Eller & Co., Inc.

ELLER* /4. CO. 57 Eller & Company, Inc. , and Gary Lee Jones and Arthur Lee Brown • , International Union of Operating Engineers Local 675; AFL-CIO and Gary Lee Jones and Arthur Lee Brown. .Cases 12-CA-10556, 12-CA- 10587, 12-CB-2480-1, and 12=EB-2480-2 • •30 November 1984 'DECISION' AND ORDER ' By MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 25 June 1984 Administrative Law Judge James J. O'Meara Jr., issued the attached decision. The General Counsel filed exceptions and -a sup- parting brief, and the Respondent Union and the -Respondent Employer filed answering . briefs. The _Respondent UniOn'also.filed" cross-exceptions and a .„ supporting brief.' ^ - 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 his decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt the recommended Order. ORDER: , • The recommended Oider of the administrative law judge is adopted and the complaint is dis- missed. The mations of the Respondent Union and the Respondent Employer to strike the' General Counsel's Notice of Authority are denied as lacking merit The General Counsel and the Respondent Union have excepted to some of the Judge's credibility findings The Board's established policy is not to overrule an 'administrative law Judge's credibility resolutions unless the clear preponderance of all, the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 1.88 F.2d 362 (3a Cu' 1951) We have carefully examined the record and find no basis for reversing the findings DECISION , STATEMENT OF THE CASE JAMES J. O'MEARA -JR., Administrative Law Judge These cases were consolidated and-tried at Miami, Flon- ,da, on May 3 and 4; 1983: - The Charges were filed by 'Gary Lee Jones 'and Arthur Lee BioWn against the Union .Respondent on January 20, 1983, Subsequently, Jones and Brown filed additional charges against the Company Respondent on -February 1 and 24, 1983,• re- spectively On March 9, 1983, a consolidated• complaint was issued based on the four charges. That complaint al- leges that Jones and Brown were discharged by the Re- spondent Eller & Company, Inc. in response to the re- quest of the Union. The- complaint also alleges that the Union, through several officials, threatened several em- ployees with loss of employment because of Alien - in- •traunion political views and activities ,,The cornplaint charges that such activities constituted y'iolatio-ns-of Sec- tion 8(a)(1) and (3) and Section 8(b)(2)of the Abt., - The Respondents, Eller 'Company, 'Inc and the .Union, deny that they have violated the Act. . • On the entire record,_ including my observation of the demeanor of the witnesses, and in consideration ,of the :briefs filed by the General Counsel; the Company 'Re- 'spondent, and-the Union Respondent, J. make the follow- ing • ' , . - FINDINGS OF FACT,;, , I JURISDICTION • . . - • Respondent Eller & Company, Inc. '(Eller) is a Florida co-rperation with several offices and place's-of business in .the.State •of Florida, including its faciliiy located.at Port 'Everglades, Florida. It has been engaged in the business providing maritime services, including stevedoring services and' warehousing at various locations in several 'States including its facility at Port _Everglades, 'Florida, which is the site of the incident giving rise to this- case. During the past 12 months, Respondent Eller, in the dotirse and conduct of its business operations, performed services valued in excess of $50,000- in States other than 'the . State • of Florida, and is now, -and has' been at all times material; an employer engaged in commerce within the'meannig , of Section 2(2), (6), and (7)-of the Act Respondent International Union of Operating 'Engi- neers; Local 675 (the Union) is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. I find that it will effectuate the policies of the Act to assert jurisdiction in this case. :IL STATEMENT OF, FACTS A - The Business of Respondent - Eller ' Eller is:engaged in the mantimesindustry as a shipping agent and Provides stevedoring and other maritime serv- ices at various seaports throughout Florida, Virginia, and Texas - At its Port Everglades, Florida operation the Company employs operating 'engineers represented by the UniOn as well as other employees. Approximately 3 Percent_ of 'the vessels unloaded by Eller at Port 'Ever- glades' require the use of Eller-operated cranes and union crews to operate them.' B. Eller's Employment of Operating Engineers . 4 The number of operating engineers engaged to operate . . Eller's cranes 'constantly changes due to fluetuatiOns in - the nuinber and type of vessels for which Eller provides steyedonng facilities These operating engineers are Ob- tained through the Union's hiring hall and at the request of Eller. As a result of these circumstances, layoffs of operating engineers occur frequently. In 1982 Eller laid off a, total of 18 crane operators;' some of the operators have been hired and laid off several -tinies ,during the year. 273 NLRB No. 10 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was the`practice 'of the Company at 'all times materi- 'al tiy the issues, in 'this 'complaint to maintain four "per- manent"' OP6-aters_ or "continuous" - employees: These permanent ciPerators perfornied thëir duties in • teams -of two and Operated-itid Maintained two cranes. The four continuous 'emplOyees' 'were treated . 'differently from other operators by the Company in that they were paid 50 cents per hour over and above that wage required<by -a collectiVe-hargaming 'contract with the Union to which Eller was signatory:-'.They also were allowed to remain "on the clock" whenever there was "downtime" Other employees known as "needed employees" were clocked out during "downtime." The 'continuous employees were also able to qualify for 1-week vacations every 6 months and, different from the—as needed employees," wore urn- ' forms identifying them as Eller employees. The .ComPa- ny,determined, which. of its operators, would,be deemed continuous- employees and• such continuous employees were changed fromjime,to time. The practice, of treating •four of the union operators as continuous employees was 'at the Company's option and was not required by tip .collective-bargaining, agreement with the 'Union ,That collective-bargaining 'agreement with the Union, did -not provide- feu- any Seniority • for operating . engineers in regard to their employment either as continuous employ- ees or -as 'needed employees. At the time of the layoff of Gary Lee Jones and Arthur Lee Brown, each was what 'has been- described' as..,continuous , employees, Brown, having been engaged. in • that capacity, continuously during the year that the two operator,,teams were in use. Jones entered the status of continuous employee on May -22, 1982,1, as a replacement for another continuous em- ployee who had been fired • . C. The-Union The Union and Eller are parties to a collective-bar- gaining agreement appli'cable' to the operating engineers employed by Eller The contract, in effect at the time material to the issues in this 'case, 'was one of a-succession of contracts The local -union is administered ..by. the•busi- ness manager, who, since 1976; has been Dennis Walton. The 'business manager is elected by the members of the focal union .On'August 14, an election for local union of- .ficers- took, place. The prime candidates, were incumbent Dennis Walton and • a -challenger, Gus ,Chandler. The campaign pursued 'by Walton. and Chandler was intensive and resulted _in a close election. in which ,Walton was elected. There are 2200 union members . of whom 1160 voted in this election. Walton, the winner; received a plurality of about 26 votes:2, ,The duties of the business manager of the_ local union "include the responsibility for, negOtiating contracts, hiring and;firing union staff, the ,resporisibility for the operation , of the local union, appointment of all shop "ste,Wards, arid , the day-to-daY operation and oversight of the loeal ' All dates are in 1982 unless otherwise indicated 2 The record is unclear as to these total's but is is well established that the nninber of 'ballots was' substantial and the margin of the winner was small s D. Discharge of Jones and Brown On or about October '21, 1982; Eller experienced ad- verse economic-conditions and a reduction in its employ- & complement- was 'neces'sary. 3 Six members of the -Union', including Jones and Brown, were- selected by Eller for layoff Four members' of the-Union continued employment in the status of permanent ,employees. The selection of those employees' to be laid off was not made on the basis of seniority in length of employment with Eller. An evaluation was made by supervisory personnel of Eller. The inclusion among the employees to be laid off of Jones and Brown was due to their "attitude" re- flected on the job and 'arising out of the perceived ad- verse results of the . union election Of August 14. During the period from ihe date of-the election to the October .2,1 discharge, both Brown and Jones had demonstrated their' disappointment, with the results of the , union elec- tion. They • did not converse with fellow employees at the Eller facility. They did not participate in the shared functions of their jobs: such as the cleaning 'of equipment and the maintenance and repair of equipment, and they engaged in unauthorized absences from the area-in , they 'were expeeted to perform their job. These two op- erators were each one of a crew comprising two opera- - -tOrs -and were deemed continuous employees and worked .as the partner or second member-of a crew. Their refusal to, participate in their assigned work caused the other ciew members to undertake an undue share of the allo- cated work The situation was so apparent and destruc- tive of amicable working 'conditions that an Eller super- visor, after unsuccessfully attempting to resolve the mat- ters within' the Eller Company, called on Union Business Manager Walton to </isit the worksite and 'exhort the op- erators to cooperate in the performance of their work Walton appeared at the premises of Eller and advised the 'employees, who, were also members, of the Union, that 'the election was over and that they should return to the amicable work relationship which existed prior to the election. The , condition Which Prompted Eller supervi- sors to request the intervention of Walton was sufficient- ly apparent that Charging Party Jones, in an effort to smooth relations, sponsored a iricnic in early September to which both employee and management personnel' of _ Eller were invited Respondent's manager, Coenen, in consultation with other supervisory personnel, selected Jones and Brown for layoff because of the "attitude" of these employees as described above even though both Jones and Brown -had in the past been members of the continuous employee cadre which was maintained at: the ,option of the Company. Other . operators who had sup- ported- Walton's adversary were retained by the Compa- ny and supporters of Walton were among, those laid off. . pt. -THE ALLEGED UNFAIR LABOR PRACTICE. ' BrOwn and_ Jones Contend that they were included among the 'personnel to be laid Off on October 24 be- cause of their activities during 'the' intraunfon election 3 There's no contention on the part of the parties to this action that 'the reduction of Ellees employee complement was ccintrived or unneces- -'sary ' ELLER & CO. 59 where the principal candidates were Walton and Chan- dler. They allege that the Union, through Business Man- ager Walton, 'influenced Eller to lay them off because they were active and vocal in support of. the unsuccess- ful campaign of challenger Chandler. In support of this allegation, they cite several instances occurring before and after the election of August-14 as evidence of their allegations. The -campaign was hard fought and each of the candidates, Walton and Chandler, vied for the sup- port of the various operators who were members of the local union. Included among these are Jones and Brown. The record suggests that ,they were Of such stature among the union operators at Eller that their support for a particular candidate would generate like support from other members of the Union. As a result, Walton visited among the employees including Brown and Jones prior to the election. About 1 week before the election Walton is alleged by Jones to have said, "Whoever does_ not sup- port me will be down the road" Although Walton denies this statement, no further elaboration on its mean- ing, or definition of any innuendo conveyed by such statement, appears in this record On' August 12, 2 days before the election, Walton, in discussions with Brown in the presence of other union employees at Eller, is alleged to have stated that he wanted good- men to support his candidacy. Brown asked him if that were so, why heitad relieved Randy Costin and George Elvis? Walton alleg- edly replied that people who do not support him do not 'work for him Again on August 13, the day -before the election, Brown, who, up to that date had been the union steward at Eller, was replaced by Douglas Bates. - About 2 weeks after the election the new business steward, Douglas Bates, encountered Jones and Brown on the sob and told them to "watch Out you will be re- placed at Eller." The record does not disclose any elabo- ration by Bates as to his meaning or intent on this occa- sion nor did Jones or Brown question him about it. Also, approximately 2 weeks after the election, Bob Krickovitch, the equipment superintendent, had occasion to .call the union hall. to advise them that they were laying off a union operator because of incompetence. The call, allegedly made in the presence of Brown, was to a union official by the name of Joe Gagne. Krieko- vitch is alleged to have stated to Brown that, during the conversation, Gagne had said to Krickovich that if they laid off anyone they should lay off Brown. Krickovitch denies such a telephone conversation. Again, after the election and approximately 1 week before the October 21 layoff, Bates, in a conversation with Brown and Jones, allegedly told them that they were to be laid off He re- turned several hours later and told them they would not be laid off. Bites denied knowing whether they were to be laid off or having told either BroWn 'or Jones that they would or would not be laid off. On the -morning of October 21, Pete Pescatore, who was acting as the equipment foreman in the absence of Krickovitch, informed Jones and Brown that they had been laid off. Later, on October 21, Jones and Brown spoke to Coenan, Eller's manager,- regarding the reason for their being included among those employees to be laid off. Allegedly, Coenan stated that they had been laid off because of their "political views and that the layoff was a direct order from the Union hall." ,Coenan denies that their discharge had been a result of an order frOM the union hall and he also denies that .he had told Jones and 'Brown that Coenan's reason for including Jones and Brown among those employees to be laid off was their "attitude" comprising their' failure to communicate with other employees, their failure to remain on the sob, their failure to obey orders from the craft supervisors, • and their failure to Maintain their cranes. IV DISCUSSION AND CONCLUSIONS The General Counsel specifies three Clistinct charges against the Respondents. First, he 'contends , that Re- spondent Eller violated , Section 8(a)(3) by terminating the employment of Gary Lee Jones and Arthur Lee Brown because of their union political beliefs and activr-. ties. Second, the General Counsel alleges that Respond- ent Union violated Section 8(b)(2) of the Act by causing the discharge of Ga`ry Lee Jones and Arthiir Lee Brown from Eller's employment Third, the General Counsel contends that the Union violated Section 8(b)(1) of the Act by threatening and coercing employees With loss of employment because of' the employee's union politiaal beliefs The first two issues delineated ,above are reflected in the allegations in the complaint _whereby the General Counsel charges-that the Union requested Eller to termi- nate the employment of Jones and Brown because they had failed to support the successful candidate for busi- ness manager in the union election The evidence reflects, as stated above, that on October 21 Eller found it necessary, because of economic condi- tions, to lay off six, of their crane ,operators because of a reduced demand for such cranes. There , is no contention on the part of the General Counsel that the need to lay off these six employees was not economically prompted. The single issue in this regard is -the inclusion of Gary Lee Jones and Arthur Lee Brown among the six employ- ees laid off. Lee and Brown, contend that the Union di- rected that they be included among the six employees to be laid off because of their opposition to the successful candidate for business ,manager, Dennis Walton, in the prior election. The only direct_ evidence of this consists of the statement_ -by Jones and Brown that Coenan, Eller's manager, told them that they were discharged for political reasons and on direct orders from the Union and that a list of employees to be laid off was given to Coenan. Coenan denied the statement attibuted to him and also denied that the Union had any influence what- soever in the- selection of employees to be. among those laid off. No list of such employees was produced nor was there any evidence of such a list. - Coenan contends that it was he who made the selec- tion of Jones and Brown to be among those laid off. He stated that the_ reasons for the inclusion of Jones and Brown to be laid off was their "attitude ". After the elec- tion of Walton, Jones and Brown became sullen, refusing to communicate with the other members„of their crane crews, and were away from the sobsite,when needed and -would not participate in. their share of the..work in both the operation and maintenance of she particular equip- 60 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment with which they were charged Fellow employees have testified in this record that both Jones and Brown refused to take a proportionate share of the work in the operation and maintenance of the crane which they oper- ated. On one occasion, deemed characteristic, a crane was in need of maintenance or repair work and the crew was asked to attend to the work in order that the crane would be operable by 1 p m. Brown and Jones left the location of their work with the crane and went to lunch, which conduct, but for other employees, would have precluded the operational status of the crane by 1 p.m. The evidence also reflects that Jones and Brown would not participate in the maintenance of their cranes as was required by their jobs and were tasks which they had performed prior to the election. Coenan characterizes this action as a poor "attitude." He is also charged to have said that the reason for Jones and Brown's inclu- sion among -those to be laid off was their "political yiews." Although Coenan denies the use of the term "political views," it is probable that, since Jones' and Brown's reaction was to the results of the union election, such a posture could be deemed political views with the uriderstanding that politics were those a and within the Union. The situation after the election became intolerable to the supervisory personnel at Eller" and they requested Business Manager Walton to visit the port, talk to the men, and attempt to reconcile the differences in order that the work at the port could continue without the dis- ruption and delay caused by union politics. Walton came to the _port, talked to the Union members employed by Eller, and urged them to forget the election and the pre- vious campaign and wOrk harmoniously in order that the job which they were called on to perform could be ac- complished to the satisfaction of management Jones also recognized the aura of discontent prevailing at Respond- ent Eller's facility since he; in September, had sponsored a picnic to which both union employees and manage- ment personnel of Eller & Company had been invited. Jones acknowledged the purpose of the picnic was to al- leviate the tension and reduce the discontent among the employees at Eller It seems, therefore, that the postelec- tion atmosphere at Eller & Company was tense and dis- ruptive. Coenan perceived Jones and Brown to be all, or some, of the cause of such conditions" and he selected them to be laid off in order to retain 'employees whom he perceived to be qualified and compatible with a more amiable atmosphere. I find that the reasons attributed by Coenan for the layoff of Jones and Brown are persuasive in view of the conditions existing after the election at Eller. Further, it is improbable that in the event the Union had influenced the inclusion of Jones and Brown among those to be laid off, that Coenan would have expressed this to the em- ployees so affected. There is no supporting evidence of Coenan having made the statement nor is there any evi- dence of the exisience of va list of such employees. It is further significant that among the six employees laid off on this occasion, 'Several were Walton supporters during the recent election . The Charging Parties, Jones and Brown, infer great significance to the fact that they were members of the continuous employees, "permanent employees," or "cadre" of operators whom, according to Eller's prac- tice, were retained even in times of slow work They contend by innuendo that this position gives them some tenure not available to other employees. It must be noted that in March, Jones became a member of such cadre only after - another former cadre employee was dis- charged. By this very fact Eller's position is confirmed that the membership among the permanent- employees did not depend on seniority nor other factors except those that tended to create a better working crew of em- ployees. The benefits to their permanent employees were voluntarily granted by the Employer. Such things as a 50-cent increase in wages over scale and being permitted to stay "on the clock" during downtime were among some of these benefits. The contract did not require such benefits and the Union was aware that Eller granted them. Notwithstanding the detailed description of this cadre, the membership within it was not entitled to any tenure or special preference. Therefore, notwithstanding Jones' and Brown's good performance prior to the elec- tion, when their persistence in permitting their political views of union matters to interfere with the discharge of their employment and that of other employees the Em- ployer had the right, in selecting those employees to be laid off, to number them among such employees. Thus, the contention of Coenan that Jones and Brown were laid off because of their "attitude" and/or their "political views" is persuasive when weighed against the self-serv- ing, unsupported testimony of Jones and Brown that Coenan made a statement suggesting a contrary reason for their discharge, I, therefore, credit the testimony of Coenan and find that the reasons for including Jones and Brown among those to be laid off were legitimate, lawful reasons and not the result of influence or urging by the Union Another factor in suport of such a conclusion is that there appears to be no reason in this record that the Employer should subserviate its judgment as to who should' be employed to the Union. There was an abun- dance of operators and nothing in this record to indicate that the Union was in a position to enforce their sugges- tion; on the contiary, layoffs were frequent and opera- tors were numerous. Several collateral episodes are contained in this record apparently in an attempt by the General Counsel to create an aura, by innuendo, of interference by the Union During the ' campaign, prior to the election, Walton was alleged to have stated that, "No one works for me unless they support me." The record shows that the office of business manager of the Union carries with it a number of appointment rights including that of assist- ant business manager, "No one works for me unless they support me." Specifically, Randy Costin, an assistant business agent, was removed as an assistant business agent by Walton. On the day before the election, Walton removed Brown, from his job as steward and appointed Doug Bates to such position. These appointments are the prerogative of the business manager of the Union and does -not support the contention that Walton, the business 'manager of the Union,- intended his remarks to refer to ELLER & CO 61 the employment of the union members with the employ- er. I find this evidence to be nonprobative of the issues Approximately 2 weeks after the election, Brown had the occasion to be in Krickovitch's office. Krickovitch had placed a call to the union hall asking for Walton, the business manager, or Joe Gagne, the assistant business manager. The purpose of the call was to discuss with the Union the replacement of an employee the Company in- tended to discharge because they were dissatisfied with him. After concluding the conversation with Gagne, Knckovitch, according to Brown, turned to him and told Brown that Gagne had informed him that if Eller wanted to lay off anybody at the jobsite that it should be Brown. Knckovitch denies that Gagne had told him that if anyone was to be laid it should be Brown and he also denied that he told Brown that Gagne had so stated. The employee with whom Eller had been dissatisfied was dis- charged. Here again we have the testimony of Brown as to the conversation with Krickovitch and Krickovitch's denial of the conversation. No further action on the part of the Union or Eller is related to this conversation 4 It would probably be necessary to determine Knckovitch's status as a supervisor if the evidence arising from his tes- timony was significant. Since no probative value is at- tached to the testimony of Knckovitch in regard to his conversation with Gagne, it becomes unnecessary to de- termine Knckovitch's status Other statements attributed by Jones and Brown to the new union steward, Bates, create what could be de- scribed as an innuendo. Statements such as Bates alleged- ly having stated that Jones and Brown were to be laid off and then an hour or two later that they were not to be laid off are nonprobative of the issues of the case Jones and Brown contend that when they confronted Coenan he allegedly told them that they were discharged because of direct orders from the Union They asked him if he would testify to that before the Board Coenan was alleged to have said that he would tell the truth. Subse- quent efforts to get a statement from Coenan to the effect that the Union had directed their layoff were una- vailing. The request to Coenan for such a statement was made after the Charging Parties had filed their complaint against the Union and before they had filed a similar complaint against the Company. In this interim, and on the refusal of Coenan to give them a statement in the manner which they requested, Jones and Brown went to Steven Erb, vice president of Eller's Florida operations. They advised Erb that they had been unsuccessful in get- ting a letter from Coenan stating that the reason for their inclusion among those employees laid off was because of pressure from the union hall, and that unless they got such a letter they would bring action against Eller before 4 Krickovitch's status is not clear in this record in that he is mentioned by several different titles One of the titles was craft foreman The posi- tion of craft foreman is defined in the collective-bargaining agreement be- tween Eller and the Union This agreement expressly provides for a craft foreman who shall not be deemed a supervisor Sec V. art 3 provides, in part. that The craft foreman will be the leadman of the employees in the bargaining unit Such individual, however, shall neither have the author- ity to, nor shall exercise any of the functions customarily "exercised by supervisors within the meaning of the National Labor Relations Act, as amended, and in no way shall such individual be deemed to be an agent of the Union S' the Board Erb told Jones and Brown that he would advise Coenan that they had come to see .him which he did and no further action on the subject was carried on by Erb On Februrary 7 and 24, 1983, respectively, Jones and Brown caused the filing of a companion complaint against the Company. There is evidence in this record comprising a letter sent by Brown to the general president of the Union. That letter stated that Walton had influenced their layoff because of their opposition to him in the election. Walton, in response to a query in that regard from the general president, requested a statement from the compa- ny as to the reason for the inclusion of Jones and Brown and directed such letter to the president of the Union. The letter from the employer indicated that the reduc- tion was due to a reduced demand for cranes created by economic conditions. In summary, it is my conclusion that Jones and Brown were included among those to be laid off on October 21, because of their selection by the management based on the perception that working conditions at the Employer's facility would be improved and best served by the layoff of Jones and Brown I find that the General Counsel has not discharged the burden of proof by the evidence in this record that the inclusion of Jones and Brown among those to be laid off was instigated by the Union nor was the result of pressure by the Union on the Employer I further find that the General Counsel has not established by a preponderance of the evidence that the Union took steps to influence the inclusion of Jones and Brown among those to be laid off on October 21. Jones and Brown have testified to certain statements made by Walton, Coenan, Bates, and Krickovitch. Each of these statements can be characterized as self-serving to Jones and Brown as none of the statements are corrobo- rated by other testimony and all have been denied by the alleged declarant Nothing in the observed demeanor of the alleged declarants and nothing in the content of their denials gives me cause to discredit their testimony Except for the alleged statement of Coenan that Jones and Brown were laid off because of direct orders from the Union, all of the content of the statements fall short of establishing that the Union was instrumental in Jones' and Brown's discharge or that the Company succumbed to alleged influence by the Union in the selection of Jones' and Brown's layoff All evidence considered, it is my finding that the Gen- eral Counsel has faded to establish, by a preponderance of the evidence, the allegations made in the complaint. CONCLUSIONS OF LAW 1 The Respondent, Eller & Company, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2 The Respondent, International Union Of Operating Engineers Local 675, AFL-CIO, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established, by a pre- ponderance of the evidence, that Respondent Eller & 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, Inc. nor Respondent Union violated 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- edP ORDER The complaint is dismissed in its entirety 5 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