the employer had offered reinstatement to all 18
striking employees who blocked entrance to the plant in a single incident
of mass picketing. Notwithstanding that offer, the employer later dis-
charged 12 strikers for their involvement in that same incident On these
facts the Board found that the employer had condoned the mass picket.
ing' incident and could not thereafter lawfully discharge strikers for it In
the present case, by contrast, a series of different incidents were involved,
and the agents of the Respondent who allowed strikers Joice, Houck, and
Metcalfe to return reasonably believed that they lacked sufficient evi-
dence of participation in serious misconduct to bar their reinstatement
when they offered to return.
283 NLRB No. 167
1093
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Lumber & Sawmill
Workers, Local Union 2652, Lumber, Production
& Industrial Workers Union, AFL-CIO, and that it
is not the exclusive representative of these bargain-
ing unit employees.
Patricia Milowicki, Esq., for the General Counsel.
Robert G. Hulteng Esq. and Thomas Dowd, Esq. (Littler,
Mendelson, Fastiff & Tichy), of San Francisco, Califor-
nia, for the Respondent.
Russell Richeda, Esq. (Bunch & Andrews), of San Francis-
co, California, for the Charging Party.
Harlan Bernstein, Esq. (Jolley, Sokol & Bernstein, PC), of
Portland, Oregon, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Sonora, California, on 29 and 30
April; 1, 2, 3, 20, 21, and 22 May; 10, 11, 12, 241, 25 June
and 16 July 1985. The,initial charge was filed on 18 Oc-
tober 1984 by Lumber & Sawmill Workers, Local Union
2652, Lumber, Production & Industrial Workers Union,
AFL-CIO (Union). Thereafter, on 21 December 1984
the Regional Director for Region 32 of the National
Labor Relations Board issued a complaint and notice of
hearing alleging a violation by Fibreboard Corporation, a
wholly-owned subsidiary of Louisiana-Pacific Corpora-
tion (Respondent) of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act. On 15 February 1985 the
Regional Director issued an amended complaint, adding
additional alleged discriminatees.
Pursuant to a decertification petition filed on 24 July
1984 by David Hanreich, an individual, in Case 32-RD-
608, an election by secret ballot was conducted on 14
September 1984. The tally of ballots reflects that of ap-
proximately 271 eligible voters, 18 employees cast ballots
for the Union and 95 cast ballots against the Union. Ad-
ditionally, there were 149 challenged ballots. Thereafter
the Union filed timely objections to the election, which
objections were overruled by a Decision, 'Direction, and
Order of the Board, dated 12 March 1985. Further, the
Board directed a hearing on ' the challenged ballots. On
17 April 1985 the Regional Director issued an order con-
solidating cases and notice of hearing, consolidating both
the unfair labor practice case and representation case for
purposes of a hearing before an administrative law judge.
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs ` have been received from the General
Counsel, counsel for Respondent, and counsel for the
Charging Party.
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Delaware corporation, with an
office and place of business in Standard, California, has
been engaged in the milling and wholesale distribution of
lumber. In the course and conduct of its business oper-
ations, Respondent annually sells and ships goods or pro-
vides services in excess of $50,000 directly to customers
located outside the State of California.
It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
the Respondent has violated Section 8(a)(1) and (3) of
the Act by refusing to reinstate and by discharging em-
ployees accused of strike-related misconduct, following
their unconditional application to return to work on the
termination of the strike:
B. The Facts
The strike commenced on 24 June 1983 following a
breakdown of bargaining negotiations. Some 19 of Re-
spondent's facilities were struck. There was significant
and extensive violence during the strike, including fire
bombings of plant premises and an attempt to blow up an
electrical substation. The two plants directly involved,
the Standard plant, then managed by Jim Costello, and
the Keystone plant, then managed by Mel Barber, are lo-
cated some 20 miles apart. The Standard plant was
among the two or three locations where the misconduct
was most widespread. The strike resulted in the complete
shutdown of both plants.
On 29 June 1983 Respondent obtained a temporary re-
straining order in the Tuolumne County Superior Court
against the Union and various individuals. Thereafter a
preliminary injunction was issued, followed by the entry
of a consent contempt decree against the Union and vari-
ous individuals because of continued violation of the
court's order.
During this period, Charles Loughran, director of cor-
porate industrial relations, advised the various plant man-
agers that individuals who had been involved in substan-
tial misconduct or some aspects of violence would be in-
eligible for 'reinstatement, but that specific discharge
action ' should not be taken until the Respondent was
faced with offers to return to work. Meanwhile, the Re-
spondent compiled available information, including re-
ports and newspaper articles, regarding the misconduct
of specific employees.
The Keystone facility was one of the first plants to
resume operation during the strike, opening in late Sep-
tember 1983. In October, Plant Manager Barber' hired
Peter Joice, who had previously worked at the Standard
facility. Don Gritz, personnel industrial relations manag-
er for the Sierra Division of Louisiana Pacific, testified
that Barber alone made the decision to hire Joice, prior
to any correspondence or communication with Gritz.
There is no evidence that Barber was aware of Joice's
strike misconduct. Sometime thereafter, Gritz learned
that Joice had been hired at Keystone and advised that
an investigation should be made.
Joice was interviewed by Mel Barber and Emma
Lackey, personnel assistant , apparently on 13 October
1983. Lackey prepared a detailed typewritten summary
of the interview and submitted it to Gritz.
On 2 November 1983 Gritz directed the following
memo to various management representatives:
In order to assure that we implement a consistent
policy towards employees participating in acts of
misconduct, violation of court orders and other un-
acceptable actions since June 24, it is requested that
you compile and forward to my attention a list of
employees involved in misconduct, a brief summary
of their involvement, and if any court or legal
action has occurred or is scheduled relative to their
misconduct. Of course, add any comments you be-
lieve to be appropriate.
On 5 January 1984, on completing the investigation of
Joice, and after consultation with other corporate repre-
sentatives, Gritz issued the following report:
Disciplinary action-Peter B. Joice
Information:
On 08-08-83 Pete was on picket duty at the ply-
wood gate, Standard Plant. Mickey Metcalfe was
also there. Sheriffs verbal information and APS
written reports indicate Pete had been drinking. He
was arrested by the Tuolumne County Sheriff De-
partment for trespassing and verbally hassling law
enforcement personnel. Later after being released
from jail but during the same "picket shift" he was
arrested for throwing rocks at and hitting an APS2
guard. He was not immediately released this time.
While in jail he was charged with grand theft of a
portable radio. It was the property of APS and dis-
appeared during the time Pete was on picket duty.
Pete was later released from jail and after three
court appearances he entered a guilty plea to three
reduced charges. He was fined $1500 and served or
is serving 45 days on a work furlough program.
i Barber is on long-term disability retirement due to a heart condition,
and was represented to be unable to testify in this proceeding
2 American Protective Services, a private agency hired by Respondent
during the strike.
FIBREBOARD CORP. 1095
Comments:
Pete , by his own statements, APS reports and
sheriff comments was a voluntary participant in ac-
tivities considered misconduct while on picket duty.
Review of the events leading to the decision noted
below include a statement by Pete, APS incident re-
ports, discussion with representatives of the Tuo-
lumne County ' Sheriff's department , management
personnel of Louisiana-Pacific and news articles.
The acts of hostility and misconduct by Pete were
not directed against L-P employees, L-P rolling
stock, equipment or material being ' shipped or re-
ceived. His activities were not at the L-P plant
where he is presently working , However; his ac-
tions cannot be overlooked or condoned.
Decision:
After receiving input from numerous sources and
evaluating the impact and significance of all infor-
mation received, it is the opinion of L-P manage-
ment that Pete Joice ' has committed acts of miscon-
duct for which disciplinary action is appropriate.
Furthermore it is management 's opinion that his
acts were not gross misconduct for which termina-
tion would be the appropriate remedy. Mr. Joice
shall be suspended, without ,pay, for ten (10) work-
ing days. In addition Mr. Joice shall participate in a
meeting where management shall explain its posi-
tion and reasons for this disciplinary decision, the
alternatives which were considered , and our sincere
desire to make it clear that his actions were serious
and unacceptable. Mr. Joice shall be afforded an op-
portunity to offer any comments and statements he
wishes.
A copy of this report shall be placed in Mr.
Joice's personnel file.
On the same day, 5 January 1984, Joice was called
into the office and met with Barber, Lackey, and two ad-
ditional supervisors . He was handed a warning notice to
read and sign, and was advised of his 10-day suspension.
At this meeting Lackey told him that "The decision .. .
was a result of much discussion and his work record and
his desire to work played a big part in the decision
made."
At the hearing Gritz testified that there were several
reasons for suspending , rather than terminating Joice: He
had been very candid and forthright and did not deny
his involvement in the misconduct; there appeared to
have been some provocation by the guard;3 he had been
drinking and his actions did not appear "premeditated";
they were not taken against employees who were trying
to go to and from work nor was there. an attempt to
impede materials and supplies ; and, an important addi-
tional ' reason was to prevent a possible morale problem
with the plant manager who was "attempting to get an
operation going under very difficult circumstances. I was
S Lackey's aforementioned 13 October report of the interview with
Joice contains the following: "The second time he was arrested as a
result of `getting into if with a security guard. . Pete said the security
guard called his mother some bad names , i.e., `whore "'
very aware of the importance attached to support of the
managers that have to make decisions."
In early November 1983, during the strike, employee
James Houck approached Standard Plant Manager Cos-
tello and offered to return to work. Costello was aware
of Houck's^ alleged misconduct-striking and injuring a
security guard with a rock-and advised Houck that he
would have to evaluate the evidence regarding the
matter. Houck denied that he had thrown the rock.
On 14 July 1983, in the aforementioned contempt pro-
ceeding, Costello signed a declaration stating , inter alia,
as follows:
On July 8, 1983, at approximately 7:45 a.m., a
picket threw a rock which' hit Plaintiff's security
guard Jack Zickert on the head causing serious
injury. I did not personally witness this incident, but
I am informed and believe on that basis, that the
picket who threw the rock is James Houck. This
conduct, for which James Houck is personally re-
sponsible, violates paragraphs c and h of the tempo-
rary restraining order.
On July 8, 1983 , at approximately 8 :00 a.m., secu-
rity guard Ramirez was physically restrained by the
picket who threw the rock causing injury to securi-
ty agent Zickert. The picket threatened to take the
life of security guard Ramirez. Other pickets threat-
ened Ramirez ' life at that time as well. These ac-
tions violate paragraphs c, d and h of the temporary
restraining order.
Costello was present during the contempt hearing, on
12 August 1983, and heard Ramirez testify with respect
to the Houck incident.4 Zickert was not available for the
contempt hearing , and Ramirez testified, according to
Costello, that he had not personally witnessed the rock-
throwing incident by Houck. After Zickert was hit,
however, he called to Ramirez and pointed to Houck.
Ramirez, pursued and attempted to arrest Houck, and
said , "When are you going, buddy?" Houck replied, ac-
cording to Ramirez, "I'm going to kill you, mother-
fucker."5
On Houck's request to return'to work, Costello tele-
phoned the district attorney's office regarding the matter,
and visited the sheriffs office to discover any additional
information. Costello believed that he had no conclusive
evidence that Houck did throw the rock as Houck's guilt
had not been established in the court proceeding, and
testified that Houck 's apparent sincerity impressed him.
Houck was reinstated on 11 November 1983. Thereafter,
Loughran and, Gritz instructed Costello to conduct a
more thorough investigation . As a result, on 14 Novem-
ber 1983; Costello sent the following letter to Houck:
You were called back to work based upon your
signing of an "Unconditional Offer to Return to
4 The contempt proceeding did not result in a court resolution of con-
tested issues as the parties, prior to the completion of testimony, entered
into a consent contempt order.
s Costello testified that he did not recall Ramirez' testimony regarding
this threat.
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Work" and by virtue of the fact that you are the
senior qualified person for the work available.
I am obligated to inform you that a strike related
incident allegedly involving yourself is still under
investigation and that the outcome of that investiga-
tion may result in disciplinary action, from suspen-
sion to and including termination. You should,
therefore, consider yourself a probationary employ-
ee.
On 17 November 1983 Costello received calls from
two employees who had been near Houck, along with
six or seven other employees, during the rock-throwing
incident. They told him that they did not see Houck
throw a -rock. On 18 November, another employee
phoned Costello and advised him that he was also
present, and confirmed that Houck was leaving the area
to move his vehicle off the road pursuant to instructions
of sheriffs' deputies, rather than in an effort to escape
being, apprehended for throwing a rock.
Also on 17 November 1983, Costello, Gritz, and Walt
Hanson, Costello's superior, flew to San Jose, California,
in a company jet for the purpose of interviewing the two
guards, Zickert and Ramirez. The interview' lasted 2
hours, and Respondent's officials became convinced from
Zickert's inconsistent recollection that Zickert did not
observe who threw the rock at him.
Thereafter, on 22 November 1983, Costello wrote the
following memo:
The allegation is that Houck threw a rock at Se-
curity officer Zickert on July 8, 1983 at the L-P log
truck gate.
The only witness testifying that Houck threw the
rock is Zickert. His description of the incident is a
little inconsistent in that he says he was 'hit-then
turned and saw Houck. Later in his testimony he
says he saw Houck throw the rock and then at-
tempt to leave the scene. His testimony certainly in-
criminates Houck as one of 7 or, 8 people in the
area, but does not provide anything conclusive.
Furthermore, we had several difficulties with the
Royal Investigation Security employees during that
week-enough to cause some concern for the credi-
bility of their testimony.
I have received evidence from three witnesses;
Hank Hix, John Bettanini and Todd Cozort who
will testify that Houck did not throw the rock.
The, sheriff department filled out a report and
forwarded it to the D.A.'s office. The D.A.'s office
investigated the incident and found insufficient evi-
dence to pursue a charge against Houck.
When Houck was interviewed he flatly and con-
vincingly denied having thrown the rock. He did
admit being on the scene when it happened and did
go to his truck when asked by the sheriff's office to
do so. He, denied having left the scene to get away.
I interviewed two members of the sheriff office
present on that day. Neither witnessed the incident
but they did confirm that Houck was asked to move
his vehicle, thus explaining Houck's actions de-
scribed by Zickert as "attempting to leave the
scene."
Based on evidence and testimony, it is my recom-
mendation that no disciplinary action be taken
against Houck. Furthermore, it would be inconsist-
ent to continue to pursue the Houck incident in the
T.R.O. contempt hearings. It may even weaken the
rest of the case if we leave it in. Therefore, I also
recommend the allegations be dropped with respect
to Houck.6
The Respondent had collected and retained various
newspaper articles regarding the strike activity, and was
in possession of a newspaper article naming Mickey Met-
calfe as having been arrested for interfering with the
arrest of Peter Joice, supra, by challenging the arresting
officer to a fight. The criminal charges against Metcalfe
brought by a deputy sheriff were dismissed, and Re-
spondent had no independent evidence of 'Metcalfe's al-
leged misconduct. The decision to reinstate Metcalfe was
made by Lumber Superintendent Richard Davis rather
than by Plant Manager Costello, who was not at that
time involved in the hiring process as he had tendered
his resignation prior thereto. Davis testified that he re-
hired Metcalfe and several other employees at the same
time , about 12 December 1983, and was not aware that
Metcalfe had been arrested or accused of misconduct.
Costello, who had tendered his resignation to Respond-
ent on 29 November 1983, testified that he does not
recollect whether he had become aware of Metcalfe's re-
instatement prior to the time he actually left Respond-
ent's employ.
On 24 July 1984 a decertification petition was filed in
Case 32-RD-608 involving the' Standard collective-bar-
gaining unit . On 31 July 1984 the Union made an uncon-
ditional application for reinstatement on behalf of all the
striking employees. On 20 August 1984 a Stipulation for
Certification upon Consent Election was approved by
the Regional Director. Shortly thereafter, Charles
Loughran instructed then Standard Plant Manager Dave
Vculek to discharge former strikers regarding whom
there was adequate evidence of strike-related miscon-
duct. The'purpose of this instruction was to ensure that
the ballots of those employees could- be challenged
should they decide to'vote. See Connecticut Foundry Co.,
247 NLRB 1514 (1980); Servomation of Columbus, 219
NLRB 504 (1975). Vculek, who had no personal knowl-
edge of the employees or their involvement in strike mis-
conduct as he did not become plant manager until mid-
January 1984, made the decision to discharge the remain-
ing employees. He based his decision on documents that
had previously been compiled, including guards' incident
reports, employees' reports, newspaper articles, and con-
versations with staff. Thereafter he sent letters to each of
the employees, dated 16 August 1984, outlining the
reason for their respective terminations. Only one of
these employees, Floyd De Anda, responded- to Vculek's
letter. De Anda ' maintained that he was innocent of
6 There is no further evidence in the record regarding Houck's threat
to security officer Ramirez, on being arrested Presumably, as Respond-
ent's representative believed that Houck did not throw the rock, his
spontaneous outburst on being wrongly apprehended was deemed excusa-
ble
FIBREBOARD CORP.
throwing any rocks. Vculek did not contact any of the
employees whose names had been furnished by De Anda
as witnesses in support of his assertion that at the time in
question De Anda had not thrown any rocks. Rather,
Vculek elected not to believe De Anda's claim of inno-
cence and relied on the information available to him, in-
cluding the arresting officer's' report.
The letters of termination specify the following rea-
sons for termination:
Melvin J. Slate-terrorizing a salaried L-P em-
ployee and doing physical damage to his vehicle on
19 July 1983.
Jim Schawnego-being, accused by APS security
of throwing nails on the Keystone driveway during
the Keystone start-up of 26 September 1983.
]Robert J. Williams-being arrested by Tuolumne
County Sheriff deputies for violating a court order
and for throwing rocks at L-P employees as they
left the Keystone Mill on 26 September 1983.
Steve C. Serrano-being , arrested by,Tuolumne
-County Sheriff deputies on 'charges of violating a
court, order on 26 September 1983.
Galen A. Sawyers-being accused by APS secu-
rity of throwing nails on Keystone driveway during
the Keystone start-up on 26 September 1983.
Wyatt L. Park-violating, a, court order on 26
September 1983 and miscellaneous other incidents
of misconduct.
Nacho C. Padilla-being arrested by Tuolumne
County Sheriff deputies for violating a court order
and for throwing rocks at L-P employees as they
left the Keystone Mill _on 26 September 1983.
Thomas Norris-being accused by APS security
of throwing nails on Keystone driveway during the
start-up of 26 September 1983 and miscellaneous
other incidents of misconduct.
David L. Munson-harassment of an employee.
On 8 February 1984 as an employee was leaving the
Standard plant, you struck the employee's vehicle,
stepped in front of it and forced the employee to
stop; a fight ensued.
James L. Hackett-being arrested by the Tuo-
lumne County Sheriff deputies for hitting a peace
officer during the Keystone start-up on 26 Septem-
ber 1983.
Robert E. Hamilton-being accused by APS se-
curity of throwing nails on the Keystone driveway
during the Keystone start-up of 26 September 1983
and miscellaneous other incidents of misconduct.
Gerald R. Gutierrez-fighting with an, L-P em-
ployee as the employee was leaving the plant area
on 8 February 1984, and miscellaneous other inci-
dents of misconduct.
Richard E. Engle-being arrested by Tuolumne
County Sheriff deputies for violating a court order,
throwing rocks at returning workers during the
Keystone start-up, and for having thrown a bottle
at the car of an arriving L-P employee during the
Keystone start-up of 26 September 1983.
Harley E. Engle-being arrested by Tuolumne
County Sheriff deputies for throwing a rock at a
1097
train on Tuesday, 17 July 1983, and miscellaneous
other incidents.
Floyd De Anda-being arrested by Tuolumne
County Sheriff deputies for violating a court order
and for throwing rocks at L-P employees as they
left the Keystone Mill on 26 September 1983,
Ray E. Clayton-being arrested by Tuolumne
County Sheriff deputies on charges of violating a
court order on 26 September 1983.
Thomas Barajas, Jr.-being arrested for allegedly
hitting a-truck with your picket sign while it moved
through L-P gates on 19 July 1983.
C. Analysis and Conclusions
The General Counsel argues that the Respondent, by
its reinstatement of the aforementioned employees, Joice
Houck and Metcalfe, during the strike, condoned the
strike-related misconduct of any and all employees, and
that therefore Respondent's discharge of the employees
who may have engaged in similar misconduct, but who
continued to support the strike until it was ended by the
Union, is violative of Section 8(a)(1) and (3) of the Act.
Further, the General Counsel argues that by its afore-
mentioned disparate treatment of the employees, the Re-
spondent has evidenced an intent to discriminate against
those employees who did not elect to return to work
during the strike.
In support of her position the General Counsel cites as
the "controlling decision" Community Motor Bus Co.,
180 NLRB 677 (1970), enf. denied 439 F.2d 965 (4th Cir.
1971). In that case some 18 employees engaged in alleged
strike-related' misconduct consisting of mass picketing
and blocking the use of the employer's entrance and exits
at the outset of the strike. Thereafter, one of the employ-
er's officials specifically advised the union that the men
were not being fired for such misconduct, but rather
were needed and that the employer wanted them back.
Later, on the termination of the strike, the employer re-
instated 6 of the 18 employees,' but refused to reinstate
the remaining 12 because of the aforementioned miscon-
duct. The' Board found that under these circumstances
the employer condoned any unprotected strike activity,
and violated the Act by refusing reinstatement to the re-
maining 12 employees. The Fourth Circuit, however,
specifically reversed this decision, finding that the reas-
surances made bythe employer were made primarily to
keep the peace during a time when emotions were dan-
gerously high, and fell short of condonation as they did
not constitute a clear willingness to "wipe the slate
clean.",The court then stated at 439 F.2d at 968, regard-
ing the employer's failure to'treat all the strikers equally:
Although we accept -as supported by substantial
evidence the Board's findings concerning the con-
duct of the 18 employees, we believe its conclusion
overlooks the distinction drawn by 1VLRB- v. Fan-
steel Metallurgical Corp.; 306 U.S. 240, 259, 59 S.Ct.
,490, 83 L.Ed. 627 (1939), between what an employ-
er may do and what it must do. In Fansteel, the
Court held illegal strike activity absolved the em-
ployer of any duty to reemploy, but the company
"was nevertheless free to consider the exigencies of
1098 DECISIONS OF THE NATIONAL LABORS RELATIONS BOARD
its business and to offer reemployment if it chose. In
so doing it was simply exercising ,its normal-.right to
select its employees." 306 U.S. at 259, 59 S.Ct. at
498.'
The same is true here. The company was free to
discharge or rehire- any or all of the strikers whose
misconduct forfeited reinstatement - rights. Any
other rule, -especially in the..absence of anti-union
animus, would "confront the employer with an all-
or-none rehiring choice, -which is not required by
,the Act or by the doctrine of condonation. Kohler
Co., 128 NLRB 1062, 1105 (1960), enf'd in part and
remanded sub nom. Local 833, UAW-AFL-CIO,
International, Union, United Automobile, Aircraft and
Agricultural Implement Workers of America v.
NLRB, 112 U.S. App. D.C. 1Q7, 300 F.2d 699, cert.
denied, 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405
(1962). - - -
Iii'Longview Furniture 'Co., 100 NLRB 301, 306 (1952),
the Board, citing Fansteel, supra, stated as follows:"
In our opinion the reinstatement of Harold Clam-
pitt by the Respondent does not- indicate condona-
tion, as suggested by the Trial Examiner. - For, as-
suming that the Respondent may have believed that
Clampitt had engaged- in conduct like that attrib-
uted to the 13 here involved, it is settled that -where
serious acts of misconduct are involved, an employ-
er does not waive,or condone the misconduct-of all
participants when - it rehires some of them.13 For
the same reason no inference of condonation may
be drawn from the fact that the Respondent re-
tained in its employ certain nonstrikers who may
have been guilty of serious misconduct during the
strike., - -
1s See, for example, NLRB v. Fansteel Metallurgical Corp., 306
U S 240,' Precision Castings Company, Inc., 48 NLRB 870
The law is clear that condonation of unprotected ac-
tivity is not to be readily inferred; but rather must be
based on 'clear, convincing,, and positive evidence that
the employer, has agreed to forgive such misconduct and
desires to continue the employer-employee relationship
as though , no misconduct _ had occurred. Marquette
Cement Mfg. Co,, 219 NLRB 549,'551 (1975); NLRB v.
Marshall Car Wheel Co., 218 F.2d 409, 414 (5th Cir.
1955).
The General Counsel asserts that Respondent's rehir-
ing of the z three aforementioned employees constitutes
condonation of the other employees' misconduct. I'con-
clude that this contention is without merit. The employ-
ees who were rehired were never told that whatever
misconduct in which they may have engaged had been
forgiven.- In fact the Respondent's probation of Houck
while the investigation -of his alleged misconduct was
being undertaken, and the disciplinary, suspension of
Joice, together with the warning letter- advising that
Houck's' misconduct was deemed serious and unaccept-
able, conclusively demonstrates, hr my opinion, that Re-
spondent was not willing to extend carte blanche for-
giveness to the remaining employees, an indispensable
element in any, theory of condonation: Rather, Respond-
ent's approach- to the reinstatement of those employees,
in conducting an investigation into their alleged; wrong-
doing-even after they had commenced working, demon-
strates that it was not willing to "wipe the slate clean"
with regard to the 'misconduct of any employees.- There-
fore, I find that the record does not contain the neces-
sary clear and convincing evidence to support the Gen-
eral Counsel's condonation theory.
The General Counsel asserts, and the complaint al-
leges, that the Respondent engaged in disparate treat-
ment of the-employees for discriminatory reasons. Thus,
according to the General Counsel, the Respondent, on
rehiring Joice and Houck during the strike, took exten-
sive measures 'to investigate their alleged wrongdoing in
order to discover or contrive reasons for exculpating or
forgiving such, misconduct;' in contrast, it discharged in a
perfunctory manner those employees who elected to
continue exercising their protected right to strike.
I credit the testimony of Respondent's witnesses and
fmd that' Houck was reinstated by Standard Plant Man-
ager Costello, And' Joice was hired by Keystone Plant
Manager Barber without the knowledge of higher man-
agement officials. Indeed; the fact that the officials, on
learning of the reemployment of these individuals, re-
quired the respective plant -managers to conduct an ex-
tensive investigation -into the employees' alleged- miscon-
duct, provides convincing evidence of this. Further, such
a sequence of events, I find, clearly shows that the plant
managers possessed' and exercised a substantial degree of
authority and autonomy,,- as Respondent maintains. It
seems ' clear that the ensuing investigations, mandated by
Respondent's officials, were undertaken to determine
Whether these individuals, -once rehired, should be re-
tained. Thereafter, personal interviews `with these indi-
viduals and, in the case of Houck, his accusers, resulted
in their continued employment, for the various reasons
set forth above, 'I credit Don Gritz, Sierra Division
personnel/industrial relations manager , who appeared to
be a very forthright individual and find that Respond-
ent' various reasons •for suspending 'rather than discharg-
ing Joice were based on an honest evaluation of the cir-
cumstances rather than, as the General Counsel suggests,
a contrived effort to reward an employee for abandoning
the Union. Further, I credit Plant-Manager Costello and
Gritz, and fmd that after a laborious investigation 'of the
matter, Respondent simply believed that Houck was in-
nocent of any wrongdoing.'' ' ' ,
The discharge of the remaining employees in August
1984, some 8 to 10 months following' the-reinstatement of
Joice, Houck, and Metcalfe,' was undertaken by a new
plant manager, Vculek, who had played no -part in the
,reinstatement of the aforementioned employees. The
record clearly shows that Vculek,, pursuant to instruc-
tions and in a routine and fairly mechanical manner, dis-
charged the employees in question, basing -his determina-
tion Only on various documents that had been compiled.
Thereafter, only 'one of these employees, De Anda, pro-
7 It appears that Metcalfe's reinstatement simply did not come to the
attention of higher management representatives, and therefore no investi-
gation of his alleged misconduct was initiated
FIBREBOARD CORP.
tested his discharge. Vculek perfunctorily chose to disbe-
lieve his claim of innocence, and did not pursue any in-
vestigation of the matter.
The record evidence establishes that the Respondent,
from the outset, regarded any type of strike misconduct
as impermissible and engaged in significant efforts to
identify the wrongdoers. Further, in this endeavor, it
compiled and maintained whatever material existed to
document and support its belief that certain employees
were culpable, obviously for the purpose of -supporting
whatever disciplinary measures it should later decide to
invoke. On the rehire of Joice, and later of Houck, it un-
dertook an extensive investigation into their alleged mis-
conduct. As a result, it exonerated Houck and found
mitigating circumstances that warranted only a suspen-
sion of Joice.
It seems apparent that had Joice and Houck not been
rehired during the strike, they would have been among
those later discharged . However , the evidence, in my
opinion, does not support the General Counsel 's conten-
tion that they were reinstated as a result of a conscious
effort on the part of Respondent to forgive employees
who abandoned the strike. Rather, it appears that their
reinstatement was the direct result of a series of fortui-
tous circumstances, particularly Respondent's thorough
investigation of their alleged misconduct . Moreover,
Joice's situation was unique for the various, reasons that
the Respondent in good faith deemed to be mitigating
circumstances, including Joice's sincerity and his confes-
sion of guilt, the fact that he was provoked by the secu-
rity guard, and the difficult situation that Respondent
was then experiencing in starting up its Keystone oper-
ations.
On the termination of the strike and the filing of the
decertification petition, the Respondent decided to rely
on the information then available to it and summarily
discharged the remaining employees . In this determina-
tion the-Respondent elected to take the position that if in
fact its information was incorrect, and any particular em-
ployee was not guilty of misconduct, for whatever
reason, subsequent Board proceedings which the Union
or the employees would undoubtedly attempt to institute
could resolve the matter. Rubin Bros. Footwear, 99
NLRB 610 (1952); Crown Zellerbach Corp., 266 NLRB
1231, 1237 (1983). The fact that the Respondent under-
took an investigation of Joice and Houck on their being
rehired does not, in my opinion, mandate that the Re-
spondent has thereby committed itself to embark on an
extensive ' investigation into the circumstances surround-
ing the misconduct of each accused employee in an
effort to discover possible mitigating circumstances. The
General Counsel has cited no cases warranting such a
rule, and it appears that to require an employer to adhere
to such a requirement would have an inhibiting effect on
an employer's decision to reinstate employees who had
been accused of misconduct during a strike. Moreover,
anything other than a most cursory investigation could
not have been accomplished within the short time be-
tween the Union's request for reinstatement and the date
of the election; and Board law would have precluded
Respondent from challenging the ballot of any employee
who had not been discharged prior to the election date.
1099
Connecticut Foundry Co., supra at 1520, and cases cited
therein.
The record includes extensive evidence regarding the
culpability of each of the terminated employees involved
in this proceeding. The General Counsel has not main-
tained , with the exception of employee De Anda, that in
fact any particular employee did not engage in the mis-
conduct attributed to him, nor does she maintain that
such misconduct was not sufficiently egregious, under
applicable Board precedent, to warrant termination.
Therefore it appears unnecessary to recount the record
evidence regarding the misconduct of the discharged em-
ployees.
Regarding the case of De Anda, the only employee
who has disputed any involvement in wrongdoing, I
credit the testimony of Thomas Lee Kaufman, an investi-
gator with the Tuolumne County sheriffs department,
who appeared to have an accurate recollection of the
events in question. Kaufman convincingly testified that
on 26 September 1983, during strike activity, he ob-
served an individual throw a rock approximately 2
inches in diameter, large enough to shatter a windshield
or cause damage to vehicles that were exiting the plant.
He at all times thereafter kept his attention directed on
the individual, who was a large man, distinctively
dressed with rainbow-colored suspenders over a white
T-shirt. He then arrested the individual, De Anda. I do
not credit the testimony of any witnesses to the extent
that such testimony may differ with that of Kaufman. I
fmd that De Anda did in fact engage in unprotected con-
duct and that he was therefore lawfully discharged.
On the basis of the foregoing, I find that the evidence
is insufficient to show that the discharge of the strikers
who did, in fact, engage in misconduct warranting termi-
nation was motivated by unlawful considerations. I shall
therefore dismiss the complaint.
IV. THE REPRESENTATION CASE
A. Underlying Issues
The Union's primary argument regarding the great
majority of ballots that were challenged by the Respond-
ent on the basis that the employees had been permanent-
ly replaced or that their jobs had been eliminated,` in-
volves the status of the sawmill on the date of the elec-
tion, 14 September 1984. Prior to the strike the sawmill
operated with 48 employees. The sawmill has not operat-
ed since the strike and at the time of the hearing was un-
dergoing extensive modification.
Shortly prior to the election the Respondent prepared
manning tables for each job classification that would
exist in the new sawmill. The projection indicated that
the new sawmill would operate with a total of 27 em-
ployees, and would produce approximately the same
daily number of board feet as the former sawmill.
The Union takes the position that as of the date of the
election the plans for the new sawmill had not been fi-
nalized nor had construction begun. Therefore, accord-
ing to the Union, at the time ' of the election the Re-
spondent could have decided to reopen its existing plant
that had formerly operated with a complement of 48 em-
1100 DECISIONS OF THE NATIONAL-LABOR RELATIONS BOARD
ployees. From this premise the Union argues that at the
time of the election there would have been no way of
determining whether any particular employee, in any de-
partment, had actually been permanently replaced-during
the strike because, under the Respondent's seniority
system, the 48 sawmill positions could have been filled
by any striker regardless of whether he or she had for-
merly worked in the sawmill. Stated another way, the
Union maintains that although there were some 125 strik-
ers who wanted to return to work at the end of the
strike and only a limited number of available positions, it
would be impossible to determine which specific strikers
had been permanently replaced, in any department, until
Respondent had either hired or commenced operating
with a complete complement of employees in all depart-
ments, including the sawmill. Therefore, the Union ap-
parently contends each of Respondent's challenges must
be overruled on the basis that each challenged ballot was
cast by an employee who, potentially, could have occu-
pied a' position in the sawmill" until such time as the em-
ployee had been offered, and declined, such a position.
I find the Union's argument to be without merit. Volu-
minous testimonial and documentary evidence, which
need-,not be set forth herein, conclusively demonstrates
that the Respondent had engaged in exhaustive research,
both prior to and during the strike, in an effort to deter-
mine which type of sawmill would best suit Respond-
ent's changing business needs. At the time of the election
the proposal for the construction of the new sawmill had
been completed to the extent that Respondent's officials
were in a position to specify with certainty the number
of employees and job classifications needed to operate it.
Although, as the Union argues, the final proposal was
not officially adopted by the Respondent's board of di-
rectors until late October 1984, a month and a half after
the election, nevertheless the record shows that on the
date of the election, 14 September 1984, the reopening of
the sawmill as it then existed was not under consider-
ation, and the plans for the new sawmill had been in es-
sentially final form since late July 1984. Moreover, at the
time of the hearing the construction of the new sawmill
was progressing as planned, and there have been no
modifications in ' its staffing requirements. Thus I con-
clude, and the record abundantly demonstrates, that the
Respondent's projections as of the date of the' election
conclusively establish that the new sawmill, when it be-
comes operative, will be staffed by only 27 'employees.
Moreover, the identity of each individual who would fill
one of the 27 sawmill positions was ascertainable as of
the election date, infra.
The Union also contends that certain employees who
worked at Respondent's Keystone plant but voted in the
Standard election were not eligible voters. The record
shows that certain Standard sawmill employees who re-
quested to return to work during the strike were given
various jobs at the Keystone plant pending the reopening
of the new Standard sawmill. Indeed, although these em-
ployees were placed on the eligibility list for the Key-
8 It appears that positions in all departments other than the sawmill
had been filled, many with permanent replacements, at the time of the
election
stone election on the basis that they had an interest in
the outcome of the- election, the Union challenged their
ballots during the Keystone election on the basis that
they were Standard, not Keystone, employees. I do not
credit the testimony of various witnesses for the Union
who stated or implied that at, the Keystone preelection
conference the Respondent represented that these par-
ticular employees were permanent Keystone employees
and had forfeited their seniority at Standard. Rather, I
credit Respondent's witnesses who testified that these
employees -specifically opted to work at Keystone pend-
ing the completion of , the new Standard sawmill, and
that they were assured, of positions and the. retaining of
their seniority at the Standard sawmill when it reopened.
I further find that the Respondent's representative t said
nothing to the contrary at the Keystone preelection con-
ference.
During the strike the Respondent eliminated certain
positions or classifications in various departments with-
out prior notification to the Union; The Union maintains
that such unilateral elimination of unit positions constitut-
ed, in effect, unlawful conduct violative of Section
8(a)(5) of the Act, precluding the Respondent's` challenge
to the ballots of various employees on the basis of job
elimination. Respondent presented evidence that it had
historically taken the position that it'was not required to
bargain about 'such matters, and that its position in this
regard had been, in effect, sustained in various arbitration
determinations between the parties.
The record herein shows that the elimination of jobs
or job classifications prior to and during the strike was,
in all instances, economically motivated. Most important-
ly, there is no complaint allegation that such job elimina-
tions are unlawful. -Absent any contention in the unfair
labor practice proceeding that Respondent's elimination
of various jobs was violative of the Act, such job elimi-
nation must be presumed, to be lawful. Accordingly, I
find the Union's argument to be without merit. See Spray
Sales & Sierra Rollers, 225 NLRB 1089 (1976); Texas
Meat Packers, 130 NLRB 279 (1961).
B. The Challenged Ballots
1. Department 1 (sawmill)
The sawmill did not operate during the strike. Rather,
the Respondent discontinued its sawmill operations, and
engaged in extensive plans to build a new sawmill that
would incorporate recent technology. At the time of the
election the plans for the redesigned sawmill were suffi-
ciently finalized to the extent that the number of employ-
ees needed to staff its- operations had been accurately de-
termined. The old sawmill had operated with a total of
48 employees. As noted above, extensive and convincing
record evidence clearly, demonstrates that the new saw-
mill will operate with a total of 27 employees.
The following 1I employees offered to return to work
at the sawmill prior to the Union's general unconditional
offer. Because the sawmill had not reopened, these indi-
viduals were put to work either in other departments at
Standard, or at the Keystone sawmill, pending reopening
of the Standard sawmill:
FIBREBOARD CORP.
Salvador Gamez Tim Alvarez
James Marr James Lane
Bill Adcock Roger Edwards
Lucio De La Torre Bob Kiar
Genera Martinez Miguel Cisneros
Carl Hix
The remaining 16 employees whom I find would have
occupied positions in the sawmill, at the time of the elec-
tion, were:
Tom Riuz
Robert Icenogle
Donald Higuera9
James Campbell
John Bettanini
Michael Emerald 10
Jesus Ramirez
Gary Hodges
Roy Higgins
George Spraggins
Benny'Tarango
Ronald Barton
Daniel Espinosa
Stephen Norris 11
James Fernandez
Mark Mutzner 12
I sustain the challenge to the ballots of the following
former sawmill employees on the basis that their jobs
have been eliminated and they had no reasonable expec-
tation-of future employment:
John Morris James E, Lane Jr.
Tony Treto Ronald Neri
Charles Belemecich Riley Hamilton
The following former sawmill employees were lawful-
ly discharged due to strike-related misconduct, as deter-
mined in the unfair labor practice proceeding. The chal-
lenges to their ballots are sustained:
Nacho C. Padilla Robert E. Hamilton
Galen A. Sawyers Robert J. Williams
The challenge to the ballot of Robert A. Williams is
sustained by agreement of the parties.
2. Department 2 (lumber, department)
The lumber department will operate with a total of ap-
proximately 22 employees. At the time of the election
this' department was fully staffed with 24 individuals.
The challenges to the ballots' of the following individ-
uals are sustained as the record shows that their jobs had
been eliminated or they were permanently replaced and
had no reasonable expectation of future employment at
the time of the election:
Clifford Dunbar Cristobal F. Robles
9 Respondent's challenge to Higuera's ballot is overruled, as the record
shows that his interim employment at lower wage and with lesser benefit
at Hateler Enterprise was not substantially equivalent to his intention to
abandon his position with the Respondent
1° Respondent"s challenge to the ballot of Emerald, who had interim
employment with Snider Lumber Company, but at lower wages and with
fewer fringe benefits, is overruled.
11 I credit Norris' testimony that he would have returned to Respond-
ent's employ at the time of the election, particularly due to his seniority
with Respondent's despite contrary statements he made to the plant man-
ager of Snider Lumber Company, his interim employer. The Respond-
ent's challenge to his ballot is overruled.
12 1 credit Mutzner's testimony that he would have returned to work
for Respondent at the time of the election His wages and fringe benefits
were inferior to those of the Respondent. The challenge to his ballot is
overruled.
Vernon Shaw
Leon S. Casas
Joe Petro
Antonio Bettanini
Andrew S. Artzer
Louis W. Capuccini
William Camire
Clyde V. Foote
Clifford R, Knowles
Jesus T. Garcia,
Guido L. Guissi
Anthony Da Gama
Norean L. Martin
James R. Morris
John J. Holderman
1101
The challenges to the ballots of the following employ-
ees are sustained as the employees were lawfully dis-
charged due to strike-related misconduct:
Steve Serrano Claudia Grimes
Floyd De Anda David L. Munson
Dennis H. Ponder Thomas Norris
Gerald Gutierrez
The challenge to the ballot of John D. Gonzales is sus-
tained as he advised Respondent of his retirement prior
to the election, and it is clear that he had no intention of
returning to work.
2. Department 3 (transportation)
All jobs in this department were eliminated prior to
the election. Therefore, the challenge to the ballots of
the following employees who were formerly employed
in the transportation department, are sustained: Stanley
R. York and Donald York
4. Department 5 (machine shop)13
The decision to eliminate the machine shop was made
prior to the election. Accordingly, the challenge to the
ballot of Vernon C. Wyllie, former machine shop em-
ployee, is sustained.
5. Department 6 (powerhouse)
The powerhouse will apparently operate with a total
of nine employees. At the time of the election the pow-
erhouse was operating with a full complement of em-
ployees, including permanent replacements.
The Respondent's, challenge to the ballots of the fol-
lowing employees, who were permanently replaced
during the strike and had no reasonable expectation of
employment at the time of the election, are therefore sus-
tained:
James R. Hembree John Kinest
William E. Tolar Norman F. Pangracs
William B. Stevens James L. Pierce
6. Department 7 (electrical department)
The record establishes that three sawmill electricians
will sufficiently staff this department. '
The Respondent's challenge to the ballot of Jewell
Kelley is sustained, as his job has been eliminated. The
Respondent's challenge to the ballot of Jim Hockett is
sustained, as he was lawfully discharged due to strike-re-
lated misconduct.
11 Department 4 does not exist.
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7. Department 8 (yard shops)
The record shows that former yard shop employees,
Raymond Antonini and Gregory Long, were permanent-
ly replaced during the strike. The Respondent's chal-
lenges to their ballots are sustained.
8. Department 9 (plywood department)
The record establishes that the plywood department
has operated with 68 employees during the strike and
that as of the date of the election there was no reasona-
ble expectation of future employment for the former ply-
wood department employees who had been permanently
replaced. Therefore, the Respondent's challenges to the
ballots of the following former employees are sustained:
Ray Esparza
Walter Strong, Jr.
William McPherson
Duane Montgomery
Stanley Painter
Wayne Ratliff
Lloyd Beaty; Jr.
Robert Tarango
Juan Ramirez
Dennis White
Charles L. Belemecich
Valdemar Vega
Edward Neri
Efren Meza
Gary Grazioli
Marvin Icenogle
Donna Johnson
Jeri Wagner
Robert Griffiths
Daniel Babbit
The challenges to the ballots of the following employ-
ees, who were lawfully discharged due to strike-related
misconduct, are sustained:
Jimmie E. Shawnego Roy E. Clayton
Harley E. Engle Melvin J. Slate
Richard E. Engle Thomas A. Barajas, Jr.
Wyatt L. Parke
The Respondent's challenges to the following ballots
are sustained for the reasons indicated: Thomas H.
Cooper-Agreement of the parties.
Ben Flores-The record shows that Flores' disability
precluded his reemployment.
Brandon Babbitt-The record shows that Babbitt sub-
mitted an application for early retirement prior to the
election, and that there was no reasonable basis for be-
lieving that he would return to work.
9. Department 10 (log deck)
The Respondent's challenges to the ballots of the fol-
lowing employees are sustained for the reasons indicated:
Clarence C. Ladley-Job eliminated; and Ralph A. Ap-
plequist-Permanently replaced
The Union's challenge to the ballot of Robert P. Zion
is sustainedby agreement of the parties.
10. Department 11 (road construction crew)
The road construction crew was eliminated during the
strike. The Respondent's challenges to the ballots of the
following employees are sustained, as their jobs have
been eliminated:
James E. Martinelli Brady Brown
Richard P. Gladysz Gerald J. Longeway
William A. Tirey
C. Summary
The tally of ballots served on the parties at the conclu-
sion of the election shows that 18 ballots were cast for
and 95 ballots were cast against the Union. A total of
149 ballots were challenged. As noted above, I have sus-
tained, for the reasons indicated, various challenges as
follows:
Sawmill
Lumber
Transportation
Machine Shop
Powerhouse
Electrical
Yard Shops
Plywood
Log Deck
Road Construction Crew
Total
As 87 challenges have been sustained, the remaining 62
challenges are insufficient in number to affect the results
of the election. Therefore, it is recommended that the
Board certify the results of the election.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 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. The Respondent has not violated the Act as alleged.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed14
ORDER
The complaint is dismissed in its entirety.
IT IS FURTHER RECOMMENDED that the Board remand
the representation proceeding to the Regional Director
for Region 32 for the purpose of certifying the results of
the election.
14 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