United States Postal Service

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Postal Service and Miguel Angelo Vega. Case 29-CA-I 1989(P) 9 January 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 23 September 1986 Administrative Law Judge Robert T. Snyder issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-ex- ceptions 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, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, fmdings, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Kevin R. Kitchen, Esq. and Anthony Ambrosio, Esq., for the General Counsel. Stuart A. Abrambson, Esq. and Laurence A. Dinerstein, Esq., of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge. This case was heard by me on 3 and 4 February 1986 in Brooklyn, New York. The complaint, which was issued on 4 November 1985, alleges that the Respondent, United States Postal Service (Postal Service), suspended Miguel Angelo Vega, the Charging Party, for a 14-day period and threatened to terminate his employment be- cause he had engaged in protected concerted activities as a shop steward on behalf of the National Post Office Mail Handlers, Watchmen, Messengers and Group Lead- ers Division of the Laborers' International Union of North America, AFL-CIO, Local 300 (the Union), and engaged in other protected concerted activities, and be- cause he filed a charge and gave testimony under the Act, in violation of Section 8(a)(l), (3), and (4) of the Act. Respondent denied that it engaged in any violations of Vega's rights under the Act and asserted, by way of affirmative defense, that all allegations of the complaint should be deferred to the grievance-arbitration provisions of the National Agreement between the Postal Service and the Union. Based on the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by Respondent and the General Coun- sel, I make the following FINDINGS OF FACT 1. JURISDICTION The Board has jurisdiction over the subject matter of the complaint by virtue of Section 1209 of the Postal Re- organization Act, 29 U.S.C. § 151 et. seq. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits and I find that the Union, Na- tional Post Office Mail Handlers , Watchmen,' Messengers and Group Leaders Division of the Laborers' Interna- tional Union of North America, AFL-CIO, Local 300, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The unit of the Postal Service involved in this contro- versy is the Respondent's facility at 185 West John Street in Hicksville, New York. The mailhandlers at this facility are represented by the- Union for the purposes of collective bargaining. Miguel Angelo Vega, a mail- handler at the aforementioned facility, has been em- ployed by Respondent for approximately 13 years. Vega concurrently became a member of the Union and was ap- pointed a shop steward sometime in 1984. Vega's work area is defined as the Sectional Center Facility (SCF). The SCF is a sorting operation where mail is separated according to whether it is machinable or nonmachinable. Under normal conditions there are 12 employees working in the SCF area. The area consists of a series of conveyor belts. Vega's job entails culling trays of mail onto a conveyor belt and removing letters that are damaged and cannot be processed through the letter- sorting machine. Vega works Wednesday through Sunday on the 3 to 11:30 p.m. shift. During Vega's tenure as shop steward he has filed ap- proximately 25 to 30 grievances, half of which were on behalf of other employees. Vega further testified that he has investigated approximately 10 other incidents based on requests from employees in which grievances were not filed. Throughout Vega's stewardship, Respondent has taken issue with how he undertakes investigation of grievances. Insight into the nature of this conflict is es- sential to an understanding of the events on which the complaint is based. Preliminarily, the National Agreement between the Postal Service and the Union, generally effective 7 Janu- ary 1985 to 20 July 1977, contains certain provisions re- lating to the grievance procedure, discipline procedure, and rights of stewards which are relevant to this conflict. In article 15, "Grievance-Arbitration Procedure," section 15.1 defines a grievance broadly "as a dispute, difference, disagreement or complaint between the parties related to wages, hours and conditions of employment" and shall include, but is not limited to, "the complaint of an em- ployee or of the Union which involves the interpretation, 282 NLRB No. 102 POSTAL SERVICE 687 application of, or compliance with the provisions of this Agreement." The formal grievance procedure, in section 15.2, contains a detailed four-step formal process culmi- nating in binding arbitration at both the national and re- gional levels (section 15.4). Step 1 provides for a griev- ance to be initiated by either an employee or the Union within 14 clays of the date on which the employee or the Union 'first learned or may reasonably have been expect- ed to have learned of the grievance's cause or facts giving rise to the grievance. It is initiated, by a discussion with the employee's immediate supervisor. If filed by an employee, he or she may be accompanied by the em- ployee's steward or a union representative. The, supervi- sor and steward or other union representative have au- thority to settle the grievance. If not settled, the supervi- sor shall render a decision orally stating the reasons for the decision, and provide it in writing within 5 days thereafter, initialing a form to be used at step 2 within another 5 days if requested by the union representative. Section 15.3(A) of the agreement notes the parties' ex- pectation that good-faith observance, by their respective representatives, of the principles and procedures recited for all steps will result in settlement or withdrawal of substantially all grievances initiated thereunder at the lowest possible step and the parties' recognition of their obligation to achieve that end. Article 16, "Discipline Procedure," contains a progres- sive discipline format, starting with discussions for minor offenses, not considered discipline, running through let- ters of warning, to 'suspensions of 14 days or less, to those of more than 14 days or discharge. In a statement of principle, a basic principle is affirmed that discipline should be corrective in nature rather than punitive. Dis- cipline and discharge- must also be based on just cause, including, but not limited to, inter, alia, insubordination and failure to perform work as requested, and any action against an employee is subject to the grievance-arbitra- tion procedure. Article 17, "Representation," provides in section 17.1 for the designation of stewards for the purpose of investi- gating, presenting, and adjusting grievances. Section 17.3, "Rights of Stewards," paragraph A, provides, in part: When it is necessary for a steward to leave his/her work area to investigate and adjust grievances or to investigate a specific problem to determine whether' to file a grievance, the steward shall request permis- sion from the immediate supervisor and such re- quest shall not be unreasonably denied. Related to this provision was the resolution of a class action grievance 'made at a labor management meeting held on 16 November 1984, attend by Tour Superinten- dent Joseph Moder, Supervisor of Mails Donald Fergu- son, and Labor Relations Assistant ' George 'Fredericks for management and Administrative Vice, President Robert Lussos and Steward Vega for the Union. The class action resolution reads as follows: It is resolved in that an employee does not have the right as a steward to leave his work area without permission and interrupt a supervisor who is giving another employee instructions. In addition, an em- ployee who is also a steward is required to perform his job correctly and to follow instructions he or she may receive. Being a ,steward does not give im- munity from disciplinary action. Furthermore, upon proper request stewards time will not be unreason- ably denied. Moder testified that this item was raised by manage- ment because of problems, with grievances getting to step 2 of the procedure without going through the step 1 process' because of the manner in which Vega was rais- ing disputes on 'the work floor "by leaving his work area, going up to his supervisor, not presenting a step one grievance or yelling across the workroom' floor, saying and repeating he wanted union time." Moder tes- tified that at the meeting the Union agreed that Vega would go to the supervisor and request union time and only after it was approved 'would he punch his timecard into the union number that would officially give him union time. Vega, while undergoing cross-examination, admitted that one of his problems in dealing with man- agement `had been that on occasions he would call out to the supervisor from his work location that he wanted union time rather than approach and speak'to him quiet- ly. Vega also recalled that at the November 1984 meet- ing one of the grievances subject to discussion was the way in' which stewards were to conduct their business, but he could not recall its resolution. Vega has been disciplined on several occasions during his tenure as shop steward for incidents related and unre- lated to his activities as steward. On 15 October 1984 Vega responded to a request by coworker Bob Wolf to investigate a safety problem. Vega had left his work area to obtain a piece of needed equipment when he was ap- proached by Wolf. Wolf told Vega that a button used in the operation of a conveyor belt was crushed and had sharp edges. Wolf further claimed that the safety captain, Fitzgerald, was not doing anything about the situation. Vega testified that he approached his supervisor, Donald Ferguson," about the problem and asked if lie would fix it. Ferguson told Vega that he was out of his work area and he asked to see the count' card of culled mail that Vega was asked to fill out. Vega had not' filled out the card. Consequently, Vega was issued a letter of warning on 25 October 1984 for rpeated failure to follow, in- structions. The warning -letter, states the grounds for the discipline as interruption of operations after being told not to do so in the past and failing to fill out the, count card after being told to do so, The warning letter was subsequently reduced to a discussion, a nondisciplinary action. Another incident in which Vega was disciplined for activities related to his steward position occurred on 14 September 1984.2 Vega claimed that he witnessed Super- 1 On cross-examination, Ferguson admitted that Vega had tried to dis- cuss a safety problem concerning a broken button and that the letter of warning was based on that incident and the fact he had not filled out his count card. 2 The events of this incident are based on the unrebutted testimony of Vega and the notice of suspension issued to Vega on 17 December 1984. 688 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD visor Ferguson harassing the employees by making them lift 70-pound bags of mail and spill them onto the belt a little at a time and by making unnecessary critical re- marks about how they were doing it. Vega approached Ferguson and told him he was browbeating the employ- ees and doing bargaining unit work. Ferguson walked away and Vega followed him. Ferguson then told Vega to return to work. Vega repeated his contentions and said he would return to work. Vega then began making notations on a pad. Ferguson saw this and told Vega that he just bought a suspension. Vega was issued a, 7-day suspension on 17 December. The notice of suspension states that Vega was twice told to return to work when he began making notations. Ferguson then instructed Vega to return for a third time and Vega continued to loiter in the mixed state section. The suspension was sub- sequently upheld by an arbitrator in a decision issued 13 January 1986.$ On 24 January 1985 Vega was given a 14-day suspen- sion for failure to follow instructions and insubordination relating to incidents that took place on 18 and 19 Janu- ary.4 On 18 January Supervisor Ferguson observed Vega and coworker Mantagna having a conversation in an aisle away from their work area without permission. This activity resulted in the idling of eight other employees. After being told to return to work, Vega followed Fer- guson to his desk and demanded to know why part of the SCF ring crew was working other operations when there was mail in their regular operation. Ferguson told Vega he would discuss it later and to return to work. Vega did not return and twice again demanded an answer. Ferguson called Supervisor Hillsberg over and again instructed Vega to return to work. Vega did not respond and again demanded an answer to his question. Hillsberg then advised Vega to return to work, where- upon Vega repeated his demand. After being asked to return to work again, Vega asked for grievance time to handle the situation. The two supervisors then told Vega to return to work and he finally complied. The following day, 19 January, Vega was given an order to return to his work assignment by Supervisor Day. Vega returned to work after initially ignoring the directive. Day then ordered Vega to resume working several times, whereupon Vega began shouting at Day, creating a temporary work stoppage among the other employees. This created a delay in the mails. Vega was then ordered off the workroom floor and he complied only after being ordered several times. Vega' s suspension for these incidents became the partial basis for an, unfair labor practice charge filed on 4 June 1985 alleging his continuous harassment and discipline in retaliation for his activities as union steward and his exercise of protected concerted activities under Section 7 of the Act.5 The 14 day suspension was subsequently modified to 8 days in an arbitration decision issued 13 January 1986. On 22 March 1985 another incident involving Vega and Ferguson led to Vega's receiving a notice of remov- a The arbitration decision is R. Exh 8. 4 The events of these incidents are based on the unrebutted testimony of Supervisor Ferguson and the notice of suspension which is R. Exh. 9. 8 The Board charge filed in June 1985 was dismissed in part and de- ferred to arbitration in part. See infra. al.6 Due to a problem with his back, Vega was relegated to light-duty status. Vega claimed that Ferguson was making him do work where he had to bend down and lift a- lot of weight. Ferguson denied Vega's request to see the nurse. Vega testified that Ferguson would not let him sit down when his back bothered him and that these circumstances were driving him crazy. Thus, Vega re- quested to see Employee Relations Manager Torres. Vega claimed that Ferguson gave him permission to see Torres for 5 minutes. Consequently, Vega went to Torres' office to speak with him. The notice-of-removal letter states that Vega left the work floor without per- mission to go to Torres' office. The notice of removal noted that elements of Vega's past record considered in arriving at the disciplinary decision included (1) a 14-day suspension on 24 January 1985 for failure to follow in- structions and insubordination, (2) a 7-day suspension on 17 December 1984 for failure to follow instructions, and (3) a letter of warning dated 7 December 1984 for failure to follow instructions. The notice of removal was subse- quently reduced to a 14-day suspension as a result,of a discussion between Robert Lussos,7 Vega, and Ferguson. In the agreement reducing the discipline, Vega guaran- teed a fair day's work for a fair day's pay and promised to follow all supervisory instructions. B. The Sequence of Events That Led to Vega's Suspension The events which led to the suspension of Vega, which is the subject of this proceeding and on which the General Counsel relies, began on 24 July 1985. Accord- ing to Vega, he had just returned that day from vacation when he was approached by mailhandler Fitzgerald, who asked if he, Fitzgerald, could do a simple distribu- tion job. Vega said he saw no reason he could not and asked Supervisor Louis Adams if he could. Adams re- ferred Vega to Paul Bauccio, the acting tour superin- tendent. Bauccio told Vega and Fitzgerald that the em- ployee had to discuss the grievance first with his supervi- sor. Vega said that an employee "doesn't necessarily have to do that, he may be accompanied by the shop steward, do it alone, or the steward can do it on his behalf." Bauccio said, "[T]his is my policy." Vega said, "[I]t may be your policy but that's not what your Na- tional Office and the Union agreed to." Bauccio reaf- firmed his policy and Vega said they would comply. On 24 July Vega also told Supervisor Adams near Adams' desk area that , he was doing bargaining unit work, pushing "post cons" to storage areas. Adams re- plied, "[W]ell just for that now you people are going to have to ask for permission to go to the lavoratory [sic] and you're going to have to have a pass to talk." Vega said that he had one grievance to this effect and he would write it up and Adams told him to go back to his work area. At 8 or 9 o'clock that evening, Vega, asked Adams to give him a 7020 form (a form filled out by the steward 8 The events of this incident are based on the testimony of Vega and the notice of removal dated 28 March 1985, which is R. Exh. 2. 1 Lussos is the administrative vice president of the Union POSTAL SERVICE 689 when taking grievance time) for having gdne' to Bauc- cio's office earlier with Fitzgerald . Adams refused. Vega said, "[Y]ou people are always trying to suspend me for not doing union work and how am I supposed to prove that I was doing union work if you won't give me a form." Adams said he did not really have to give it and Vega said he was going to write it up. Then Vega asked Adams for "union time" to investigate problems two em- ployees, Ross and Axen, were having regarding hour changes and guard duty which he had been asked to look into by his administrative vice president. Adams denied the request on the ground that the employees never discussed it with their supervisor and therefore there was no complaint. Vega said he would write this up if he was not given the time. Adams then told him to return to his work area. About 5 minutes later 'Adams told Vega to report to Bauccio's office . On his arrival, ]Bauccio told Vega the employees never talked to their supervisor , about the problem. Vega told Bauccio that the employees were not required to do that, and that the Union could look into it. Bauccio said this was his policy, and Vega said he had this memo from his admin- istrative vice president and, having been away on vaca- tion, did not know what it was about. If Bauccio was not going to give him the time, Vega was going to write it up. Bauccio paused and then asked how ' much time did Vega ' need. Vega said just enough time to see the em- ployees and find out what the problem was. Bauccio then gave him the time. On 25 July 1985 Vega told Adams that he had a plant clerical doing mailhandlers' work and he should bring in mailhandlers on overtime . Adams replied, "[Y]ou know what the budget is, I'm gonna do whatever I can to move the mail." Vega ^ responded, "[Y]ou can do that but, you know, I'll write it up" Earlier , Vega had heard employee Fitzgerald say he wanted to see his shop stew- ard, and Adams tell Fitzgerald to return to work. That evening, Vega went to Adams'- desk and asked him for union time concerning Fitzgerald 's complaint. Adams denied the request because the employee never discussed any problem with him. Vega told Adams that the em- ployee had talked with him, but Adams told Vega to go back to his work area. About an hour later, Vega again went to Adams' desk to ask for union time concerning Fitzgerald, and Adams said, "I don't know, I'll see." Vega said, "[L]isten, if you're not going to give me the union time, I'm just going to write it up." Adams then told Vega to return to his work area. On 26 July 1985, while working, Vega observed Adams standing over employees and, in his words, "brow beating" them and pointing out trivial things. Vega told Adams he had won grievances concerning this, and Adams told Vega not to talk union matters while he was-working and to stop shouting . Vega told Adams that he was not shouting across the room and that Adams was only 10 feet away from him. Adams said, "[Y]ou have to talk union matters at my desk," and ordered Vega to his desk. Adams then telephoned Bauc- cio, at first informing Vega to go to Bauccio's office, but then, after he completed the call, telling Vega that Bauc- cio was coming to the work area. Vega went back to his work-area. A few minutes later, Adams called Vega back to his desk and Bauccio was there . Bauccio asked what the problem was,, and then had Adams talk first, with Vega allowed to talk afterward. Adams said that he did not have many rights, but that he had a right to talk to Vega about union matters at his desk. Vega then said that he, referring to Adams, had been "standing over people, brow beating them, picking out all this stuff and my one grievance is that you're tell- ing me I can't talk unless I have a pass, go to your desk." Bauccio told Vega to lower his voice because Vega was shouting and he did not want Vega to shout. Vega said he was not shouting and that Bauccio was not listening to what he was saying. Bauccio then told Adams to take this down and told Vega to leave the building within 5 minutes. Vega left the building. The next day, 27 July 1985, Vega reported to work and was called down to the office of Joseph Moder, the tour superintendent, who had been absent on vacation during the prior week. Moder had a copy of the letter from the Regional Director concerning the 4 June unfair labor practice charge Vega had filed. According to Vega, Moder was looking at the letter and said, "[W]ell Mr. Vega it appears here that you lost and the others he motioned his hand] are going to arbitration." Moder then asked, "[D]o you really want to work here?" Vega was quiet and Moder continued, "[I]t seems that you don't want to work here, this is like a ball, 'just keeps reoccur- ing [sic]. I thought this was all settled in November.,, It seems that you might get fired for this, do you , have any- thing to add to this?" Vega said, "[N]o," and Moder told him to return to work. On 2 August 1985 Vega received the notice of remov- al from Adams and Bauccio. Vega was working by the culling conveyor , belt when Adams called him to his desk, Bauccio told Vega to read the letter and asked him to sign it. Vega read the letter and said lie was not going to sign it. Bauccio told Adams to note that Vega would not sign it and then he and Adams signed the notice. The notice of removal, signed by Adams and Bauccio and dated 2 August, referred to the incident on 26 July 1985. It reads as follows: You are hereby notified that you will be removed from the Postal Service [on] September 6, 1985. The reason for the action is: Failure to Follow Instructions On Friday, July 26, 1985, at approximately 1545 hours while talking to me and the Acting Tour Su- perintendent, Paul Bauccio, you became boisterous. On at least three occasions I instructed you to lower your voice, due to the fact that you were dis- rupting the SCF operations as evidenced by the fact that people ceased to work in order to observe your behavior. You were told by Mr . Bauccio to leave the facility for failing to obey repeated instructions 8 Moder was referring to the resolution of the 16 November 1984 grievance involving Vega's conduct as steward, discussed supra. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to cease your disruptive behavior. Your tour of duty was ended at approximately 1550 hours. In addition, the following elements of your past record have been considered in arriving at this deci- sion: On March 28, 1985, you received a Notice of Re- moval which was subsequently reduced to a disci- plinary suspension in lieu of the Notice of Removal,. as a last chance basis. You have the right to file a grievance under the Grievance/Arbitration procedure set forth in Arti- cle 15 of the National Agreement within 14 days of your receipt of this notice. On 19 September 1985 this notice was reduced to a 14- day suspension on a second-step appeal by the Union from the initial removal notice. By letter dated 9 Decem- ber 1985, following a step 3 meeting between the parties, the Postal Service denied the grievance. The Postal Service argues that it is this grievance to which all alle- gations of the complaint should be deferred pending a final and binding resolution under the grievance-arbitra- tion provisions of the National Agreement between it and the Union. Donald Ferguson, supervisor of mails at the Hicksville location, testified that he supervised Vega from'sometime in 1984 until around March of 1985 when he was trans- ferred to a different operation. Ferguson confirmed that he had admonished Vega'that there could be corrective action for not going back to his work area on one occa- sion and, instead, taking out his note pad and making notes -without asking for union time after Vega had come to him over a work problem. After discussing the matter with his tour superintendent, Ferguson, on advice, decid- ed not to ' raise an issue of Vega's note taking in the future because of his status as steward. Ferguson also confirmed that Vega-had received a 2-week suspension in January 1985 for insubordination and failure to follow instructions to return to work, remaining at Ferguson's desk for some 5 minutes after being directed to return to work. This was the occasion when Vega had demanded to know why part, of the SCF ring crew was working on other operations. Although Ferguson denied under cross-examination that he had asked that Vega resign as shop steward at some point in time while under his supervision, he admit- ted that he had discussed with Lussos of the Union at a meeting held to discuss Vega's March 1985 notice of re- moval a proposal to resolve the continuing problem with Vega that Vega give up his stewardship, take a volun- tary transfer to another operation, consider a 30-day no appeal suspension, and promise in writing a fair day's work and to follow instructions. Louis W. Adams, supervisor of mail, was in charge of the SCF sorting operation at the Hicksville facility and had been Vega's immediate supervisor since June 1985. According to Adams, Vega's practice as steward was to call out a request for union time from his work area to Adams seated at his desk or passing by. Adams' contin- ually instructed Vega that anytime he wanted union time he was to come to Adams' desk and they would discuss it, not to call out from his work position on the belt. Vega continued to disregard these instructions. Yet, he was given time to investigate" and present grievances. On the evening of 24 July, Vega approached Adams to ask for union time because he had a grievance. When Adams asked the nature of the grievance, Vega replied he did not have to disclose it. Adams asked how could he give time without knowing the nature of the griev- ance. Vega said that Adams could not tell him how to conduct his union business . Adams called Bauccio, and he and Vega went down to Bauccio's office. After some time there, Vega finally disclosed that the mailhandler with the grievance was Fitzgerald. Fitzgerald was then summoned to the office and, when Vega was again asked the nature of the grievance, he asked for time to talk with Fitzgerald. Adams asked why this was necessary if Vega had already discovered he had a grievance. Vega did not respond. Adams then left to return to the work floor, leaving Vega with Bauccio. The next day, Adams refused Vega's request for union time for the visit to Bauccio's office. Adams next testified about the events of 26 July. On that day, shortly after assigning the employees on the rings, he told the mailhandlers he would like for them to cull the mail a little faster to get mail into the SCF rings so the clerks would have work to do. Adams testified he just wanted them to speed it up because they were work- ing at a very slow pace. At this point, Vega, who was working nearby on the belt, about 5 feet away, said loudly that Adams was harassing the employees and he would bring Adams up on charges. Adams explained to Vega that he did not consider it harassment to ask the employees to perform the duties,that they were assigned to do. At that moment, Adams noticed another employee more or less playing around with the mail and he told him he wanted him to cull it much faster. Vega raised his voice again and said Adams was harassing the em- ployees. Adams then asked Vega to come over to his desk. At the desk, Adams told Vega that in the future if he wanted union time or to discuss a union matter, he should not do it on the belt, he should come to Adams' desk and they would discuss it there. Vega's response was that "you are harassing the employees , I'm going to bring you up on charges." At this, point Adams told Vega to return to his work area, and he did. Adams next called Bauccio, the acting tour superin- tendent, explained the problem, and asked if he would be able to come to the floor. Adams heard Vega at his workplace say, "[T]his guy's harassing us, we don't have to take this and its unfair." Adams saw the mailhandlers and clerks working at a slower speed than they had been prior to the conversation he had held with Vega. After a few minutes, Bauccio arrived and Adams called Vega back to his desk. Adams told Bauccio what had happened between them before his arrival. Vega said he was being harassed, the employees were being harassed, they were asked to work faster, and he was going to bring Adams up on charges. Vega was speaking in a louder voice than when he had made his previous accusations. Adams asked him to calm down three times, but without success, and at this point Bauccio asked him to leave the building. Vega POSTAL SERVICE left, and was later paid for the time as administrative leave. Adams asserted that during this time he did not raise his voice and was trying to calm down Vega. He had called Bauccio because Vega's conduct, his loudness which was causing somewhat a slight disruption in-the operation, had gone beyond the point of Adams' han- dling it alone. Before Bauccio told Vega to leave , he had said that Adams had a right to tell the employees he felt they should work faster, and that it was management's right to ask the employees to perform their duties. Shortly after Vega left, Adams went to Bauccio's office where they discussed the incident that had just transpired and Vega's work record by examining his per- sonnel folder. Both of them concluded that removal from his job was now the appropriate discipline for Vega under the Postal Service progressive discipline system because his record included several prior removals, which had been subsequently reduced to suspensions, and several prior disciplines for failing to follow instruc- tions. They ' called Thomas Rosati, manager of distribu- tion at Hicksville, who agreed with their recommenda- tion. The removal letter followed in a few days. Adams was not personally aware on 26 July 1985 that Vega had recently filed an unfair labor practice charge which, by letter from the Regional Director dated 18 July 1985, had been dismissed in part and deferred in part to the grievance procedure. -Paul Bauccio, acting tour superintendent, testified that on 24 July he had received a telephone call from Adams, who told him he was having a problem about union time with Angelo Vega, who had come to see him about a step 1 grievance, and he did not know what it was about. Bauccio told Adams to bring Vega to his office. When they arrived, Adams , explained that Vega had asked for union time ' concerning a step 1 grievance, but would not tell Adams what it was about, saying he did not have to. Bauccio -asked Vega to state the problem. Vega said he had a step 1 grievance and management never gave him union time. Bauccio explained that Adams, as supervisor of that area, should be aware of why he needs union time. On Bauccio's request, Vega said the, step 1 griev- ance was for Paul ' Fitzgerald. Bauccio then called Fitzgerald to the office . On Bauc- cio's questioning, Fitzgerald said he did not want a shop steward, he did have a problem, but had not brought it to Adams' attention. Fitzgerald agreed to leave the office with Adams to discuss it, rejected Vega's offer to be present, and left. At Bauccio's request, Vega remained. Bauccio said he was in charge of the tour at the time and asked Vega to listen to , his views regarding how stew- ards and supervisors should acct when it comes to union time. At his usual post in a nearby building, Bauccio said, they have a rule that if a shop steward needs union time, he goes to his immediate supervisor quietly with the request, that supervisor goes to his immediate super- visor for an assessment, and the request is then granted. In his current, acting position there are no general super- visors so the request comes to him as tour superintendent as the responsible party for the methods, means, and per- sonnel to get the job done in a professional manner. 691 Vega agreed it was a fair policy, but stated he would determine what he would do about asking for union time. Bauccio said that "with this kind of answer you have to be careful not to interfere with the supervisor's responsibilities in his operations and you should ask for permission, like the contract says, and the supervisor can't be unreasonable but he does have a responsibility to fulfill obligations entrusted to him." On 26 July 1985 at approximately 3:45 p.m., Bauccio was again called by Adams, who said he was having a problem on his SCF belts. Vega was impeding his oper- ations. He explained that he was giving directions to his employees and Vega was countermanding them . Bauccio told Adams he would be up there to view the situation. As Bauccio passed by the work area on his way to see Adams, he saw Vega and three other employees on the culling belt on the SCF rings; Vega was talking very loudly and the'three employees were looking at him and not doing their work. When he neared the desk he heard Vega say, "[T]his guy'-likes to harass people." When Bauccio got to the desk he asked Adams to bring Vega over. When Vega arrived, Bauccio asked Adams what the problem was. Adams said he told Vega to stop impeding his operations, to stop countermanding his instructions, and to stop telling the employees that they should not accept "this harassment ." Bauccio then asked Vega if that was true. Vega did not answer that question, but said, "all you people do is harass people, these people are oppressed; they don't need to be stood over." As Vega continued to complain about harassment his voice got progressively louder and louder. Adams turned around and told him to calm down and lower his voice. Adams gave that instruction three times, and each time Vega kept talking, getting louder, and waving his arms toward the culling belt. At this point, the people on the culling belt were watching the action and it was not being oper- ated at full tilt. Bauccio ,was facing the belt about 7 to 10 feet distant from it. After the third time Adams asked him to quiet down, and Vega got louder, Bauccio told "him it seems to me that you do not like to follow in- structions so you can end your tour and leave." Vega said something like "this is unfair," got his badge, and left. Vega was given administrative leave for the balance of the tour pending discipline. On the form Bauccio filled out he commented "failure to'follow instructions." Bauccio went back to his office and pulled Vega's per- sonnel folder kept in the tour office . Adams came down within 10 minutes and Bauccio said he wanted Adams' input on discipline. They then proceeded to look through Vega's folder and found that he had enough corrective actions , past disciplinary actions, to warrant a removal. Bauccio wrote out a statement on what oc- curred and asked Adams to do the same. Bauccio then called his boss, Distribution Manager Tom Rosati, whose approval was required in the case of any severe person- nel action. Rosati concurred in Bauccio's evaluation that a letter of removal , be issued but that labor , relations should be contacted as soon as possible. On the following Monday, ,29 July , Bauccio contacted labor relations and also received the concurrence of Sec- 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion Center Director John Lunghi, Rosati's supervisor, in the disciplinary action. According to Bauccio, at no time prior to 26 July or on 26 July did he have any discussion with Joseph Moder, the tour superintendent then on vacation, about discipline for Vega or the incident that occurred with Vega. On 26 July 1985 Bauccio was not aware that Vega had filed an unfair labor practice charge. As Bauccio ex- plained, the reason elements of Vega's past record were placed in the 2 August notice of removal was that, by the contract, disciplinary action is both corrective and progressive. Any current discipline, if progressive and more severe, should rely on past corrective action. On cross-examination, Bauccio acknowledged that he chose to deal with the incident of Vega's interference with operations on 2,6 July at Adams' desk on the work floor rather than in his office as he had done with the Fitzgerald incident on 24 July because it was an oper- ational matter and not a union matter, even though the result was that Vega's raising of his voice in the discus- sion had the effect of stopping operations on the SCF belts. Joseph Moder, tour superintendent for the shift start- ing at 3:30 p.m. to which Vega was assigned, had, from time to time, witnessed Vega yelling over the workroom floor to the supervisor that he wanted union time, even after entry of the November 1984 grievance settlement which was designed to deal with and resolve that prob- lem. Once, Vega was sent to see Moder to arrive at an un- derstanding that he would not ask for union time within the first half hour of the tour while the supervisor was handing out badges, making work assignments, and trying to get the operation started. On another occasion, early in 1985, when he learned Vega was not following the November 1984 understanding on requesting union time, Moder called Vega to his office to go over again what he was supposed to do to get union time. At those meetings, Vega was instructed again that when he wanted union time to go to the supervisor by his desk and treat him with respect, that he would expect the same back to the Union, and that he would pacifically tell the management official what it was he wanted, naming an employee or a specific item. Moder also observed Vega on several occasions after November 1984 telling another employee he did not have to comply with a supervisory order or that it was not part of his job bid, and spoke with Vega about these incidents. Modes was on vacation from Saturday, 20 July, through Friday, 26 July, and returned to work on Satur- day, 27 July. On 26 July he had no contact with any management personnel at the-Hicksville Post Office. On Saturday, 27 July, Moder learned that Vega had been sent home the prior day. Later in the shift Moder called Bauccio to learn more about the incident. At this point, Moder wanted to talk to Vega and he had him sent to his office. Moder wanted to discuss why Vega was sent home and to tell Vega about a letter he had just received from the NLRB. When shown General Counsel's Exhibit 4, a copy of the 18 July 1985 Regional Director's letter dismissing in part and deferring in part Vega's 4 June 1985 unfair labor practice charge, Moder could not iden- tify the document' as the one he saw that day, but he did affirm that they were similar in substance but not in the same form. In all probability, Moder had a copy of a condensed' analysis of the letter done by the Postal Serv- ice labor relations office. When Vega came in to Moder's office, they sat down and Moder asked Vega about the experience of the day before. He asked Vega to tell his side of the story con- cerning why he was sent home. Vega said he did not want to discuss it. Moder told him, "[Y]ou know that you could get either suspended or terminated for this type of action because it's based on past records." Vega still did not want to discuss it. Moder then asked Vega whether he had seen the copy of the NLRB decision or part of it and Vega said he had not. Moder asked wheth- er he would like to read it. Vega said he would. Moder gave it to him and he read the entire statement. At the end of that, Moder asked Vega what he felt about it and Vega stated that he really did not feel anything about it one way or the other. Moder started reading the one item that was at the top of the page and said, "[W]ell, don't you think ,that's favorable towards management." Vega said, "[Y]es and no." Moder went through three or four more items doing the same thing. Then when he got to the point in the paper where it discussed items which were not resolved,9 they did not discuss them at all. At this point, Moder asked Vega whether he felt that it, the problem they were having, was all over and Vega said, "[N]o, it, wasn't all over yet, its a long ways to go yet." Vega was then sent back to his work area. Moder denied stating during this conversation, "[I]t seems that you don't want to work here," or with re- spect to the unfair labor practice charge "that you might get fired for this." Moder reiterated that his reference in the conversation to the possibility of Vega being sus- pended or terminated was solely to what had happened the previous day. Moder also stated that he played no role in Vega's removal action or in the reduction of the action to a 14-day suspension. Neither did Moder ever tell anyone to discharge or discipline Vega because he 9 The Regional Director's letter of 18 July 1985, a copy or summary of which Vega had just read and Moder and Vega were then discussing, first disposes of Vega's allegations that the Postal Service harassed and disciplined him by refusing to grant hun paid leave, forbidding employees to speak to him, refusing to allow employees to telephone him at work, transferring him to a less desirable work classification, and issuing him a warning and notice of removal in violation of Sec. 8 (a)(l) and (3) of the Act. These allegations were all dismissed . The letter then presented rea- sons for the, dismissal in three successive paragraphs Following that, the Regional Director then disposed of all the remaining allegations, in which Vega asserted he was suspended on 17 December 1984, removed from the facility on 19 January 1985, suspended on 24 January, issued a 20 March warning, required: to obtain his supervisor's permission to use bathroom privileges on 21 March, required to leave the work area during breaktimes on 27 March, required to sit next to his supervisor 's desk since 27 March, required to submit written evidence to support leave requests on 12 April, and threatened with reprisal for his grievance filing activity and required to report his after work hours union activity to his supervi- sor on 13 April, in violation of Sec 8(a)(1) and (3) of the Act, by defer- ring them to the grievance process, where these allegations were present- ly pending as the subject of grievances, under Dubo Mfg. Corp, 142 NLRB 431 (1963). POSTAL SERVICE had filed an unfair labor practice charge or had engaged in union activities or filed grievances. I am prepared to credit Adams regarding his initial conversation with Vega on the evening of 24 July when he referred Vega to Bauccio on Vega's request for union time, particularly because Vega did not testify to or deny his refusal to provide Adams with the , nature of the grievance or the name of the grievant . I am inclined to and do credit Bauccio over Vega on his version of their discussion relating to the Fitzgerald matter later that evening. While Vega was generally soft spoken, deliber- ate, and responsive to questioning, his version omitted Fitzgerald's having been brought into the discussion and Fitzgerald's decision to,pursue his complaint alone with his supervisor, Adams. I credit Vega on his discussion with Bauccio regarding the Ross and Axen matter, par- ticularly because Bauccio did not deal with it in his testi- mony. But I also credit Bauccio concerning his efforts to impress on Vega the importance of properly seeking union time without disruption of the work area or inter- fering with supervisory responsibilities and providing su- pervision with enough information regarding the nature of the grievance and the identification of the grievant to enable it to make an intelligent decision on granting union time. This testimony did not conflict with Vega's, and Vega acknowledged that his manner of presenting problems had been the subject of past grievance discus- sions and complaints from supervision. I also credit Adams and Bauccio regarding the 26 July events involv- ing Vega. Vega's presentation was not in substantial dis- agreement with theirs, but, again, lacked the detail, co- herence, and verisimilitude which lends theirs weight and credibility. I also , found Bauccio, in particular, to be an effective witness, restrained in manner and disciplined, thoughtful, articulate, and judicious in his presentation. Regarding the Moder-Vega meeting on 27 July, on which their versions were diametrically opposed, I am not prepared to credit Vega that ..Moiler threatened him with discharge for having filed and pursued a charge under the Act. Vega testified the meeting lasted 20 min- utes, but was unable to supply any cogent details of the conversation and interchange other than the threat of discharge related by implication to the unfair labor prac- tice charge he had filed . Vega also insisted that he had. no conversation at all with ' Moder, and that he said hardly anything during their time together. His version was also somewhat ambiguous and confusing. Moder's testimony on the other hand was'much clearer and more comprehensive. It also was consistent with a concern he would have had and expressed as Vega's regular tour su- perintendent concerning Vega's having been sent home the day before, a matter which Vega did not acknowl- edge was discussed at all between them., I am prepared to find that in all probability Model did make reference to the 19 November 1984 grievance settlement agree- ment in which Vega agreed to moderate his behavior as steward in seeking union time to investigate or present grievances as Vega swore he did, but not in reference to the charge as the General Counsel urges. That'reference would have been related by Moder to Vega's continuing a disruptive pattern in ` complaining about supervisory and management conduct in spite of his agreement the 693 prior November to change his ways. Furthermore, it is unlikely ,that Moder would have taken the opportunity to threaten Vega with reprisals at a time when Vega's charge had been dismissed , and otherwise deferred and the Postal Service had been successful in its defenses to the charge. Moder's priority of concern, dealing first with Vega's conduct of the prior day and then with the disposition of the charge, had the ring of truth, as did Moder's admissions against interest, which skirted but did not rise to the level of interference, that in his curios- ity and concern about their relationship he sought to obtain Vegas views concerning whether the disposition of the allegations were unfavorable to Vega and the Union and would help resolve the problems between them on the job. C. Analysis and Conclusions Respondent argues, in conformity with its affirmative defense, that the complaint should have been deferred to the grievance-arbitration procedure of its National Agreement with the Union. Respondent recognizes that under International Harvester Co., 271 NLRB 647 (1984), the Board reaffirmed its long-held view that it will not defer 8(a)(4) allegations because the resolution of ques- tions concerning access to Board processes has always been held to be solely within the Board's province to decide. Respondent nonetheless urges that when the 8(a)(4) allegation is not "closely intertwined" with' the 8(a)(3) allegation, and particularly when the 8(a)(4) alle- gation is shown ultimately to lack merit, indeed to have been fictitious, the Charging Party should not be allowed to have two bites of the apple by litigating his charge both' before the Board and an arbitrator under the Na- tional Agreement. In both International 'Harvester Co., supra, and Road- way Express, 274 NLRB 357 (1985), affirming without comment the administrative law judge's conclusions and adopting his recommended Order , the Board has adopted the principle that it will not defer, among other allega- tions, 8(a)(3) and '(1) allegations cognizable under the grievance-arbitration provisions of applicable collective- bargaining agreements, otherwise deferrable under its United Technologies Corp., 268 NLRB 557 (1984), hold- ing, when the alleged violations of Section 8(a)(3) and (1) are "closely intertwined" with the allegations involv- ing Section 8(a)(4). Respondent argues that the 8(a)(3) and (4) allegations are not closely intertwined. I con- clude, to the contrary, that they are. Respondent goes to great lengths to insulate Moder from the incidents which gave rise to the 8(a)(3) allegation, but the meeting at which the 8(a)(4) conduct allegedly took place arose, ad- mittedly, in part, to inquire into the alleged 8(a)(3) inci- dent the prior day. Also, the General Counsel contends, (but fails to prove) that Adams and Bauccio knew of Vega's, charge-filing activity and that this knowledge played a part in their motivation to initially remove him. Furthermore, while the 8(a)(3) issue appears on the sur- face to be cognizable under the agreement, under section 17.1 and the November 1984 grievance settlement agree- ment, Respondent's case is essentially , that Vega exceed- ed the bounds of protected activity through his disrup- 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the workplace. This is a basic Section 7 question which lends itself far better' to Board determination than to an arbitrator's ruling, particularly when, as here, a hearing on all the alleged violations has already been held. International Harvester Co., supra. As to Respondent's fear that Vega may be able to pursue his claims in two forums and that this may lead to inconsistent results, those are distinct possibilities, but they are insufficient grounds for the Board, under the circumstances of this case and the record already made, to refrain from determining, itself, the rights of the par- ties and of the public under the Act in this case. Accordingly, having determined this threshold issue (see L E. Myers Co., 270 NLRB 1010 fn. 2 (1984)), I turn now to a consideration of the case on the merits. Concerning the 84aX4) allegation, I have found, as a matter of credibility, that Moder made no threat to Vega related to Vega's having filed his'unfair labor practice charge or given testimony under the Act. While Moder questioned Vega, apparently at length, on 27 July con- cerning his opinion about the outcome of the Region's investigation of the charge and its bearing on their future relationship, these inquiries and comments do not consti- tute threats of reprisal or even show hostility for Vega's having made use of the Board's processes and the Gener- al Counsel does not claim that they do, absent Moder's allegedly related threat of discharge. Furthermore, evi- dence is lacking that Moder played any role in Vega's discipline apart from his receiving information about it from Bauccio' on 27 July. Thus, even if he had uttered a threat under Section 8(a)(1), a conclusion I reject, the General Counsel has failed to show that Moder's alleged illegal motives had any bearing on the discipline Adams and Bauccio determined to impose against Vega on 26 July 1985, the day before the alleged threat. The General Counsel's further reliance on alleged knowledge by Adams and Bauccio of Vega's charge and his pursuit of claims under the Act also fails for lack of probative evidence. Both Adams and Bauccio credibly denied such knowledge at the time they determined to remove Vega for his conduct on 26 July and prior histo- ry of infractions. Also there is no evidence by any con- duct or statement that either of them was motivated by Vega's charge in determining to discipline him. Thus, I am constrained to recommend that the 8(a)(4) allegation and the 8(aXl) allegation of a threat by Moder because of Vega's filing and pursuit of charges under the Act be dismissed. The 8(a)(3) and (1) allegation and 8(a)(1) allegation re- lated to Moder's threat made because of Vega's 26 July conduct present a separate issue to which I now turn. As a preliminary matter, the issue is posed as to whether Vega was acting in his capacity as steward when the incident arose on 26 July. I conclude that he was. Vega was disciplined because he failed to lower his voice as directed while speaking with Adams and Bauc-- cio and thus disrupted operations. This conversation stemmed from Vega's allegation that Adams was harass- ing employees. Under the agreement a steward has the right to initiate an independent grievance at step 1 (see sec. 15.2(a)) and surely Adams' directions to employees to work faster were imposing a set of working conditions on the employees affected that was encompassed within the definition of a grievance under section 15.1. I con- clude that Vega was grieving the perceived harassment of employees on the part of Adams. The fundamental issue is thus posed as to whether, in pressing the grievance with Adams and Bauccio, Vega exceeded the bounds of protected activity under the Act, thereby permitting the supervisors to discipline him with- out restraint. In considering this issue, the immediate antecedents to the confrontation cannot be ignored. Vega, in a repeat of past behavior, voiced an immediate complaint against his supervisor's conduct at the workplace, conduct which Adams could reasonably conclude countermanded his orders to employees or at least raised a question in their minds whether to obey him. In doing so, Vega also failed to comply with a series of past instructions and a written understanding as to the manner in which he would invoke steward's grievance rights under the agreement. In calling Vega to his desk, Adams sought again to moderate Vega's behavior, not to interfere with his right to properly invoke the grievance process. Vega's only response was to repeat his claims of harass- ment. When Adams saw he could not influence Vega's behavior, which was interfering with his own superviso- ry responsibilities, he brought his supervisor, Bauccio, into the picture. Bauccio had every right to deal with the problem on the work floor. Contrary to the General Counsel, and as asserted by Bauccio on the record, the incident was re- lated to operations and Respondent cannot legitimately be held responsible for Vega's subsequent conduct inter- fering with production. When Bauccio sought Vega's version of the incident, he continued to assert his claim of harassment, failed to respond to the inquiry, and became increasingly obstrep- erous to the point where he repeatedly ignored direc- tions to lower his voice. This behavior had the effect of interfering with employee work duties to the extent that they worked at a slower pace, or stopped work altogeth- er to view the scene at Adams' desk. It is significant that as against Adams' and Bauccio's testimony of the disrup- tion of the operation, the General Counsel failed to call any employees to rebut these assertions. They stand un- contested and, although it may not have resulted in a sig- nificant interference with operations, Vega's repeated re- fusal to follow directions under all the circumstances, in- cluding its impact or the work environment, and the pains Respondent had previously taken to correct Vega's past conduct of a similar nature,' ° not attacked by the 10 Contrary to Respondent, I do not find that the November 1984 grievance settlement constitutes a waiver by the Union of Vega's right as steward to contest Respondent's discipline of him. Vega was disciplined for failing to follow directions and lower his voice. The November agreement set a standard of conduct for requesting grievance time There is a lack of clear and convincing proof that the Union waived Vega's right as steward to defend his assertion of rights under the agreement. Nevertheless, the wording of that agreement generally bound Vega to conduct himself in a restrained and obedient manner, and therefore relat- ed to his antecedent behavior in objecting to Adams' directions at the workplace as well as to his failure to follow instructions to calm down during the interchange at Adams' desk. Accordingly, I have accorded the grievance settlement a proportionate weight in evaluating Vega's conduct under the Act. POSTAL SERVICE, General Counsel, including Bauccio's advice to`him; on 24 July, warranted Respondent in taking the action it did. As stated by the Board in a case very similar on its facts to the instant one: The Board recognizes the right of the employer to maintain order and respect in the conduct of its business. [Southwestern Bell Telephone Co., 260 NLRB 237 (1982).] Winn's derogation 'of a reasona- ble order to quiet down by continuing to shout on the work floor, hurling personal insults, and disrupt- ing operations constituted unprotected activity and gave the Respondent a legitmate, permissible reason to discipline Winn, and we so find. We further fmd- that the Respondent has met its burden to prove that it would have issued the warning to Winn even in the absence of his protected conduct. The record shows that Winn had been disciplined at least five times in the 2-year period preceding the warning in issue here, and that those instances of discipline re- lated to conduct akin to that shown in the instant case. Postal Service, 268 NLRB 274, 275-276 (1983). The Board found there that 'Winn was not engaged in the formal pursuit of a grievance when he was disci- plined. Rather, Winn reacted with insubordination when his request to have his timecard adjusted was refused. Here, Vega disobeyed repeated directions to calm down before he was sent home, conduct which mirrored re- peated past failures to follow directions, as a result of which he had incurred progressively stiffer penalties. Neither of the two cases cited by the General Counsel at page 9 of her brief presents a similar factual t setting in which the employee's conduct, independent of his Sec- tion 7 conduct, was 'sufficiently insubordinate or disrup- tive of the workplace to warrant concluding that it inter- fered with the employer's right to, maintain 'order and re- spect in the conduct of its business. Postal Service, 252 NLRB 624 (1980), contrary to the instant case, involved a supervisor's attempt to prevent a union steward from performing her official duties. The steward's reaction was restrained, did not exceed "acceptable bounds," and 695 involved -neither a refusal to work,- nor a disruption of work production, and it was provoked by the supervi- sor's unwarranted, interference with the steward's pro- tected right to investigate a grievance. In Postal Service, 250 NLRB 4 (1980), unlike the situation here, the union steward had received supervisory permission to discuss an employee's potential grievance, and was engaged in its formal investigation as steward when he uttered a single, spontaneous, obscene remark, provoked at least in part by the failure of the 'supervisor with' whom the steward was speaking to provide an immediate and direct answer to his inquiries. Accordingly, although I conclude that the General Counsel initially established a prima facie case, I also conclude that Respondent has met its requisite burden of proof by showing it had a legitimate, permissible reason for disciplining Vega and for threatening to take such action against him and that it would have done so in the absence-of Vega's protected activity. - - I shall therefore recommend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. The Board has jurisdiction over the subject matter of the complaint by virtue of Section 1209 of the Postal Reorganization , Act, 29 U.S.C. § 151 'et seq. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. - 3. The General Counsel has not established by a pre- ponderance of the evidence that Respondent has 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- ed" ORDER The complaint, is dismissed., i i 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'