Jersey Distributors

392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlantic Coast News Company and Arthur MacDowell, d/b/a Jersey Distributors and William T. Bixenman. Case 4-CA-5439 June 9, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 5, 1972, Trial Examiner Melvin J. Welles issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent Atlantic filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Trial Examiner: This case was heard at Toms River, New Jersey, on June 7, 8, and 9, and July 8, 9, 20, and 21, 1971, based on charges filed December 9, 1970, and amended March 11, 1971, and a complaint issued March 19, 1971, and amended April 19, 1971. The complaint, as amended, alleges that Respondent Atlantic Coast and Respondent Jersey Distributors violated Section 8(a)(1) and (3) of the Act. Each Respondent filed an I MacDowell purchased the afternoon distribution portion of Atlantic's business at that time At issue in this case, and decided below, is whether the transaction was a "sham ," or motivated by discriminatory considerations. Also at issue is whether Atlantic and Jersey Distributors are joint employers, as the General Counsel alleges in the amended complaint The jurisdictional findings made herein are not to be taken as resolving the issues thus described , which I discuss below answer denying that it violated the Act. Counsel for the General Counsel and for Respondent Atlantic filed briefs. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Atlantic Coast News Company, herein called Atlantic, is a New Jersey corporation engaged in the wholesale distribution of newspapers and magazines, with its pnnci- pal office and place of business in Lakewood, New Jersey. In the year preceding the hearing, Atlantic purchased goods valued in excess of $50,000 from suppliers located outside the State of New Jersey and did a gross volume of business in excess of $300,000. MacDowell d/b/a Jersey Distributors, herein called Jersey or MacDowell, has been, since about November 23, 1970, an independent proprie- tor 1 engaged in distribution of newspapers and magazines, with his principal office and place of business at Toms River, New Jersey. Jersey Distributors estimated that its annual gross volume of business would be in excess of $200,000 and that its purchases from outside the State of New Jersey could be in excess of $50,000. I find on these, facts that Atlantic and Jersey Distributors are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local Union No. 469, an affiliate of international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Teamsters, and Newspaper and Mail Deliverers Union of New York and Vicinity, herein called the Mailers, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The critical question in this case concerns the sale by Atlantic of a portion of its business to Artie MacDowell, plant manager of Atlantic until the sale, and the loss of jobs by nine employees of Atlantic. The General Counsel alleges that the sale was motivated by a combination of the employees' rejection of the Teamsters in a decertification election and their interest in the Mailers Union. The General Counsel also contends that the sale itself was a sham, that MacDowell never became a bona fide separate employer, and, alternatively, that MacDowell is a succes- sor to Atlantic and thereby responsible for remedying any unfair labor practices committed by Atlantic.2 As a consequence of the sale, Atlantic discharged a number of employees, the General Counsel contending that these employees were unlawfully discharged both because the 2 If the reason for Atlantic's sale was discriminatory, it would make no difference whether the sale was "real," or "sham," for the sale and the consequences of it would be violative of the Act. Essentially, the General Counsel's contention that the sale was "sham" is, as I view it, that the evidence he asserts as showing the sale was never a bona fide one itself tends to support his view that the motive was discriminatory 197 NLRB No. 73 ATLANTIC COAST NEWS COMPANY sale itself was discnminatonly motivated and because the selection of those to be retained and, of course , those to be let go was made on the basis of the individual's support of the Teamsters or Mailers, respectively. Although there is no separate contention in the com- plaint, and the General Counsel does not assert in its brief, that Jersey Distributors violated the Act by not employing those persons laid off by Atlantic following the sale, the General Counsel does argue that the failure of Jersey to hire these individuals was part and parcel of the illegal scheme, motivated by a desire to avoid bargaining with the Mailers and to retaliate against the employees whose vote resulted in decertifying the Teamsters. The General Counsel also contends that Respondents violated Section 8(a)(1) of the Act by interrogating several of its employees, by guaranteeing one employee continued employment if he voted for the Teamsters, and by threatening men with "trouble" if they voted out the Teamsters and selected the Mailers. This last allegation and one instance of interrogation were not actually contained in the complaint but were, claims the General Counsel, fully litigated at the hearing. B. The Facts Atlantic has been engaged for a number of years in the newspaper distribution business in an area near the New Jersey coast with a large summer resort population. Up to about November 20, 1970, Atlantic employed approxi- mately 12 full-time drivers and 6 part-time drivers. The full-time drivers have been represented for quite some time by the Teamsters. On July 23, 1970, employee Robert Juralewicz filed a decertification petition, and a consent agreement was signed providing that an election be conducted September 8. Subsequently, on September 4, Atlantic withdrew from the consent agreement. A new agreement was executed on October 22 and approved October 26, setting November 2 as the new election date. On September 3, 10 of the 12 full-time drivers (all except Shroeder and Bixenman) attended a meeting set up by the Mailers Union, at the Royal Manor Inn. Several Mailers representatives at this meeting spoke to the 10 drivers there and asked them to sign cards. At one point, employee VanDerhoef spoke against the Mailers. Subsequently, all of the men were asked to go into the backroom to discuss the matter without the Mailers agents being present. All 10 signed Mailers cards at that time. The first five to sign were Traylor, Anders, Ackerman, Stock, and Robert Juralewicz; the last five were Edward Juralewicz, Young, Williams, MacDonald, and VanDerhoef. There is no evidence in the record of any other activity on behalf of the Mailers during any times pertinent to this proceeding. No representative of the Mailers ever came to the Company to demand recognition nor was there any overt activity on behalf of the Mailers by any representative thereof, or any company employee, during the period from July 23 to the sale (to be described below) on November 20. The decertification election agreed upon in August was held November 2. The vote therein was five employees for 393 the Teamsters and seven against ; the Teamsters was accordingly decertified. The credible testimony of Birnbaum and Arthur Mac- Dowell shows that about the middle of September. 1970, MacDowell was called in to a meeting Atlantic officials were having with a prospective buyer of the entire business.3 Birnbaum testified that MacDowell was called in because he was best qualified , as Atlantic's plant manager, to answer questions the prospect might have about the operational end of the business . At the end of the meeting, which appeared to Birnbaum to be unproductive, MacDowell suggested, for the first time, that he would be interested in getting into the business , in taking over the afternoon distributorship, which was a "losing proposi- tion" because he felt that he could make a profit on it. Nothing more was done at that point, but toward the end of October a meeting and discussions were held between Birnbaum and MacDowell concerning price, downpay- ment, and other relevant matters. Subsequently, MacDowell, represented by an attorney, and Birnbaum and Stone, also represented by an attorney, met to discuss precise terms of an agreement . After a number of changes and modifications in the original proposal, a final agreement was drafted and executed, certificates of ownership in eight vehicles (seven of them trucks) were transferred to MacDowell , who was designat- ed in the agreement as a "sub-distnbutor" for afternoon publications, price schedules were established, MacDowell signed a promissory note to Atlantic, and he gave a $5,100 downpayment to Atlantic. The agreement and note were executed on November 20, 1970. On November 19, MacDowell had withdrawn his entire savings, amounting to $5,089.76, from the bank (as he testified and his passbook in evidence shows). He also obtained a bank loan himself and another sum of money from his mother, who had borrowed the money from a bank. MacDowell obtained a certificate from the State of New Jersey entitling him to use the name Jersey Distributors , and set up a place of business in Toms River, New Jersey (Atlantic was located in Lakewood, New Jersey). He began operations there on Monday, November 23, 1970. On the same day, November 23, the full-time drivers, except for MacDonald, who was away, were assembled by VanDerhoef, told that he, VanDerhoef, had replaced MacDowell as the plant manager, and that all full-time drivers were terminated. However, one full-time driver, Schroeder, was back on the job the next night, and another, MacDonald, who had been on vacation, returned to work when he returned from vacation on November 25. MacDowell, as noted, began operating at a new location on November 23 as Jersey Distributors. His business was essentially what had been the afternoon portion of Atlantic's business. At that time he hired a number of drivers who had been part-timers at Atlantic and two clerical employees who had worked for Atlantic. Several days later, he advertised for employees in a newspaper. The General Counsel contends that officials of Respon- dent Atlantic and MacDowell made various statements, some alleged as violative of Section 8(a)(I) of the Act, which help to demonstrate that the sale was a sham and 3 Attempts to find a buyer and sell the business had begun early in 1970 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was motivated by a desire to retaliate against those employees who had voted out the Teamsters Union and to punish those who were the foremost adherents of the Mailers. Virtually all of the statements, both those alleged as 8(a)(1) violations and those claimed as showing Atlantic's unlawful motivation, themselves are in sharp dispute, turning for the most part on which witness is to be credited. C. Discussion Before examining in detail the testimony concerning these statements and making the necessary credibility resolutions, I believe it would be helpful to look at the larger picture, at the facts as to which there is really no dispute and from which I am inclined to draw certain inferences which also are germane to the credibility resolutions themselves. For purposes of the ensuing discussion, I am assuming that Respondent Atlantic knew about the Mailers meeting at the Royal Manor Inn and also what occurred at that meeting; I am also assuming that Atlantic wished to keep the Teamsters in and keep the Mailers out. I do not, however, assume that the sale was a sham. Rather, I find to the contrary. The facts described above satisfy me that the sale was bona fide, that MacDowell really did purchase the afternoon portion of the business, whatever may have motivated Atlantic to sell. Thus, the uncontroverted testimony showing the prelimi- nary discussions between the MacDowell and Atlantic officials, Stone and Birnbaum, the subsequent negotiations and agreement, with each side represented by an attorney, the contract itself, the withdrawal by MacDowell of his entire savings account and his borrowing from the bank both personally and through his mother, and MacDowell's moving to a different location, while conceivably only window dressing for a temporary arrangement, do have all the earmarks of an arm's-length, completed transaction. The fact that there continued to be business dealings between MacDowell and Atlantic after November 23 is of course contemplated by the nature of the agreement itself and does not militate against its bona fide nature. Nor does the fact that MacDowell, on a number of occasions during the next 6 or 7 months, worked directly for Atlantic on Saturday nights, alter my conclusion, for it was only natural that Atlantic look to its former plant manager for assistance, for which he was paid, at times when help was needed. General Counsel also relies on the testimony of Barbara Williams, wife of alleged discriininatee Robert Williams, in two respects. She testified first that Myrtle Marchese, Atlantic's office manager, and Barbara Williams' supervi- sor, said to her on November 23 that they would all be back together within 6 months. Marchese denied making this remark, testifying that it was made by "several of the men." Even assuming she made the remark, it hardly 4 Williams also testified that Marchese told her to tell her husband he did not have to worry about his job because Marchese would make sure he went with MacDowell Accepting the statement as Williams testified at most indicates knowledge by Marchese, a few days before, of the impending split in Atlantic's business and a desire to help her niece's husband keep a job. The failure of Robert Williams to keep a job may suggest that Marchese's influence with Atlantic was minimal 5 The General Counsel regards as significant in this respect that reflects an admissioi by management, but at best a personal opinion of Marchese, without any connection to the ouster of the Teamsters or the advent (a stronger word than the facts warrant) of the Mailers.4 Williams also testified that she overheard a conversation between MacDowell and his mechanic, Edward Wishner, some time after the charge was filed, with Wishner saying he heard the NLRB was trying to put MacDowell out of business and MacDowell replying that he did not care what happened, that he would get back everything he loses. MacDowell recalled a conversation at that time with Wishner, but his testimony has Wishner saying to him that Mrs. Bixenman told Wishner the Board was putting MacDowell out of business, with MacDowell replying that "No son of a bitch is going to put me out of business." I credit MacDowell's version of this conversation, partly because it was not a conversation with Williams, but one she "overheard" from some distance away, and partly because I regard MacDowell as a credible witness. His stated reaction to Wishner's comment, in the face of charges having been filed, is not, in my opinion, any evidence that the sale was a sham. In short, I am convinced that MacDowell's purchase of the trucks and his assuming the afternoon newspaper distribution as a subcontractor was not a sham transaction. I find also that Atlantic and Jersey are not "joint employers." The fact that they continued to do business with one another was inescapable under the arrangement that had been made, but there is no evidence of any common employees, any common labor relations policy, or, indeed, any of the indicia of joint control as to create a joint employer relationship. I find it somewhat difficult to believe that Atlantic's officials, Birnbaum, Stone, and its general manager, MacDowell, would go to the extent they did, arranging at obvious expense such an elaborate scheme (if the General Counsel's contention has merit) to retaliate against its employees for having rejected the previous incumbent, the Teamsters, and to prevent their selection of the Mailers. As noted, the sole evidence of such "selection" of the Mailers was the one meeting of September 3 at the Royal Manor Inn, and between September 3 and the November 20 sale, close to 3 months had elapsed without any employee or any Mailer representative making any demands or requests of Atlantic or, indeed, without any employee or Mailer representative indicating any continuing interest by the employees in selecting the Mailers or the Mailers in representing the employees In short, granting that Atlantic was desirous of keeping the Teamsters in,5 and the Mailers out, and accepting arguendo the testimony proffered by the General Counsel to show that Respondent violated Section 8(a)(1) in three or four respects, the evidence would not show a level of hostility toward the Mailers of the sort that Birnbaum suggested a new contract with the Teamsters early in 1970, stating that the "suggestion was premature since the incumbent 's contract had ten more months to run ..." As the Mailers was not even on the scene until some 10 months later, and as there is nothing unlawful in suggesting, or even executing, a new contract during the term of an old one (prematurity is of significance only with respect to contract-bar principles), I do not regard this fact as probative of anything ATLANTIC COAST NEWS COMPANY 395 would engender such an elaborate and devious scheme to keep them out. The General Counsel's case is also deficient in another important respect. Thus, the complaint alleges that Respondent discriminatorily discharged nine employees, Ackerman, Young, Bixenman, Stock, Anders, Robert Juralewicz, Edward Juralewicz, Traylor, and Williams. One of these nine employees, Bixenman, never attended the Royal Manor meeting, nor is there evidence of any pro- Mailers sentiment or pro-Mailers activity on his part at any other time .6 As noted above, all employees who attended the meeting did in fact sign Mailers cards. The General Counsel claims that those who signed toward the end of the meeting, who had to be "persuaded" to sign, ended up as the favored group, thus evidencing that Atlantic was discriminating against Mailers supporters. But Young and Edward Juralewicz were not kept, although they were among the last to sign-the group that had to be persuaded.? Furthermore, the unlikelihood of such an elaborate scheme being devised to keep out a union that had not even claimed to represent the employees is heightened by the unlikelihood of such a scheme being devised to sort out the more ardent from the less ardent Mailers supporters. After all, the last group to sign were, even viewing the evidence in the most favorable posture for the General Counsel, persuaded to sign Mailers cards, not coerced to sign them. It is difficult to believe that Atlantic's thinking was so refined and sophisticated as to reason that it could insure keeping the Mailers out by differentiating among the employees based on the order of their signing union cards at the single Mailers meeting held some 2 1/2 months earlier. Although the General Counsel makes much of VanDerhoef's retention and his selection to be plant manager for Atlantic after the sale as supporting a discriminatory motivation, because VanDerhoef was the last to sign a Mailers card and had earlier at the Royal Manor Inn meeting spoken against the Mailers, since VanDerhoef had had been the assistant to MacDowell, and therefore the logical person to take over MacDowell's position with the latter no longer there, I cannot regard this as significant. In the light of the considerations above, it seems more likely to me that the sale to MacDowell was brought about essentially for the reasons asserted by Birnbaum, his health and the economic problems attending the afternoon newspaper deliveries. The General Counsel relies heavily on a number of statements made, or allegedly made, by Atlantic official Birnbaum; Atlantic's former general manager, MacDow- ell, and the office manager of Atlantic, Marchese, to demonstrate that the sale was discnminatonly motivated. As to all but one, there is sharp conflict. As to that one, Anders testified that Birnbaum came over to him sometime 6 Edward Juralewicz testified that he told MacDowell who he thought voted for and who against the Teamsters in the November 2 election. Accepting this testimony still would not show that Bixenman was pro- Mailer; it could only show that he presumably voted to decertify the Teamsters. I do not, however, credit Juralewicz's testimony in this respect, but credit MacDowell's denial of any such conversation Juralewtcz placed the conversation as the day after the election on direct examination, then changed to the following week on cross-examination More importantly, in December, after the sale took place and Anders was no longer working but had returned to the plant to cash some toll tickets, and said "Well, Herb, you are looking for work." When Anders replied that he had to because he had no job, Birnbaum said "Well, instead of getting the Mailers in, the only thing you succeeded in doing is setting Art up in business." According to Birnbaum, he said "You fellows helped Artie get started, because he is in business with himself now." In an affidavit given to a Board agent, Birnbaum gave "You fellows did one guy a good turn, you put Art MacDowell in business," as what he said to Anders. Myrtle Marchese, who was present at this conversation, testified that Birnbaum said to Anders "Well, I have got one thing to thank you boys for, you put Artie MacDowell in business for himself." There is no substantial difference between the version Birnbaum testified to on the stand, that contained in his affidavit, and that testified to by Marchese. The slight differences among these three versions can readily be attributed to the passage of more than 6 months since the statement was made to the time of the testimony, and to the fact that precise recollection of exact words is hardly to be expected. I suspect that Anders' own version reflects what he read into the remark rather than its precise wording, and credit Birnbaum's and Marchese's testimony in this respect. Had Birnbaum said in so many words that the sale took place because of the advent of the Mailers, that would be an admission, and the end of the matter, despite the contrary indications discussed above, and a clear violation would exist. Did Birnbaum's statement amount to just that in this case? I think not. In the first place, there is no real hostility to the Mailers shown on this record. The conversation between Birnbaum and Anders took place in December. Yet, the only evidence of any activity at all with respect to the Mailers consisted of the September 3 meeting at the Royal Manor Inn. Nothing occurred before, nothing after, there was no demand for recognition made, nor any overt activity of any sort. It does not seem likely that the Mailers would be in the forefront of Birnbaum's mind 3 months after any activity by that Union. In the second place, if the General Counsel were correct that the sale to MacDowell was a clever scheme, a coverup for ridding Atlantic of anti- Teamsters and pro-Mailers employees, it is hard to believe that its architect would casually reveal the scheme to a man who had just been victimized by it. Therefore, I do not consider the remark as being what in other circumstances it might appear to be, a flat admission of an illegal motive. True, Birnbaum's explanation of the remark, that he was joking,8 falls short of explaining just what the remark, even as a joke, actually meant. The full circumstances, however, make "joking" a more acceptable explanation to me than that Birnbaum was admitting an otherwise carefully although Atlantic and Jersey both allegedly favored the Teamsters supporters and disfavored the Mailers, the supposed informant was himself not kept by Atlantic or hired by Jersey 7 The fact that these two employees were recalled at the time of the hearing before me, 9 months after the sale, hardly supports the General Counsel's theory of favoring the anti-Mailers employees. a Respondent also adduced other evidence tending to show that Birnbaum had what might be characterized as a wry sense of humor 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concealed and elaborate stratagem. Perhaps, and I perforce must speculate, the situation that had developed for economic and health reasons, and had been in contem- plation for a long time prior to the September 3 Mailers meeting, had the fringe benefit of helping to keep out that Union.9 And Birnbaum could not resist the comment to Anders in that vein. But bearing in mind that the General Counsel has the burden of proving a violation by a preponderance of the evidence, and that the statement itself is ambiguous, and could refer to rejection of the Teamsters on November 2 and not necessarily to the signing of Mailers cards on September 3, I am of the opinion that the General Counsel's proving this one statement does not meet that burden. Although, as noted above, the complaint does not allege that MacDowell, as a separate employer, discriminated in hiring, the General Counsel does contend that MacDow- ell's selections'themselves support the allegation that the sale was a scheme to retaliate against those employees who helped oust the Teamsters, and to thwart any possible attempt by the Mailers to achieve bargaining rights. There is no evidence to support this contention not already considered with respect to Atlantic's motivation for the sale and whether the sale was "sham." Indeed, two additional considerations point the other way. First, it is unlikely that MacDowell would hire Barbara Williams, the wife of Robert Williams, if he was in fact discriminating against Robert Williams. Second, part of MacDowell's reasons for thinking he could make a go of the afternoon distribution was that he hoped to eliminate wasted time by using part-time employees to "come in at certain hours and start work when he came in," rather than have "a man standing around and waiting." This latter consideration also serves as an explanation of the fact that MacDowell advertised for employees shortly after he began operating as Jersey Distributors; that is, he wanted part-time personnel, who could be used as needed, in order to make a go of the afternoon distribution business. He was, after all, under no obligation to seek out any former Atlantic employees, only not to discriminate against them. There remains for consideration the 8(a)(1) allegations. Three instances of interrogation are alleged as unlawful. One of them, by MacDowell of Ed Juralewicz the day after 9 Although, as I indicated earlier, "keeping out" a union that had never overtly sought to get in, that had held only one meeting almost 3 months earlier, and that was, insofar as this record shows, dormant at Atlantic by the time of the sale. would not seem likely to have been uppermost in Birnbaum's thinking at that time 10 In the event no exceptions are filed as provided by Sec 102 46 of the the election, I have already concluded did not occur. The other two, allegedly by MacDowell of employee MacDo- nald, I also find did not take place, as on the basis of his testimony before me, I do not find MacDonald's testimony reliable nor do I rely on his earlier affidavit. The last violation of Section 8(a)(1) alleged in the complaint was that on October 19 Birnbaum unlawfully guaranteed Ed Juralewicz continued employment on condition he voted for the Teamsters. Particularly in view of the fact that Ed Juralewicz was not kept, despite having voted for the Teamsters, I credit Birnbaum's denial of this promise of benefit. The General Counsel also alleged as violative of Section 8(a)(1) an alleged interrogation by Office Manager Marchese, on September 4, of Barbara Williams, concern- ing the meeting at the Royal Manor Inn the evening before, and Marchese's alleged threat that the men would be in trouble if they voted out the Teamsters and selected the Mailers. Without resolving the conflict between the testimony of Williams and Marchese, because the inter- change between them was isolated in nature, was between an aunt and her niece, and because the "in trouble" in the circumstances was ambiguous and was intended, in my view, not as a threat by management, but as helpful advice, I shall not find any violation based on this incident. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Teamsters and the Mailers are labor organiza- tions within the meaning of the Act. 3. Respondents have not, as alleged in the complaint, engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 10 ORDER The complaint is dismissed in its entirety 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.