United States Gypsum

4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United States Gypsum and International Union of Electrical Radio and Machine Workers, AFL- CIO-CLC and its Local 727. Cases 8-CA- 14365, 8-CA-14578, 8-CA-14869, 8-CA- 15043, 8-CA-15043-2, 8-CA-15043-3, 8-CA- 15043-4, and 8-CA-15502 29 May 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 22 May 1984 Administrative Law Judge Richard L. Denison issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs and the Respond- ent tiled briefs in opposition. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, 2 subject to the following qualifica- tions, and to adopt the recommended Order as modified. In adopting the judge's reinstatement of the set- tlement agreement in Cases 8-CA-14365, 8-CA- 14578, 8-CA-14869, 8-CA-15043, and 8-CA- 15043-2, we do not rely on his conclusion that the concept of sua sponte reconsideration is completely outside the scope of Section 102.19(c) of the Board's Rules and Regulations. Our decision here only affirms the judge's finding that the General Counsel acted inappropriately in the circumstances of this case. More specifically, for reasons the judge sets out, we agree that the various grounds urged for setting aside the agreement (i.e., the al- leged mistake in entering the agreement and the al- leged unfair labor practices after the agreement) The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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. 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings. The Charging Party contends that the judge's conduct at the hearing, interpretation of the evidence, and credibility findings showed bias and prejudice against the Charging Party. Upon examination of the judge's decision and the entire record, we are satisfied that the contentions of the Charging Party in this regard are without merit 2 In agreeing with the judge, however, Members Babson and Stephens specifically disavow reliance on the judge's comments at sec VI, pars. 2 and 3, and the accompanying fn. 19, in which he criticizes the General Counsel's alleging these discharges to be unlawful in light of the position the General Counsel took on these dischargees in certain settled unfair labor practice cases against the Union. See Markle Mfg., 239 NLRB 1142, 1151-1152 (1979), which is contrary to the judge's comments on the effect of these settled cases on the later unfair labor practice allegations in this case have no merit on the particular facts of this case. In so concluding, we add the following comments. The amended consolidated complaint alleges, inter alia, that the Respondent violated Section 8(a)(5) and (1) of the Act in that about 1 July 1981 it unilaterally changed the lunch and break periods of its unit employees. In his decision the judge con- cluded that the Respondent had fulfilled its bar- gaining obligation on this issue and was thus enti- tled to act as it did by instituting the lunch and break period change. Contrary to the judge, we find that this issue is squarely governed by Holly- wood Roosevelt Hotel Co., 235 NLRB 1397 (1978), and that the General Counsel should never have permitted this charge to survive. In Hollywood Roosevelt Hotel, the Board held that a settlement agreement disposes of all issues involv- ing presettlement conduct unless prior violations of the Act were unknown to the General Counsel, not readily discoverable by investigation, or specifical- ly reserved from the settlement by the mutual un- derstanding of the parties. The Board further held that the mere fact that a charge is filed after a set- tlement agreement has been negotiated does not ipso facto establish that the General Counsel was unaware of the alleged misconduct. In this case the charge alleging that the Respondent unilaterally changed lunch and break periods was filed on 23 October 1981. The settlement agreement was exe- cuted on 27 November 1981. Thus, although this charge was not specifically addressed by the settle- ment agreement, it is clear that both the General Counsel and the Charging Party had knowledge of these allegations at the time the agreement was ex- ecuted. In addition, there is no evidence that the change in lunch and break periods comes within any of the exceptions to the general rule that a set- tlement agreement with which the parties have complied bars subsequent litigation of presettlement conduct alleged to constitute unfair labor practices. In these circumstances, we conclude that Case 8- CA-15043-3 was encompassed by the settlement, and therefore we do not reach the merits of this al- legation. 'This conclusion, however, does not affect the ultimate disposition of this case. The judge further found that the General Coun- sel failed to establish a prima facie case of discrimi- nation with regard to the discharges of employees Bankston, Crews, Everett, and McConnell. The Charging Party has excepted to this finding. As- suming that the General Counsel did establish a prima facie case, we agree with the judge, that at the time of the discharges, and at all times material, the Respondent had an honest belief that each of these employees engaged in serious strike miscon- duct. We also agree with the judge that the Charg- 284 NLRB No. 2 U. S GYPSUM 5 ing Party and the General Counsel failed to carry the burden that then shifted back to them-the burden of showing that the employees did not in fact engage in such misconduct. Accordingly, we adopt the judge's finding that the Respondent did not violate Section 8(a)(3) and (1) by discharging these employees. Rubin Bras Footwear, 99 NLRB 610, 611 (1952). ORDER The recommended Order of the administrative law judge is adopted, the complaint in Cases 8- CA-15043--3, 8-CA-15043-4, and 8-CA-15502 is dismissed and the settlement agreement in Cases 8- CA-14365, 8-CA-14578, 8-CA-14869, 8-CA- 15043, and 8-CA-15043-2 is reinstated. Kathy A. Wireman and Frank D. Motil Esqs., for the General Counsel. John A. McDonald and Thomas G. Cline, Esqs. (Keck, Mahin & Cate), of Chicago, Illinois, for the Respond- ent. Richard F. Rice, Esq., of Kettering, Ohio, for the Charg- ing Party. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This case was heard at Youngstown, Ohio, on July 26, August 31, September 1, and November 15-18, 1982; and January 10-13, 1983. The initial charge in the series com- prising this matter, Case 8-CA-14365, filed November 5, 1980, alleged violations of Section 8(a)(1) and (5) of the Act. Subsequent charges alleged further violations of Section 8(a)(1), (3), and (5) of the Act.' The amended consolidated complaint, as further amended at the hear- ing, basically alleges that the Respondent engaged in sur- face bargaining with the Charging Party, including a number of specific acts of interrogation and alleged bad- faith bargaining, which conduct allegedly caused and/or prolonged an unfair labor practice strike of Respondent's bargaining unit employees. At the conclusion of the strike the Respondent allegedly unlawfully declined to reinstate a large number of replaced strikers, and dis- charged four striking employees, allegedly for strike mis- conduct. The Respondent's answer, as amended, denies the alle- gations of unfair labor practices alleged in the complaint. On the record in the case, including my consideration of the briefs and observation of the witnesses, I make the following 1 The filing dates and substance of these charges are detailed in sec IV of this decision. FINDINGS OF FACT I. JURISDICTION Based on the allegations of paragraphs 2 and 3 of the amended consolidated complaint, as amended, admitted by paragraphs 2 and 3 of the answer, I find that the Re- spondent is, and has been at all times material, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. IL LABOR ORGANIZATION Based on the allegations of paragraph 4 of the amend- ed consolidated complaint, as amended, admitted by paragraph 4 of the answer, I fmd that the Charging Party Uni9ns are each labor organizations within the meaning of Section 2(5) of the Act. III. INTRODUCTION The Respondent is a large Delaware corporation with plants in various States of the United States. At Warren, Ohio, the only plant involved in this proceeding, the Company is engaged in the manufacture and distribution of building materials and expanded metal products. The Respondent and the Charging Party have had a continu- ous collective-bargaining relationship covering the Warren production and maintenance employees since the Unions' certification on November 16, 1964. 2 The most recent contract was in effect from November 1, 1978, until October 31, 1980. By letter dated August 1, 1980, addressed to Works Manager John H. Daugherty, Pat- rick Kearney, the Unions' International representative for servicing the Warren contract, notified the Company, as required by Section 8(d), of the Unions' intent to ne- gotiate a new labor agreement. Kearney requested the commencement of negotiations at any time after August 31, 1980. Likewise on August 1, 1980, the Unions sent the required 60-day notice to the Federal Mediation and Conciliation Service. Negotiations began on September 24, 1980. Kearney and Daugherty were the principal spokesmen for their respective sides. Kearney testified that his prior relationship with the Company had been fairly smooth, and that the 1978 negotiations had taken only five meetings to arrive at an agreement. The 1980 negotiations, however, continued for 17 bargaining ses- sions between September 24, 1980, and January 21, 1982. Twelve of those meetings occurred before the strike that began at 11:30 a.m., June 3, 1981. During the strike the Company replaced the striking employees. The strike ended when the Unions made an unconditional offer to return to work December 8, 1981. 2 The collective-bargaining unit is All production and mamtenance employees at the Warren, Ohio plant, excluding all office clerical employees, guards, professional employees, the Works Manager, superintendents, foremen, head ma- chinist, head mechanics and all other supervisors as defined in the Act. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IV. THE GENERAL COUNSEL'S RECISION OF THE SETTLEMENT AGREEMENT It is necessary to the proper analysis of the events sur- rounding the General Counsel's action with respect to the unilateral settlement agreement approved by Region- al Director Bernard Levine on November 22, 1981, and the proper application of the law to these events, that the relevant circumstances be set forth chronologically in considerable detail. Thus, as early as November 5, 1980, the Unions filed the initial charge in this series, Case 8-CA-14365, alleg- ing violations of Section 8(a)(1) and (5) of the Act, in that "since on or about October 6, 1980, and at all times thereafter [the Company] has refused to bargain collec- tively with [the Union] in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment by refusing to supply upon. . . request. . . job descriptions of all classifications covered by the col- lective-bargaining agreement." This charge also con- tained a specific 8(a)(1) allegation relating to alleged con- duct by the Employer's representatives in October 1980. On January 29, 1981, the Unions filed a charge in Case 8-CA-14578, another 8(a)(1) and (5) charge, alleging that on and after December 5, 1980, the Company re- fused to bargain with the Unions by "changing the pro- cedure of permitting a representative of the local union to collect union dues in the plant, by altering the griev- ance procedure, by refusing to permit the Unions to post notices on its bulletin board, and by refusing to permit a representative of Local 727 to collect dues from mem- bers of the Union in a non-working area of the plant." On February 27, 1981, the Regional Director issued a complaint in Cases 8-CA-14365 and 8-CA-14578, alleg- ing violations of Section 8(a)(1) and (5) of the Act. The complaint alleged that during October 1980, Supervisor Edward Booth interrogated employees, solicited griev- ances from them, and/or impliedly promised them un- specified benefits in violation of Section 8(a)(1); and that since about December 11, 1980, the Company had made the unilateral changes referred to by the Unions in Case 8-CA-14578, as set forth above. On March 6, 1981, the Regional Director dismissed Case 8-RM-832, in which the Company had pursued its expressed doubt of the Unions' majority status, and, as a result of that action, beginning about March 8, 1981, dues collection, bulletin board use, and grievance proc- essing was once again resumed in accordance with the provisions of the expired contract. These procedures re- sumed while the Employer's request for review of Case 8-RM-832, denied by the Board on April 27, 1981, was still pending. On May 21, 1981, the Unions filed a charge in Case 8- CA-l4869, another 8(a)(1) and (5) charge, alleging that since about May 12, 1981, the Company refused to bar- gain with the Unions by failing and refusing to agree to unconditionally recognize the Unions, and by failing and refusing to agree to an unconditional recognition clause. On July 24, 1981, the Union filed a charge in Case 8- CA-l5043, an 8(a)(1) charge, alleging that, since about July 17, 1981, company supervisors solicited employees to return to work from the strike by promising them ben- efits and by photographing employees engaged in lawful picketing. On September 14, 1981, the Unions filed a charge in Case 8-CA-15043-2, a further 8(a)(1) and (5) charge, al- leging "At all times material and particularly, since June 3, 1981 [the Company] has refused to bargain collective- ly with the Unions. . . in that it has refused to confer in good faith with the above-named labor organizations for a new collective-bargaining agreement." Thus, as early as September 14, 1981, the Regional Office had before it an overall bad-faith bargaining charge, which specifically required it, as a part of the Regional Office's investiga- tive process, to inquire in detail into every aspect of the bargaining between the Company and the Unions. Nev- ertheless, although an extensive investigation of this and all other charges filed by the Unions was conducted, no complaint alleging a lack of intention to reach an agree- ment in bargaining, otherwise known as overall bad-faith bargaining or "surface" bargaining, was issued prior to the settlement of this matter, as discussed hereafter. On September 22, 1981, the Regional Director issued an order consolidating cases, second amended consolidat- ed complaint, and notice of consolidated hearing in Cases 8-CA-14365, 8-CA-14578, 8-CA-14869, and 8-CA- 15043. In addition to reiterating the allegations of the previous complaint, this document added, additional 8(a)(1) allegations concerning alleged conduct by Super- visors James Sylvester and Donald C. Eschler in June, July, and August 1981, by allegedly soliciting striking employees to return to work by promises of benefits and threats of loss of employment. The complaint also added a specific 8(a)(5) allegation to the effect that the Compa- ny unlawfully bargained to impasse about May 20, 1981, concerning its proposed recognition clause conditioned on the continued certification of the Unions as collective- bargaining agent, notwithstanding the fact that on March 6, 1981, the Regional Director had dismissed Case 8- RM-832. On October 23, 1981, the Unions filed a charge in Case 8-CA-15043-3, an 8(a)(1), (3), and (5) charge, al- leging that since about July 1, 1981, the Company re- fused to bargain with the Unions by unilaterally chang- ing the lunch period and break periods of its employees. The charge also contained the specific allegation that "since on or 'about June 3, 1981 . . . the employees have engaged in a strike . . . caused and prolonged by the employer's commission of unfair labor practices." Thus, it is clear that, at least by this point, the Unions were claiming that the June 3 strike was an unfair labor prac- tice strike. Meanwhile, during the period June through October 1981, the Company had filed a series of charges against the Unions claiming strike misconduct by agents of the Unions. On November 13, 1981, the Regional Director issued a second amended consolidated complaint in Cases 8-CB-4497, 8-CB-4547, and 8-CB-4497-4, which con- tamed 31 separate allegations of alleged strike miscon- duct by agents of the Unions, including Local 727 Vice President David Everett and striking employee-pickets Walter McConnell, John Bankston, and Wally Crews. U.S. GYPSUM 7 These cases were subsequently settled unilaterally despite the Company's objection. On November 27, 1981, Regional Director Levine ap- proved a unilateral settlement agreement in Cases 8-CA- 14365, 8-CA-14578, 8-CA-14869, 8-CA-15043, and 8- CA.-15043-2 (the overall bad-faith bargaining charge), over the Unions' objections. The parties were notified of his action by a letter dated November 30, 1981. The Unions appealed the Regional Director's approval of the settlement agreement to the General Counsel as provided in Sections 101.9(c)(2) and 102.19(c) of the National Labor Relations Board's Rules and Regulations. On December 7, 1981, picketing ceased, and on De- cember 8, 1981, by letter, the Unions unconditionally of- fered to return to work immediately On December 9, 1981, the Company sent a telegram to the Unions and the affected employees stating that David Everett, Walter McConnell, John Bankston, and Wally Crews had been discharged for strike misconduct. On December 16, 1981, the Unions filed a charge in Case 8- CA-15043-4, alleging that the Company violated Section 8(a)(1) and (3) of the Act by refusing to reinstate imme- diately the alleged unfair labor practice strikers, and by discharging Everett, McConnell, Bankston, and Crews. On December 23, 1981, the Unions appealed the approv- al of the settlement. On December 31, 1981, the Regional Director issued a separate complaint and notice of hearing in Case 8-CA- 15043-3, alleging that the Employer violated Section 8(a)(1) and (5) of the Act in July 1981, by extending the shift hours of employees who were working during the strike without prior notice to or bargaining with the Unions. On January 20, 1982, the Unions' appeal of the settle- ment was denied on behalf of the General Counsel in a letter from the Acting Director of the Office of Appeals, which states, in relevant part, "Under all the circum- stances and noting that the Regional Director has not, at this time, determined that the strike engaged in by the employees prior to the approval of the settlement agree- ment was an unfair labor practice strike, it was conclud- ed that the settlement agreement and notice provides a complete remedy for the violations for which relief could be achieved by going to trial; thus, the undertak- ings contained therein effectuate the purposes and poli- cies of the Act." Thus, the Office of the General Counsel was fully aware of the existence of the strike issue at the time the appeal was denied, and acted in the light of that knowledge. Over a month later, on February 22, 1982, the General Counsel, by letter signed by the Acting Director of the Office of Appeals, rescinded his decision of January 20. The letter stated, "We have reconsidered sua sponte our January 20, 1982, decision denying your appeal in the above matters and have concluded that our decision was erroneous, since there had been no determination made prior to the Regional Director's approval of the settle- ment agreement resolving the status of the employees who allegedly struck in protest of the unfair labor prac- tices that were settled. Accordingly, our prior decision is rescinded, your appeal is sustained, and the case is re- manded to the Regional Director for such determination and inclusion in any settlement agreement for provisions for reinstatement of the strikers if it is determined they are ULP strikers." On February 4, 1982, the Unions filed a charge in Case 8-CA-15502, an 8(a)(1) and (3) charge, alleging that since about November 27, 1981, the Respondent refused to return Virgil Galbincea to work from sick leave be- cause of his membership in and activities on behalf of the Unions. On March 26, 1982, the Acting Regional Director issued an order consolidating cases, amended consolidat- ed complaint, and notice of consolidated hearing in Cases 8-CA-14365, 8-CA-14578, 8-CA-14869, 8-CA-15043, 8-CA-15043-2, 8-CA-15043-3, 8-CA-15043-4, and 8- CA-15502, alleging violations of Section 8(a)(1), (3), and (5) of the Act. In addition to repeating the unfair labor practice allegations in previous complaints, this docu- ment alleges limited specific violations of Section 8(a)(1) and (5), which allegedly occurred at the bargaining table during the period covered by the settlement agreement. Thus, the complaint alleged that the Respondent's chief negotiator impliedly threatened employees to refuse to bargain with the Unions about April 21, 1981, and on August 5, 1981, rejected the Unions' written proposal without either reading or reviewing it. The amended consolidated complaint also recites certain circumstances surrounding Regional Director Levine's approval of the settlement, its appeal by the Unions, the denial of that appeal by the General Counsel, and his subsequent sua sponte abrogation of the settlement commitment. Finally, the amended consolidated complaint alleges for the first time that the strike of Respondent's unit employees was caused by and/or prolonged by the unfair labor practices of the Respondent, recites the names of the replaced strikers who allegedly unconditionally offered to return to work, together with those who allegedly were refused reinstatement about December 9, 1981, and alleges that John Bankston, Wally Crews, David Everett, and Walter McConnell were discriminatorily discharged about De- cember 9, 1981, in violation of Section 8(a)(1) and (3) of the Act. At the outset of the trial of this matter on July 26, 1982, approximately a year and a half after the issuance of the first of a series of 8(a)(5) complaints, the General Counsel revealed for the first time an intention to add a specific surface bargaining allegation to the complaint, and amended the complaint accordingly. Counsel for Re- spondent, having strenuously objected to the amendment, moved for a continuance on the grounds that the amend- ment greatly increased the scope of his necessary trial preparation, which was further exacerbated by the Gen- eral Counsel's having withdrawn, immediately before the hearing, from 10 stipulations that would have rendered certain additional trial preparation unnecessary. The General Counsel objected to the granting of a continu- ance. The General Counsel conceded that the charge in Case 8-CA-15043-2, a charge filed September 14, 1981, and included within the scope of the settlement agree- 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment, was a surface bargaining charge. 3 Against this backdrop, the General Counsel then made the rather re- markable statement that it was not until July 23, 1982, the Friday afternoon before the commencement of the hearing, that he first discovered the Respondent had been engaging in surface bargaining. The Respondent's motion for a continuance was granted. During the interim period, on August 10, 1982, coun- sel for the Respondent filed a written motion to dismiss paragraph 23(d) of the amended consolidated complaint, the surface bargaining amendment. The ground advanced for this motion was that the charge in Case 8-CA- 15043-2, as the only charge that specifically alleges sur- face bargaining, was filed on September 14, 1981, and the General Counsel's amendment, counsel for Respond- ent argued, accuses the Company of bad-faith bargaining beyond the 6-month statute of limitations period pre- scribed in Section 10(b) of the Act by including bargain- ing conduct approximately 6 months beyond March 14, 1981. On the resumption of the hearing on August 31, 1982, I heard opening statements from each of the parties. The General Counsel's opening statement chronologically outlined most of the significant events that had occurred in this consolidated proceeding, including those de- scribed above. In his presentation, the General Counsel discussed at length the circumstances leading to the ac- ceptance of the settlement agreement, which she stated covered all cases up through the surface bargaining charge, Case 8-CA-15043-2. 4 Accordingly, the remain- ing postsettlement issues are contained in Cases 8-CA- 15043-3, 8-CA-15043-4, and 8-CA-15502 (i.e„ the al- leged change in the lunch period and breaks, the dis- charge of the four striking employees for alleged strike misconduct, and the subsidiary issue of whether the Re- spondent unlawfully refused to return the replaced strik- ers to work as unfair labor practice strikers following the strike. 5 Following the Charging Party's opening state- ment in support of the General Counsel's position, the Respondent moved to dismiss all complaint allegations preceding the settlement. I then heard oral argument on this motion and the Respondent's August 10 written motion to dismiss the surface bargaining amendment. At the conclusion of oral argument, I deferred ruling on these motions until all the evidence had been heard on the alleged change in the lunch period and breaks and the discharge of the four employee strikers, because the outcome of those issues would determine whether post- settlement unfair labor practices existed that would justi- fy the setting aside of the settlement agreement, and the dependent issue of whether the replaced strikers should have been returned to work as unfair labor practice strik- ers. 3 Indeed, Union Representative Patrick Kearney testified that when he filed the charge in Case 8-CA-15043-2 he understood he was filing a surface bargaining charge 4 Tr 57-58 5 The charge in Case 8-CA-15502 concerning Virgil Galbincea, al- though filed separately, falls within the last of these three categories. The only reference to Galbincea in the complaint is that his name appears among the list of replaced strikers who were not returned to work No evidence concerning Galbmcea's particular circumstances was presented during the entire course of the hearing In a response to a question by counsel for the Charg- ing Party, I stated that following the presentation of all the evidence on the two alleged postsettlement unfair labor practices, I would consider the likelihood of the existence of postsettlement violations, and rule concern- ing whether the posture of the case warranted proceed- ing to hearing the vast amount of evidence remaining on the presettlement issues, or whether to adjourn the hear- ing for briefs before ruling on the postsettlement portion or issuing a decision on that portion, thereby possibly rendering further proceedings unnecessary. 6 The Gener- al Counsel objected to this proposed procedure and moved to be permitted to make a witness-by-witness offer of proof detailing the entire presettlement case. I denied the motion as an effort to circumvent the proce- dure I had announced I intended to follow in order to economically and expeditiously determine the probable merit of the threshold issues. Subsequently, before the taking of testimony concerning all the presettlement issues could be completed, on September 23, 1982, the General Counsel filed with the Board a request for spe- cial permission to appeal, interim appeal, and memoran- dum in support of interim appeal. In that document the General Counsel represented to the Board, inter alia, that I had refused to hear the General Counsel's evidence concerning the issues covered by the settlement agree- ment. The General Counsel asked the Board to reverse the ruling she claimed that I had made, and to direct me to hear and admit all evidence pertaining to both presett- lenient and postsettlement conduct or, in the alternative, direct me to accept "any offers of proof as to the evi- 6 The procedure that I invoked is a commonly utilized method, ap- proved by the Board, of eliminating possible unnecessary costs and delay by first determining the probable merit of the essential elements of the case One such example is to be found in Tappan Co, 254 NLRB 656, 657-658 at fn 5 (1981), in which the Board adopted the administrative law judge's rulings, among which was a ruling that precluded the parties from litigating those allegations covered by a settlement agreement until such time and only if It was determined that a basis existed to warrant vacating and setting aside the settlement agreement. The judge, with Board approval, proceeded to find that the respondent did not violate Sec. 8(a)(1) of the Act regarding those allegations pertaining to conduct subsequent to the settlement, and therefore found no basis had been shown or existed to warrant setting aside the settlement agreement, and consequently found that the allegations contained in the amended consoli- dated complaint covered by the terms of the settlement were precluded from being litigated See also Ann 's-Schneider Bakery, 259 NLRB 1151, 1152, 1160 (1982) In this case an initial series of charges that had been settled were set aside by the Regional Director following the filing of postsettlement charges, and a consolidated complaint was issued alleging violations of Sec. 8(a)(1), (3), (4), and (5). In her decision, the administrative law judge spe- cifically stated, "I will consider first the General Counsel's allegations that Respondent engaged in unfair labor practices after the execution of the settlement agreement, since a Finding of failure to comply with the settlement agreement or of postsettlement violation is a prerequisite to a finding of violation based on presettlement conduct Interstate Paper Supply Company, 251 NLRB 1423 (1980) " At the conclusion of her deci- sion the judge concluded that since no unfair labor practices were com- mitted by the respondent after the execution of the settlement agreement, the Regional Director had no grounds for setting the settlement agree- ment aside. She then recommended that the settlement agreement be rein- stated, and found that it was "therefore unnecessary to make any findings concerning the alleged unfair labor practices predating the settlement agreement." Delver Concentrator Ca, 253 NLRB 358 (1980), The Board adopted her recommendation and agreed that there was no remainmg basis for a violation of Sec. 8(a)(5) in the issuance of a bargaining order U.S. GYPSUM 9 dence in said cases." Counsel for the Charging Party filed a memorandum in support of the General Counsel's interim appeal, and counsel for the Respondent filed a reply in opposition. On November 4, 1982, the Board granted the General Counsel's request for special permis- sion to appeal "to the extent consistent herewith." I was directed to permit the introduction of all evidence relat- ing to all the consolidated cases set for hearing. The Board emphasized, however, that this ruling was without prejudice to the right of any party to contest the validity of the determination to set aside the settlement agree- ment. Member Hunter dissented. Following the conclu- sion of the hearing, all parties filed briefs. In their brief counsel for the Respondent, inter alia, renewed the mo- tions to dismiss, including those relating to Respondent's position that the settlement agreement was improperly set aside by the General Counsel, and should be reinstat- ed and enforced. Respondent moves to dismiss paragraph 23(d) of the amended consolidated complaint, the surface bargaining amendment. Respondent argues that because the charge in Case 8-CA-15043-2, the only surface bargaining charge, was filed September 14, 1981, there is no charge to support any claim that Respondent's bargaining before March 14, 1981 is part of an unlawful course of conduct. The General Counsel argues, however, that the bargain- ing between September 24, 1980, and the 10(b) date of March 14, 1981 in Case 8-CA-15043-2 is covered by the previous 8(a)(5) charges, the first of which was Case 8- CA-14365, filed on November 5, 1980. I agree. The Board has long held that the requirement that an unfair labor practice proceeding be based on a charge filed within the 10(b) period is satisfied where the subject of the inquiry sufficiently related to a charge filed within that period. The cases cited by the Respondent in sup- port of its position are instances where the allegations compared were completely different and unrelated. The circumstances in this area of the instant case are other- wise. The charge in Case 8-CA-14365 concerns an al- leged refusal to furnish information concerning job de- scriptions. Likewise, the charge in Case 8-CA-14869, filed May 21, 1981, is an 8(a)(5) charge concerning the bargaining over the conditional recognition clause. Both of these charges antedate Case 8-CA-15043-2 and are directly related to the surface bargaining allegation, indeed, they are an integral part of that allegation and, as such, bring the Respondent's pre-March 14, 1981 bar- gaining within the limitations period of Section 10(b) of the Act. Respondent's motion to dismiss paragraph 23(d) of the amended consolidated complaint on the ground that it includes alleged unfair labor practices outside the 10(b) period is denied. Respondent also renews its oral motion to dismiss all the complaint allegations preceding the settlement, which according to the General Counsel included Cases 8-CA- 14365, 8-CA-14578, 8-CA-14869, 8-CA-15043, and 8- CA-15043-2. Counsel for Respondent contends that the General Counsel acted improperly in abrogating the set- tlement agreement, which Respondent maintains should be reinstated and processed. Respondent further argues that the settlement agreement may be set aside and unfair labor practices found based on presettlement conduct only if there has been a breach of the settlement agree- ment either by a failure of the Respondent to comply or subsequent unfair labor practices. Logic and the weight of authority support the Respondent's position. Section 3(d) of the Act provides, in pertinent part: The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than Trial Examiners and legal as- sistants to Board Members) and over the officers and employees in the Regional Offices. He shall have final authority, on behalf of the Board, in re- spect of the investigation of charges and issuance of complaints under Section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law. Accordingly, the Board has held that by reason of Sec- tion 3(d), "The General Counsel has virtual unlimited discretion to proceed in such timely filed charges as he deems fit and, in the absence of a showing of abuse of discretion the Board will not interfere with the General Counsel's exercise thereof." California Pacific Signs, 233 NLRB 450, 451 (1977). 7 I find that the General Counsel abused his discretion by abrogating the settlement con- trary to the clear intent of Section 102.19(c) of the Rules and Regulations of the Board. The informal settlement agreement contained, inter alia, provisions requiring the posting of an attached notice, the charged party to comply with its terms, and the following clauses: REFUSAL TO ISSUE COMPLAINT-Ill the event the Charging Party fails or refuses to become a party to this Agreement, and if in the Regional Director's discretion it will effectuate the policies of the Na- tional Labor Relations Act, the Regional Director shall decline to issue a Complaint herein (or a new Complaint if one has been withdrawn pursuant to the terms of this Agreement), and this Agreement shall be between the Charged Party and the under- signed Regional Director. A review of such action may be obtained pursuant to Section 102.19 of the Rules and Regulations of the Board if a request for 7 The following cases cited by the Charging Party are inapplicable for the reasons set forth below Silver Bakery, 150 NLRB 421 (1964), was overruled by the Board in Winer Motors, 265 NLRB 1457 (1982) Harowe Servo Controls, 250 NLRB 958, 963 (1980), concerns the General Coun- sel's refusal to proceed on charges he deems not to have merit In Central Enterprises, 239 NLRB 1270, 1271 (1979), the General Counsel extended the time period for filing an appeal from the Regional Director's refusal to issue a complaint Russell Coal & Clay Co, 165 NLRB 978 (1967), is a situation in which the union's appeal of the Regional Director's dismissal of a charge was reinstated when the appeal was timely sent but not timely received In Baltimore Transit Co, 140 F 2d 51 (4th Cir. 1944), the Board decided it had no jurisdiction over the transit industry, and when the Supreme Court decided otherwise in other cases the circuit court held that the Board was not estopped in reactivating the charge and issu- ing complaint In Sehg Mfg. Co., 79 NLRB 1144 (1948), the settlement agreement specifically provided that it was null and void if the Board faded to approve it, and the Board never at any time gave its approval. Central Enterprises, 239 NLRB 1270 (1979), deals with the Regional Di- rector's revocation of his earlier decision not to issue a complaint, based on the General Counsels consideration of an appeal not timely filed 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD same is filed within 10 days thereof. This Agree- ment is contingent upon the General Counsel sus- taining the Regional Director's action in the event of a review. Approval of this Agreement by the Re- gional Director shall constitute withdrawal of any Complaint(s) and Notice of Hearing heretofore issued in this case. PERFoRmANCE—Performance by the Charged Party with the terms and provisions of this Agree- ment shall commence immediately after the Agree- ment is approved by the Regional Director, or, if the Charging Party does not enter into this Agree- ment, performance shall commence immediately upon receipt by the Charged Party of advice that no review has been requested or that the General Counsel has sustained the Regional Director. NOTIFICATION OF COMPLIANCE—The undersigned parties to this Agreement will each notify the Re- gional Director in writing what steps the Charged Party has taken to comply herewith. Such notifica- tion shall be given within 5 days, and again after 60 days, from the date of the approval of this Agree- ment In the event the Charging Party does not enter into this Agreement, initial notice shall be given within 5 days after notification from the Re- gional Director that no review has been requested or that the General Counsel has sustained the Re- gional Director. Contingent upon compliance with the terms and provisions hereof, no further action shall be taken in this case. The execution of this Agreement does not consti- tute an admission that the Charged Party has vio- lated the Act, as amended. On November 16 the Region sent the proposed settle- ment to the parties. On November 20, 1981, the Charg- ing Party objected to the settlement not containing pro- visions dealing with the strike, and did not join in the settlement. The Regional Director nevertheless approved the agreement unilaterally on November 27, 1981. The Unions appealed pursuant to the provisions of the agree- ment and Section 101.9(c)(2) and 102.19 of the Board's Rules and Regulations. By letter dated January 20, the General Counsel sustained the Regional Director's ap- proval of the settlement, and acknowledging the Unions' claim that the strike was not provided for, nevertheless stated: . • . it was concluded that the settlement agreement and notice provides a complete remedy for which a relief could be achieved by going to trial; thus the undertakings contained therein effectuate the pur- poses and policies of the Act. Section 102.19(c) provides: (c) The General Counsel may sustain the Region- al Director's refusal to issue or reissue a complaint, stating the grounds of his affirmance, or may direct the Regional Director to take further action; the General Counsel's decision shall be served on all the parties. A motion for reconsideration of the de- cision must be filed within 10 days of service of the decision, except as hereinafter provided, and shall state with particularity the error requiring reconsid- eration. A motion for reconsideration based upon newly discovered evidence which has become avail- able only since the decision on appeal shall be filed promptly on discovery of such evidence Motions for reconsideration of a decision previously recon- sidered will not be entertained, except in unusual situations where the moving party can establish that new evidence has been discovered which could not have been discovered by diligent inquiry prior to the first reconsideration. The Unions did not file any motion for reconsideration under the Board's rules, within the 10-day limit or at any other time. Meanwhile, the sustaining of the Regional Director's approval of the agreement was, under the wording of the performance clause, supposed to "imme- diately" trigger performance of the agreement's terms by the charged party. This never occurred because, as the General Counsel specifically conceded, the notices and other materials Respondent needed to comply with its settlement obligation were withheld and were "sitting on a table in my office." They remained there for over a month, and thus the Respondent was actively prevented from complying with the terms of the agreement. Then on February 22, by letter, the General Counsel "recon- sidered sua sponte" the denial of the Unions' appeal and reneged on what was by this time a binding settlement commitment. I find that the General Counsel's sun sponte reconsideration and his representatives' subse- quent action denied the Respondent due process of law and prejudiced the Respondent by wrongfully compel- ling Respondent to pursue protracted and expensive liti- gation that, by entering into the settlement, it sought to avoid. Section 102.19(c) specifically provides a 10-day period in which an aggrieved party may seek reconsider- ation of the General Counsel's action. No such relief was sought. The clear intent of this provision is to bring the matter under review to an end, after allowing the party denied relief one last chance to convince the General Counsel. Any other interpretation of the reconsideration clause of Section 102.19(c) renders it a nullity, including the concept of sun sponte reconsideration, which is com- pletely outside the scope of the rule. I am persuaded that the Board did not intend this portion of the rule to be so construed. Cf. Forrest Industries, 168 NLRB 732 (1967). Otherwise the clause would have been either omitted al- together, or provisions for further reconsideration would have been specifically included. Thus, by acting outside the scope of Section 102.19(c) of the Board's Rules, and in direct contravention of its wording and intent, the General Counsel committed an abuse of discretion. 8 His 8 The Board has often observed, particularly in recent years in the light of its ever-mcreasing caseload, that the Agency's extensive program to encourage settlements has become not only highly desirable, but also essential to the effective administration of the Act Thus, the Board's most recently printed annual report, 1981, shows that 82 2 percent of the unfair labor practice cases, determined to have merit by the General Counsel and his representatives, were settled by the Regional Offices. Continued U.S, - GYPSUM — 11 action in abrogating the settlement is, therefore, a nullity, and the settlement must be reinstated to stand unless viti- ated by failure to comply or by subsequent unfair labor practices that warrant setting it aside. Cf. United Dairy Co., 146 NLRB 187 (1964); Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978). Attendant to my finding that the General Counsel im- properly abrogated the settlement agreement in this matter is a consideration of the effect of that settlement on this proceeding. The law is clearly stated in the fol- lowing leading cases.9 Roadway Express, 254 NLRB 668 (1981), was a con- solidated CA-CB proceeding against both the respondent company and the union. An all-party settlement was reached after issuance of complaint, but prior to the hearing. Then the union announced its intention not to comply with the settlement agreement. The respondent company, however, never refused to comply with the agreement and maintained its position that at all times it Was willing to comply fully. Nevertheless, the Regional Director set aside the settlement and proceeded to hear- ing. The administrative law judge found violations against both respondents. The Board reversed the judge insofar as violations were found against the respondent company. In noting that the settlement agreement was set aside through no fault of respondent Roadway and that no subsequent unfair labor practices were alleged, the Board stated: Absent an effective settlement program the Agency's processes would soon drown in a sea of litigation. It is, therefore, imperative that the public have confidence that the settlement commitments made by the General Counsel and his agents, the Regional Directors. Such confidence is built on fairness in the administration of the settlement program, not only toward individuals and labor organizations, but to employers large and small as well Moreover, it is just as important to be perceived to be fair as it is to practice fairness. Central to this critical perception is a party's ability to rely, absent violation of the agreements' terms, on the steadfastness of settlement agreements, albeit unilateral, once the appeal process spelled out in the Board's Rules and Regulations is at an end In this respect, to say the least, the ambivalent conduct of the General Counsel and his subordinates throughout this matter leaves something to be desired, and should not serve as a model for future emulation. Those who might be prone to criticize this conclusion would do well to objec- tively consider how they would have viewed the dependability of the Agency's settlement process (and assessed their future willingness to enter into Board settlements) if what has happened to the Respondent during the course of this proceeding had instead happened to them. Be- cause no inference of guilt attaches from a charged party's entering into a settlement agreement (which in this instance, in addition, contained a nonadmission clause), the Respondent has been greatly prejudiced by the risk it was forced to assume by the settlement's abrogation under the cir- cumstances presented, not to mention the time and expense of litigation. 9 Fn 17 of the General Counsel's brief cites the case of Fox River Pat- tern, 199 NLRB 68 (1972). However, Fox River is distinguishable in at least two significant respects First, neither the General Counsel nor the Board ever passed on the settlement agreement therein Second, the cen- tral issue in the case was the existence or absence of a question concern- ing representation, which remained unresolved by reason of the Board's action Thus, the settlement agreement failed of its purpose. In the instant case the purpose of the settlement agreement is to resolve the unfair labor practice charges within its scope. It achieves this purpose. A resolution of the status of the strike is not the purpose of the agreement because the status of the strike is not itself an unfair labor practice, but merely a re- sulting conclusion entirely dependent on a finding concerning the unfair labor practices Moreover, in his letter denying the Unions' appeal, the General Counsel specifically fonnd that the Regional Director's approval of the settlement effectuated the purposes of the Act. "It is well-established that an unfair labor practice will not be found based on presettlement conduct unless there has been a failure to comply with the settlement agreement, or subsequent unfair labor practices have been committed." [Citing Interstate Paper Supply Co., 251 NLRB 1423 fn. 8 (1980).] Indeed, "[T]here is no question that a Regional Di- rector may not set aside a settlement agreement and issue a formal complaint unless the charged party has failed to comply with its terms or committed further unfair labor practices." [Citing Bingham-Wil- liamette Co., 199 NLRB 1280, 1281 (1972).] In the instant case, the General Counsel neither contends that Respondent Roadway has refused to comply with the settlement agreement nor alleges any sub- sequent unfair labor practices. Accordingly, we shall dismiss the complaint in Case 15-CA-6974, and reinstate settlement agreement approved by the Acting Regional Director for Region 15 on Febru- ary 7, 1979. In Jackson Mfg. Co., 129 NLRB 460 (1960), the com- plaint alleged violations of Section 8(a)(1), (3), and (5). Involved were allegations of a refusal to bargain during negotiations and an alleged unfair labor practice strike. The initial unfair labor practices occurred in 1957. The strike began September 26, 1957, and ended in June 1958. Thereafter, the Regional Director approved a settlement agreement on June 13, 1958, which was signed by the re- spondent but rejected by the union. The union did not appeal the settlement under Section 102.19 of the Board's Rules and Regulations. The Regional Director approved the settlement with knowledge of the end of the strike. On June 20 the respondent refused to bargain with the union on the basis of a lack of a majority because the union's support had been replaced as economic strikers. The respondent complied with the settlement, and on October 14, 1958, the Regional Director gave written notice to the parties of the effectuation of compliance and the closing of the case based on continued observ- ance of the terms of the settlement. About 2 weeks later the union filed further charges alleging violations of Sec- tion 8(a)(1) and (3) based on the respondent's failure to reinstate the replaced strikers and recognize and bargain with the union, the same events to which the union had referred in its letter of June 20, 1958, to the Regional Di- rector. On July 28, 1959, the General Counsel issued a complaint based on these charges. The complaint alleged incidents of interference, restraint, and coercion of em- ployees prior to June 10, 1958, but did not allege viola- tions of Section 8(a)(3) and (5) during this same period, as originally charged. The trial examiner found that the settlement agree- ments should not be set aside because none of their terms, which dealt exclusively with the respondent's ob- ligation to refrain from violations of Section 8(a)(1) of the Act, were violated by the respondent's subsequent conduct. The trial examiner noted: "It is well established that where, after the execu- tion of a settlement agreement, unfair labor prac- tices occur which violate that agreement, the Board 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD will go behind the agreement and litigate the pre- settlement as well as the postsettlement violations." [Citing Courier Post Publishing Co., 102 NLRB 26, 28 (1953).] Explicit in this settled rule is the require- ment that the agreement itself must be violated by sub- sequent unfair labor practices before it would be abro- gated. Consequently, with particular reference to the agreement here, it must be demonstrated that at some period following its execution . . . the Regional Director . . . uncovered subsequent unfair labor practices which specifically violate the terms of the agreement. [Emphasis added.] The trial examiner found that because the unfair labor practices, which were the subject of the settlement agreement, all were specific violations of Section 8(a)(1), the subsequent charges alleging violations of Section 8(a)(5), based on a refusal to bargain for lack of a majori- ty, and violations of Section 8(a)(3) for refusing to rein- state the economic strikers, did not violate the settlement agreement. In the words of the trial examiner, "Wholly independent of my conclusion stated above that the terms of the agreement were not violated by subsequent unfair labor practices, simple justice would seem to dic- tate that parties to a bargain should be required to live with it." The majority of a three-member panel of the Board adopted the trial examiner's decision. Members Leedom and Rogers wrote: As we agree with the Trial Examiner that the Respondent did not commit any independent unfair labor practices after the execution of the settlement agreements, we find, as did the Trial Examiner, that the settlement agreements were not breached and the complaints herein should be dismissed. . . . We cannot agree with our dissenting colleague that "these are cases where it is necessary to look behind the settlements" because of the Respondent's undisclosed conduct "on the very eve of affixing their signatures to these settlements." The undis- closed conduct on which the dissent relies consisted of the Respondent's refusal on June 10 to reinstate the strikers, and its failure on that date to recognize the Union. This conduct, however, did not in itself constitute an independent unfair labor practice. In- stead, inasmuch as all the strikers had been replaced prior to their application for reinstatement, such conduct could be characterized as an unfair labor practice only if the strike were found to be an unfair labor practice strike. Such a finding would, in turn, require consideration of events which oc- curred during the preceding August, September, and October; and these events are the very ones that were encompassed in the Union's initial charges which the Regional Director obviously considered when he concluded that the remedial provisions of the settlement agreements, sounding in 8(a)(1) and not in 8(a)(5), were sufficient to effectuate the poli- cies of the Act. Thus, the operative facts which would determine whether the Respondent engaged in unfair labor practices at the time the settlement agreements were signed were the very facts of which the Regional Director was necessarily aware, and which he necessarily had considered and evalu- ated. Whether the Regional Director was right or wrong in his evaluation of these facts is, in our opinion, immaterial in the present posture of these cases. What is material and controlling is that a duly executed settlement agreement must be honored, if the Board's settlement procedures have any meaning, unless the respondent's conduct demonstrates that the agreement has failed of its purpose. The Respondent's conduct here does not so demonstrate. [Emphasis added.] Sundstrand Castings Co., 209 NLRB 414 (1974), was a case in which the union filed a charge alleging that the respondent company violated Section 8(a)(5) and 8(d) by instituting an incentive plan, and concerning the discipli- nary action and layoffs arising out of the implementation of the plan. As a result of these events, and allegedly over unfair labor practices, the employees struck on March 27. On May 4, 1972, the case was settled unilater- ally between the Regional Director and the respondent company. The union did not appeal the settlement.1° The settlement specifically covered the complaint allega- tions concerning the installment of the incentive plan, all disciplinary action taken pursuant to it, the recall of em- ployees laid off in anticipation of the plan, and the sus- pension of one other employee. At a bargaining session on May 19 the company informed the union of its deci- sion to close the plant. At the final company-union meet- ing on June 29 the union made an unconditional offer to return the strikers to work. The employees reported for work on July 3 and 5, but were not reinstated. The com- pany ceased operations on July 21. On July 27 the union filed another charge alleging that the company refused to bargain concerning its decision to close the plant and its failure to reinstate the strikers. On September 20 the Re- gional Director issued a complaint on these allegations, and on January 8, 1973, he withdrew his approval of the prior settlement agreement, and issued an amended con- solidated complaint covering all allegations. The trial examiner denied the respondent's motion at the outset of the hearing to dismiss the complaint based on the argument that the original case had been settled. The trial examiner heard all the evidence, including that with respect to respondent's presettlement conduct, and made findings thereon. In dismissing the consolidated complaint and reinstating the settlement the Board stated (209 NLRB at 414): 1 ° In the instant case, although the Union appealed, the appeal was denied and no motion for reconsideration was filed. The General Counsel also cites the Jackson Mfg. and Sundstrand Cast- ings cases, also discussed above, and distmgmshes them on the basis that in those cases the respondents had complied with the settlements before the approvals of the settlements were withdrawn. In the present case this distinction Is a Catch 22, since Respondent was prevented from the imme- diate compliance required by the settlement's terms by the Regional Of- fice's month-long failure to send Respondent the necessary documents. U.S. GYPSUM 13 We have long followed a policy that settlement agreements will not be set aside absent a breach of their provisions or the commission of subsequent unfair labor practices. It is undisputed that Re- spondent fully complied with the terms and condi- tions of the settlement agreement in Case 13-CA- 11299. Furthermore, the Administrative Law Judge found, and we agree, that the Respondent committed no additional unfair labor practices. In these circum- stances the policies of the Act are best effectuated by reinstatement of the settlement agreement in Case 13-CA-11299. Unlike the Administrative Law Judge, therefore, we find it unnecessary to consider the matters covered by that settlement agreement and, consequently, we do not adopt his findings with respect to such matters. [Emphasis added.] The General Counsel asserts that by abrogating the settlement he was simply correcting a mistake. 11 This ar- gument has no merit because it is completely contrary to the undisputed evidence concerning the events that tran- spired at the time of the approval of the settlement and during the appeal process. There were no circumstances of which either the Regional Director or the General Counsel were unaware at the time the settlement was ap- proved and the appeal was denied. The Charging Party candidly acknowledges that, during the period when the Regional Director's approval was pending but not final, it filed its objections to the settlement, which included a specific objection referring to the alleged unfair labor practice strike. The Unions had already filed charges with the Regional Office, which claimed that the strike was an unfair labor practice strike. During the period in question it filed additional charges reiterating the Unions' contention. Every participant in the settlement was fully aware of everything that was happening and the implica- tions involved, as the General Counsel's January 20, 1982 letter denying the Charging Party's appeal clearly proves. The decision by the Regional Director and the General Counsel to accept the unilateral settlement was a conscious one from which the General Counsel cannot now renege simply because it has proved unpopular. The General Counsel's final and alternative argument is that even if the settlement is upheld all the evidence concerning all the presettlement conduct is background evidence of the Respondent's motive for allegedly com- mitting the postsettlement unfair labor practices and, as such, must be considered in conjunction with the evi- dence specifically relating to these alleged violations. The General Counsel's contention is based on the well- established general principle enunciated in Laborers Local 185 (Joseph's Landscaping), 154 NLRB 1384 (1965), that presettletnent conduct is admissible to show the motive " The General Counsel cites Stage Employees IATSE Local 659 (MPO-TV of Califirilia), 197 NLRB 1187 (1972), in support of his "mis- take theory." However, that case is inapposite because it involved a mis- take in the computation of backpay of which the parties were unaware at the time the settlement agreement was approved, and therefore the Board found there was no meeting of the minds at the time of execution. The Charging Party cites Universal Building Services, 234 NLRB 362 (1978), also inapplicable because it concerned a settlement set aside on the basis of misconduct of which the Regional Director was unaware at the time he approved the agreement or object of postsettlement conduct. The fallacy in the General Counsel's argument is it ignores the fact that motive and object are immaterial to the two postsettle- ment allegations in this case. With respect to four strik- ing employees the issue is simple. It is undisputed that the alleged misconduct for which these employees were terminated immediately after the end of the strike oc- curred in the context of their strike activities. If the four strikers committed misconduct sufficient to bar their re- instatement, or if the Respondent had an honest belief that they did and acted on that belief, there is no viola- tion of the Act with respect to their discharges. If the converse is borne out by the record evidence then the four employees were discharged for protected union and concerted activity and are entitled to reinstatement in ac- cordance with their rights as economic or unfair labor practice strikers, whichever may prove to be the case. Therefore, unlike most 8(a)(1) and (3) discharge cases brought before the Board, motive is totally immaterial to this particular situation. Concerning the issue of the alleged unilateral change of breaks and lunch period beginning during the strike, allegedly without advance notice to, or bargaining with, the Unions, the question of the importance of motive has long since been disposed of as a matter of law. The ap- plicable cases hold that an employer's motive is not an element essential to a finding that a unilateral change is violative of Section 8(a)(5). NLRB v. Katz, 369 U.S. 736 (1962). Since Katz, the Board and the courts have uni- formly followed this viewpoint. Seafarers Atlantic District Local 777 (Yellow Cab) v. NLRB, 603 Fid 862, 889 (D.C. Cir. 1978); Gulf Coast Automotive Warehouse, 256 NLRB 486, 488-489 (1981); Merrill & Ring, Inc., 262 NLRB 392 (1982). Lastly, the General Counsel cites George Banta Co., 256 NLRB 1197 (1981), to support his claim that evidence concerning the settled unfair labor practices should be considered as background evidence to establish the nature of the strike. The portion of the Banta case on which the General Counsel relies is an un- reported ruling of the Board in that case that, conse- quently, is not properly precedent because it is not an of- ficial published Board decision. I take no official notice of that portion of the Banta case. Furthermore, the re- ported decision reveals significant distinctions. First, the settlement agreement specifically included a statement of the striking employees' reinstatement rights that coincid- ed precisely with those of unfair labor practice strikers. Second, as appears from General Counsel's Exhibit 2(b), in Banta all parties, including the respondent, sought to withdraw from the settlement, and agreed it was not in effect. I therefore find that in these circumstances the law enunciated in the Roadway, Jackson, and Sundstrand cases, supra, is controlling. Accordingly, consistent with the procedure approved in Tappan, supra, and Chassen Bros., supra, I shall first consider the issues that were first included in the complaint after the settlement. v, THE ALLEGED UNILATERAL CHANGE IN LUNCH PERIOD AND BREAKS AFTER BEGINNING OF STRIKE The contract that expired October 31, 1980, provided: 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ARTICLE IV—HOURS OF WORK Section I. The normal work schedule will consist of forty (40) hours per week and eight (8) hours per day; but this shall not be construed as any guarantee of hours of work; nor any limitation upon assign- ment of hours of work. Section 2. The regular work day for the first shift shall begin at 11:00 P.M. and end at 7:00 A.M., for the second shift the regular work day shall begin at 7:00 A.M. and end at 3:00 P.M., and for the third shift the regular work day shall begin at 3:00 P.M., and end at 11:00 P.M. The employees work sched- ule within the regular shift periods or other as- signed shifts will include three 10-minute breaks. For the purpose only of computing overtime pay, the standard seven (7) day work week shall begin at 11:00 P M Sunday, and each standard work day of twenty-four (24) hours, including Sunday and holi- days, shall begin at 11:00 P.M. It is undisputed that as of the beginning of the strike on June 3, 1981, article IV operated as follows with re- spect to lunch periods and breaks. There were 30 min- utes of paid nonworktime per day in the form of three 10-minute breaks per shift. Thus, first shift lasted from 7 a.m. to 3 p.m. with three 10-minute breaks at 9 a.m., 11 a.m , and 1 p.m. Second shift ran from 3 p.m. to 11 p.m. with three 10-minute breaks at 5 p.m., 7 p.m., and 9 p.m. Third shift hours were 11 p.m. to 7 a.m. with three 10- minute breaks at 1 a.m., 3 a.m., and 5 a.m. There was no separate lunch period. Patrick Kearney, the I.U.E.'s staff representative re- sponsible for servicing the contract at U.S. Gypsum's Warren, Ohio plant, served as the Unions' chief negotia- tor throughout the long series of meetings that com- prised the 1980 negotiations. At the outset of his testimo- ny, concerning the issue of the alleged unilateral change of shifts and breaks, he insisted that neither the Company nor the Unions ever made a proposal during the negotia- tions to change the shift hours. According to Kearney, he first learned that a change had been made at the Oc- tober 13, 1981 bargaining session. Present for the Unions at that meeting, in addition to Kearney, were Walter Phillips (from the International Union) and the Local Union committee composed of Local 727 President Ray Davis, Financial Secretary Patricia Leonard, Vice Presi- dent David Everett, and Bob Brainard. Various unnamed employees from the Unions' membership were also present in an unofficial capacity, but did not participate. The Company was represented by Works Manager John Daugherty and Personnel Superintendent Timothy M. Ryan. Federal Mediator Sieski was also in attendance. According to Kearney, the Company had promised to give the Unions a new proposal at this meeting. The pro- posal was presented and certain features were discussed, after which the Unions said they would review the pro- posal and make a future response. Then, Kearney testi- fied, Daugherty said, "By the way, we changed the shift change in the plant." Kearney answered by asking, "Is this a new proposal?" to which Daugherty responded, "No, we have already changed it. We have been operat- ing like that for months." Kearney retorted, "Well, you know you just don't unilaterally change the shift changes without negotiating," to which Daugherty replied, "Well, it is into effect and were going to keep it that way. If you don't like it, go ahead and file an NLRB charge." Kearney testified that their discussion of this topic at this meeting ended when he said, "We'll go over the proposal, and ask the membership about it," to which Daugherty stated, "Well, we don't care whether you ask the membership or not. We plan on keeping it." It is undisputed that the change to which Kearney re- ferred in his testimony involved adding a one-half hour unpaid lunch period at midshift and redistributing the former 30 minutes of paid nonworktime per shift to pro- vide for a 15-minute break in the middle of the first half of the shift, a 10-minute break at the middle of the second half of the shift, and a 5-minute washup period at the end of the shift. One result, he observed, was that each work shift was extended one-half hour. In accord- ance with the stipulation of the parties, this change was effective July 1, 1981, approximately 1 month after the beginning of the strike. Kearney further testified that this change was dis- cussed again at the following meeting on October 19, 1981, attended by the same persons except that Phillips was absent. At this time, according to Kearney, after a discussion of the Company's contract proposal, he stated that the Unions were not interested in changing, the shifts. He testified that Daugherty answered that it made no difference because they had put it into effect and that was the way they were going to keep it. Kearney reiter- ated that the Unions never had been notified of the change prior to the meeting of October 12, nor had they been afforded an opportunity to bargain about it. He in- sisted that the Company had never given them any reason for the change.12 Local 727 President Ray Davis was the only other witness to testify about the changes on behalf of either the General Counsel or the Charging Parties." Davis' testimony differed somewhat from that of Kearney. Con- cerning the October 13 meeting, he testified that after some preliminary discussion about the charges the Union had filed with the NLRB, the Company asked for a recess and returned with a proposal that the Union re- viewed and the parties discussed. Toward the end of the meeting, Daugherty announced that there had been a shift change that had been in operation several months, that it had worked well, and that they planned to contin- ue. Daugherty described the change as consisting of a 15-minute break after 2 hours of work, a half-hour unpaid lunchbreak after the next 2 hours, a 10-minute break after 2 more hours of work, and a 5-minute clean- up period before the end of the shift. He said this would extend the shift one-half hour. He also stated that the third shift had been eliminated after the strike began 12 Throughout this proceeding It was never definitely established whether the October 12 meeting took place on October 12 or 13 The witnesses used the two dates interchangeably However, the parties agree that there was only one session at this time. 13 Everett and Leonard were present dunng most of the hearing and testified on other issues U.S. GYPSUM 15 cause business did not require one at that time. Then someone from the Unions asked if this was a new pro- posal, to which Daugherty answered that it was a change that had been implemented and they intended to keep it that way. Davis did "not recall" Kearney leaving the room with the mediator during the course of the meeting, but, Davis stated, he was not absolutely certain that Kearney was present when the shift change was dis- cussed, or if Kearney was present during the whole meeting. Concerning the October 19 session (which Davis re- ferred to as having taken place on October 18), Davis testified that at the first of the meetings Kearney rejected the Company's new proposal, going through the propos- al item by item. Then Kearney stated that the member- ship had considered and rejected the shift change and wanted to maintain the shifts and breaks the way they had been prior to the strike. Daugherty answered that the change was not a part of the proposal. He said it had been implemented, was working fine, and would be maintained indefinitely. Kearney protested that it was a violation of the contract and that he would file charges with the NLRB. Daugherty told him to go ahead if he wished. Following his description of these two meetings, con- cerning which Kearney testified, Davis stated, in re- sponse to a question by counsel for Respondent, that Daugherty might have made the remarks about the lunchroom at the meeting of May 20, 1981, also attended by Kearney and the union committee on behalf of the Unions. He then testified that he could not recall any mention by Daugherty at this meeting of a proposed one-half hour unpaid lunch period or the building of a nice lunchroom. He stated that to his knowledge the Unions were never notified prior to October 13 about the change or ever given an opportunity to bargain about it. However, he also testified that the Unions did learn about the change in shift hours from the pickets in early hily, discussed it with the membership at the July 19 union meeting, but never raised the matter with the Company. Timothy M. Ryan, personnel superintendent at the Warren plant, testified in considerable detail concerning the circumstances surrounding the shift and break change. Ryan is responsible for employee labor rela- tions, contract negotiations, grievance handling, and em- ployee benefit administration. Thus, he attended every session of the negotiations. Ryan testified that at the May 20, 1981 bargaining session at the plant, attended on behalf Of the Unions by Kearney, Davis, Everett, Leon- ard, Brainard, and a number of employee observers, " I draw no adverse Inference from the fact that Works Manager John Daugherty did not testify in this proceeding Counsel for Respond- ent explained and offered into evidence a letter from Daugherty's doctor, dated August 27, 1982, explaining that Daugherty was in no position to testify because of his recent heart attack His incapacity was reconfirmed on January 10, 1983, R. Exh. 28 In addition, the parties stipulated that Daugherty did not testify because of his physical condition, and by Joint motion of the parties, dated September 3, 1982, I admitted Daugherty's November 20, 1981 affidavit into evidence because of his unavailability. Consistent with this ruling, later in the hearing, I likewise admitted into evidence other of Daugherty's affidavits, which he has also fully consid- ered. Daugherty proposed that the plant return to a one-half hour lunch schedule such as they had had prior to 1969. He said he would like to construct a nice lunchroom, and was willing to spend. up to $50,000, if need be, to construct one. However, he said that he could not justify that expenditure to the Company although they main- tained the plant's present break schedule of three 10- minute breaks, because that did not permit the employees time to sit down and enjoy the facility. Therefore, he proposed that they change the break schedule to have, under the new contract, a 15-minute morning break after 2 hours of work, a one-half hour unpaid lunch hour, a 10-minute break in the midafternoon, and a 5-minute washup time at the end of the shift. Ryan further testi- fied that as a part of Daugherty's effort to sell the pro- posal to the Unions, Daugherty talked about the lunch- rooms in other plants, and how some plants even had tennis courts for their employees. Daugherty said that before 1969 the Warren employees had a one-half hour unpaid lunch period in which they went outside and played horseshoes. Daugherty then invited the Unions to join in the proposal so that an employee lunchroom could be obtained. Daugherty also referred to Packard Electric, a company that had moved to Mexico because of a productivity drop that caused them not to be able to compete in the Warren area. Daugherty said the loss of productivity was due to the break setup, whereby people were taking advantage of their breaks and taking 15 to 20 minutes requiring the foremen to police it all the time. Kearney said that Packard Electric had much better labor relations than U.S. Gypsum at Warren, and com- mented that the Alcan plant had tripled their productivi- ty by removing their timeclock altogether. Daugherty again said he would like to see the one-half hour lunch period he proposed installed, and would be willing to talk about the timeclock. According to Ryan, the Unions never made any response to Daugherty's detailed pro- posal. Ryan further testified that after the employees went on strike on June 3, 1981, the Company ran a limited pro- duction schedule using about 25 supervisory, engineer- ing, and office employees. Then, early in July, about 10 replacements were hired. There were 40 to 50 replace- ments by the end of July. At this time the Company in- stituted the one-half hour unpaid lunch period in order to enable the salaried personnel, who normally had a one-half hour unpaid lunch period, to better work side- by-side with the new employees they were training. Ryan testified further that at the October 13 meeting, Daugherty gave the Unions a company proposal point by point. When he arrived at the lunch money allowance feature of the proposal, Daugherty told the Unions that he planned using the one-half hour lunch period the Company had been using during the strike for the last 4 or 5 monthS. The Unions made no response until after lunch, when Kearney stated he would have to discuss the subject of the one-half hour lunch period with the membership. Later during the meeting, David Everett asked how the one-half hour lunch period and the al- tered break system were working in the plant, and Daugherty replied that they were having a 15-minute 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD break in the morning, a one-half hour unpaid lunch period, a 10-minute afternoon break, and a 5-minute cleanup time. The Unions did not protest, nor did they ask Daugherty what the Company planned to do about the lunch period after the strike. Ryan testified that at the outset of the October 19 ses- sion, Kearney announced that they had had a union meeting and discussed the Company's one-half hour lunch period proposal and the membership had rejected it. Daugherty asked Kearney why the Unions were re- jecting the proposal, and Kearney answered that the Company was doing something for "the scabs." Kearney did not ask what the Company intended to do about the lunch period after the strike. Ryan denies that Daugherty told the Unions to file a charge if they did not like the change, but remembered that Phillips said that the Unions intended to file a charge on the matter, and Daugherty answered that it was his prerogative to do so. No one at the October 19 meeting asked the Company to return to the prestrike system. Timothy Ryan testified in a precise, confident, and consistent manner. His testimony was detailed. He did not contradict himself, and he displayed an excellent memory. These characteristics of his testimony were not shaken on cross-examination. On the other hand, Kear- ney's memory failed him on cross-examination. He testi- fied that he could not recall what was discussed at the May 12 or 20 bargaining sessions. He at first said that he did not recall anything being said by Daugherty about lunchrooms at the May 20 meeting, and then immediate- ly thereafter stated that he was "absolutely sure" that no such statement was made. He admitted, however, that at sometime around May 12 or 20 he did accuse Daugherty of not being interested in correcting working conditions. Furthermore, when asked whether Daugherty mentioned Packard Electric moving to Mexico from Warren be- cause it could not compete (a portion of the total context of Daugherty's alleged remarks in which he made the lunchroom offer), Kearney testified that he would not say that Daugherty did not make this statement. In his direct testimony Davis likewise displayed uncertainty in answering the General Counsel's questions about wheth- er there was any discussion about a lunchroom or an ad- ditional one-half hour of unpaid lunchtime for employees during the May 20, 1981 meeting. His answers to the questions in this area were "not particularly at that meet- ing." And "not that I can recall." On cross-examination, however, Davis made significant admissions, which, to- gether with the gaps in his and Keaniey's memory in crucial areas and the conflicts between his and Kearney's testimony, persuades me that Ryan, and not Kearney and Davis, was telling the complete truth. Davis admitted that the Union learned of the shift change prior to July 16, but did not raise the topic with the Company at all. The reason for this, he said, was that the Unions did not care about the shift change while the strike was going on because they had no intention of returning to work and, in their view, the shift change and change of breaks did not affect them. He said that after the strike ended then the Unions wanted to resume the old schedule, but agreed that they had not raised the matter with the Com- pany since the strike ended. Furthermore, when Davis' memory was prodded on cross-examination by counsel for Respondent, he suddenly remembered that Daugh- erty did raise the subject of a lunchroom and a one-half hour unpaid lunch period at one of the bargaining ses- sions, which Davis remembered as May 12. Thus, Davis corroborated the testimony of Ryan. According to Davis, Daugherty said that U.S. Gypsum had another plant with a $50,000 lunchroom and a one-half hour unpaid lunch period, which U.S. Gypsum at Warren did not have. Davis said the subject arose when committee- man Bob Brainard complained that vending machine prices were going up in the plant and the lunch money provision of the contract had not been increased. 16 It was then that Daugherty observed that there were nice lunchrooms at other plants and tennis courts for the em- ployees' use. Davis' memory failed again, however, when he was asked if Daugherty said he would like to have that arrangement at the Warren plant or if Daugh- erty proposed that the Unions join in a proposal to obtain a lunchroom and lunch period at Warren. Instead, Davis answered indirectly, "If he did, I don't know about it." Having weighed all the testimony on this issue, I am convinced that Timothy Ryan was telling the truth when he testified that during formal bargaining in May, Daugherty orally proposed the acquisition of a lunch- room and the alteration of the lunch period and break period system as Ryan described it.16 The General Counsel contends that the Unions had no advance notice or opportunity to bargain about these changes in their working conditions, and that instead the Unions were presented with a fait accompli. The cred- ited evidence, corroborated by the admissions of Davis, does not support this theory. There is no prohibition against formal proposals in bargaining being made orally, even when other proposals in the same negotiations have been customarily submitted in writing. Indeed, such an allowance is necessary in order to further the exchange of ideas and alternatives among the participants, thereby facilitating the reaching of agreement, which then must be reduced to writing. Considering Kearney's accusation that Daugherty was not interested in correcting the em- ployees' working conditions, it is not surprising that Daugherty countered with a proposal designed to refute that accusation in a way that employees in industry not infrequently view as a significant benefit. Having made this specific proposal, and having spoken in favor of it at length, good-faith bargaining required that the Unions discuss the proposal, question it if necessary, and either accept or reject it. Instead, the Unions said nothing. The subject was changed, and the topic was never raised by the Union again, even though it originated in response to Kearney's accusation and Brainard's complaints about the vending machines. There is no evidence that the Company ever took the lunchroom, lunch period, and 15 Brainard was not called to testify by either the General Counsel or the Unions. 16 I have also considered the affidavit of John Daugherty, introduced into evidence as G C Exh. 4 This affidavit does nothing to rebut Ryan's testimony since its scope is only the October 13 and 19, 1981 meetings, and is consistent with Ryan's testimony in these respects U.S. GYPSUM 17 break proposal off the bargaining table, nor is there any evidence that the Company ever raised the subject again. Having observed the Unions' lack of interest in the pro- posal by virtue of their failure to respond, the Company was not obliged to do so. The reason for this curious lapse on the Unions' part in bargaining was made crystal clear by Davis in his testimony on cross-examination. It was simply that before the strike the Unions were not in- terested in changing the breaks and having a lunch period and lunchroom, and after the strike began they did not care because the change, in their view, affected only the replacements. Thus, it said nothing until long after the strike had begun, the change had been made, and the Unions had gained specific knowledge that the change had been put into effect. Under these circum- stances, I find that because the Respondent had fulfilled its bargaining obligation on this issue and the Unions had not, the Company was entitled to act as it did by institut- ing the change in lunch period and breaks on July 1, 1981." VI. THE DISCHARGES OF THE FOUR STRIKING EMPLOYEES FOR ALLEGED STRIKE MISCONDUCT Just as the General Counsel's handling of the settle- ment, discussed earlier, was fraught with procedural ir- regularity, the position in which the General Counsel's representatives have placed themselves with respect to the discharges of McConnell, Bankston, Everett, and Crews is likewise bizarre and untenable. To thoroughly appreciate the impact of these circumstances on the Re- spondent's right to due process and its ability to defend against these particular allegations of the amended con- solidated complaint, it is necessary to accesS events chronologically. Thus, in the context of a myriad of charges filed by the Unions, during the 'period June 11 to October 13, 1981, the Respondent filed charges with the Regional Office of the Board against the Unions in Cases 8-CB-4497, 8-CB-4547, and 8-CB-4497-4 alleging strike misconduct by the Unions' agents. The Regional Office conducted an investigation of those charges and found them meritorious, resulting in a complaint issued by the Regional Director on November 13, 1981. The complaint contained 31 separate allegations of violations of Section 8(b)(1)(A) of the Act by agents of the Unions, including employees David Everett, Walter McConnell, John Bankston, and Wally Crews. With respect to these individuals the Government's complaint alleged in para- graph 7: Since on or about June 3, 1981, and continuously to date, in the course and conduct of the picketing described above in Paragraph 6, Respondent Unions have restrained and coerced, and are restraining and 57 Consistent with my earlier rulings, I have fully considered the issue of the alleged unilateral change of lunch periods and breaks and decided that issue on the merits, because this issue was postsettlement in the sense that it became a part of the complaint after the settlement was abrogated by the General Counsel Respondent contends, however, that this issue was included within the scope of the settlement, which disposed of all 8(a)(5) issues then existent, since the events involved occurred within the period covered by the settlement See Ventura Coastal Corp, 264 NLRB 291 (1982) coercing, employees in the exercise of their rights guaranteed in Section 7 of the Act by the following acts and conduct: 7(F) On or about June 11, 1981, Respondent Unions, acting through Walter McConnell and Douglass Hofmeister, obstructed the passage of three Harshman-Industrial trucks at the intersection of Phoenix and Larchmont Roads. . . . . (I) On or about June 11, 1981, Respondent Unions, acting through John Bankston, attempted to damage an employer's truck by firing a projectile at It. (J) On or about June 15, 1981, Respondent Unions, through David Everett, attempted to damage an employer's truck by throwing a spike under its wheels. (K) On or about June 15, 1981, Respondent Unions, through John Bankston, attempted to damage an employer's truck by throwing a spike under its wheels. (L) On or about June 17, 1981, Respondent Unions, through John Bankston, attempted to damage an employer's truck by striking it with a picket sign. (P) On or about June 19, 1981, Respondent Unions, through John Bankston, attempted to force Gypsum's Works Manager John Daugherty's vehi- cle off the road on the State Route 5 and 82 by- pass. (Q) On or about August 10, 1981, Respondent Unions, through Wally Crews, threw a rock through the windshield of a truck entering Gyp- sum's Warren, Ohio facility. (R) On or about August 6, 1981, Respondent Unions, through Wally Crews, threatened a job ap- plicant with damage to his truck. . . . . (V) On or about July 31, 1981, Respondent Unions, by Walter McConnell, threatened an em- ployee entering Gypsum's Warren, Ohio facility with unspecified harm and attempted to strike said employee. Subsequently, prior to the end of the strike, the CB cases containing these allegations were settled by the Re- gional Office unilaterally, over the objection of the Re- spondent. Immediately following the end of the strike, on December 9 the Company notified the Unions, and later the individuals, that Everett, Bankston, McConnell, and Crews had been discharged for strike violence. On February 4, 1982, the Unions filed charges alleging that these individuals were unlawfully discharged. Despite its earlier position in Cases 8-CB-4497, 8-CB-4497-4, and 8-CB-4547, the Regional Director proceeded to include the four dischargees as part of his March 26, 1982 amended consolidated complaint following the General Counsel's abrogation of the settlement agreement. The complaint alleged in paragraph 29: 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (A) On or about December 9, 1981, Respondent discharged the employees set forth below, and has failed and refused, and continues to fail and refuse to reinstate said employees to their former positions of employment, or if said positions no longer exist, to a substantially equivalent position of employ- ment. John Bankston Wally Crews David Everett Walter McConnell (B) Respondent engaged in the conduct described above in Paragraph 29(A) because the employees named therein joined, supported, or assisted the Union, and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, including the strike described above in Paragraphs 10 and 27, and/or in order to discour- age employees from engaging in such activities or other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection. Thus, the General Counsel committed his representatives to prove at the hearing in this matter precisely the oppo- site of what the Regional Office's investigation had re- vealed, and the CB case complaint had alleged. This action placed both the General Counsel and the Re- spondent in an impossible position at the hearing. There the General Counsel's representatives sought to explain the issuance of two diametrically opposed sets of com- plaint allegations concerning the same employees by re- ferring to the General Counsel's well-publicized standard policy that the existence of credibility issues requires the issuance of complaint. I find this explanation unaccept- able, since nothing in the history of that policy suggests that it was ever intended to justify the General Counsel's prosecuting a case in two opposite directions. Conceding that this unfortunate situation created "an ethical prob- lem," counsel for the General Counsel then made the as- tonishing announcement on instructions from her superi- ors, impliedly in Washington, that the General Counsel took "no position" with respect to the dischargees, de- spite the existence of the above-quoted allegations of the General Counsel's complaint claiming Respondent violat- ed the Act by terminating the four employees. The Gen- eral Counsel also refused Respondent's request, based on these unique circumstances, for an advanced opportunity to see the affidavits and other relevant materials concern- ing these individuals in the Government's files in the CB cases, on which the General Counsel decided to issue complaint accusing them of strike misconduct. The grounds asserted for this refusal were those regularly ad- vanced in conventional situations (i.e., the inapplicability of discovery to Board proceedings, and the rule that affi- davits may be reviewed only after the witness has testi- fied for the General Counsel concerning the events in question). The General Counsel then proceeded to call the four discharged employees as the General Counsel's witnesses and established only that each had been em- ployed by the Company prior to the strike; had partici- pated in the strike, including picketing, beginning June 3, 1981; and, following the end of the strike on December 8, 1981, were discharged on December 9 for strike mis- conduct. 18 Then, in order to maintain consistency with the General Counsel's previously announced intention to take no position on the merits of the discharges alleged as violations of the Act in the Government's complaint, the General Counsel left all other phases of the examina- tion of the four alleged discriminatees to the Charging Party during rebuttal, thereby delegating the General Counsel's prosecutorial function as a convenient device for extricating the Government from an embarrassing sit- uation. In my view, this backdoor approach placed an unwar- ranted burden on the Charging Party and severe stresses on the Respondent's ability to defend against the dis- criminatory discharge allegations, and raises serious con- cerns in the area of due process." If the circumstances presented were those in which the Respondent had merely failed or refused to reinstate alleged unfair labor practice strikers because of alleged strike violence, Re- spondent would be required to go forward with evidence of strike misconduct as an affirmative defense, or else accept the risk that the General Counsel might prevail if the strike were found to be an unfair labor practice strike. Here, however, the Respondent discharged the four employees shortly following the end of the strike and the complaint alleges that they were discharged for their union and/or concerted activities. Thus, the Gener- al Counsel has, in addition to the overall burden of proof that never shifts from the General Counsel, the added burden of initially going forward with evidence to estab- lish a prima facie case of discrimination sufficient to shift the duty to present evidence to the Respondent. This the General Counsel never did because of the perceived ne- cessity of circumventing the "ethical problem" of pros- ecuting allegations in the instant complaint directly con- trary to those in the CB case. As a result, the Respond- ent was placed in the position of defending against a case in which evidence, that normally would have been the General Counsel's, had not been heard. Therefore, I af- forded the Respondent considerable latitude in present- ing its defense to the discharges in question. 18 Crews and Everett also testified concerning other Issues within the scope of the settlement agreement. 19 The trial of a lawsuit is not a game of chess in which the players attempt to outmaneuver each other by subtle diversions masking clever moves. Indeed, a trial of a case is not a game at all, because its purpose is the peaceful resolution of actual disputes m the real world, and not to provide amusement for the gratification of the participants' intellectual powers in a fantasy context In a society dedicated to equal justice under law the representatives charged with the difficult task of prosecuting cases on behalf of the Government need always to bear in mind that their responsibilities extend far beyond mere advocacy. Although it is their duty to attempt to wm their case, they have, in my view, a higher duty to exercise restraint and to pursue that aim in a straightforward manner, avoiding tactics occasionally indulged in by others, in order to set an ex- ample worthy of public trust Thus, they should not attempt to do indi- rectly that which it is improper to do directly As I see it, these precepts were not followed in this instance This observation is not intended as a personal criticism of counsel for the General Counsel m this action, whose career development depends to a considerable degree on the abili- ty to carry out the instructions of superiors, or any other specific individ- ual who participated in the trial of this action, but it does reflect on the judgment and sensitivity toward fairness of the public officials who actu- ally make the decisions that result in casehandhng in such a manner U.S. GYPSUM 19 The General Counsel rested following the token pres- entation of evidence described above, which in the ver- nacular might be described as limited to "name, rank, and serial number." The Respondent began its presenta- tion on the issue of the discharges by introducing testi- mony to prove that the four employees were selected for termination, from among those reported to have engaged in strike-related incidents, based on Respondent's honest belief that they had engaged in serious misconduct war- ranting dismissal. Bruce Ralph, a labor relations analyst at Respondent's corporate headquarters, testified that during the course of the Warren strike he maintained a file of reported strike related incidents, which he for- warded to Respondent's labor counsel in October 1981 together with a summary of only those reported events, considered to involve possible serious misconduct, cata- logued by the name of the employee involved. In mid- November 1981 Ralph asked John McDonald, counsel for the Respondent in this proceeding, to review the for- warded materials for the purpose of deciding which, if any, of the strikers merited disciplinary action for strike misconduct. About December 1, 1981, McDonald report- ed to Ralph that Wally Crews, Walter McConnell, John Bankston, and David Everett should be discharged for serious strike misconduct. Ralph notified Warren Works Manager Daugherty of this decision on December 7 or 8, 1981. McDonald testified concerning his role in the four dis- charges pursuant to questioning by Respondent's co- counsel, Thomas Cline, Esq. McDonald testified that be had been chief outside labor counsel for U.S. Gypsum for approximately 8 to 10 years. He first became in- volved with the strike situation at the Warren, Ohio plant in late September or early October 1981, pursuant to a request from those in the Company's labor relations department that he begin direct participation because of the increasing complexity of the situation. Concerning the specific issue of misconduct by the striking employ- ees, McDonald began a detailed consideration of this problem beginning sometime around mid-November 1981, when Ralph asked him to evaluate the file of inci- dents and decide which, if any, of the strikers should be discharged. McDonald reviewed the file of strike-related incidents, Respondent's Exhibit 22, and Ralph's summa- ry, Respondent's Exhibit 23. He then had one of the law- yers working under his supervision prepare a memoran- dum of law on the subject of what type of strike miscon- duct did or did not justify discharge. McDonald then personally evaluated these materials, utilizing two select- ed criteria. Accordingly, to be terminated, he decided, an individual would have to have been engaged in some type of property damage or serious threat or injury to a person that was provable, in McDonald's judgment, and there would have had to have been more than one act of misconduct per individual. Having applied these criteria to the documentary materials he reviewed, McDonald decided that Crews, McConnell, Bankston, and Everett would be discharged. 2° McDonald testified that he alone 20 The docnmentary materials utilized by McDonald were received into evidence as R. labs 22 through 27 for the limited purpose of show- ing that McDonald's decision was based on reports that gave nse to a made the decision to discharge these four employees, and drafted the discharge telegram and, by telephone, gave Daugherty the wording for the letter to be sent to each. The undisputed testimony of Ralph and McDonald, summarized above, is credited. Consequently, I find that, at all times material, the Respondent maintained an honest belief that the four employees in question engaged in the serious strike misconduct attributed to them in the reports and other documentary materials reviewed by McDonald. Therefore, I likewise find that their selection for discharge was made solely on the basis of that honest belief, reinforced by the Regional Director's issuance of the complaint in the CB cases on November 13, 1981, which likewise accused these four employees of serious strike misconduct in violation of Section 8(b)(1)(A) of the Act. The November 13 complaint, issued by the Regional Director, accused Crews of throwing a rock through the windshield of a truck entering the plant about August 10, 1981, and threatening a job applicant with damage to his truck about August 6, 1981. These same incidents, relied on by the Regional Director, are also included in the re- ports reviewed by McDonald. The rock throwing inci- dent was observed by James Cherry, a plant guard, who stated that at approximately 210 p.m. on August 10, 1981, he saw Crews throw a rock at the cab of a Road- way truck approaching the plant gate, and heard a loud crash. According to Cherry, employees Cox, Brend- linger, Zimmerman, Chapman, Fowler, and Crank were also present at the time Crews threw the rock. At the time of the trial in this matter, Officer Cherry was un- available to testify because he was comatose in the hospi- tal. Consequently, as in the case of John Daugherty, whose affidavit the General Counsel sought to have ad- mined into evidence because on his doctor's advice he was unavailable to testify due to his heart condition, and which I received into evidence as a joint exhibit, I also received Cherry's affidavit into evidence. Because the General Counsel did not furnish Respondent with any of the materials from the Regional Office files in the CB cases, it cannot be ascertained whether the Regional Office relied on Cherry's August 11, 1981, notarized affi- davit, or, as is customary, obtained a separate Board affi- davit from Cherry. In any event, the Regional Director deemed Cherry's account sufficiently reliable for inclu- sion of an allegation in the November 13, 1981 complaint based on that incident. In his testimony, Crews remembered being present with other striking employees when the Roadway truck crossed tbe picket line. He denied that he threw the rock at the truck, but admitted that he saw it stop thereafter at the guard shack. Crews claimed that he and Officer Cherry were friends, and that Cherry later told him that he did not know who threw the rock. None of the other striking employees present at the time, some of whom at- tended the hearing, were called to corroborate Crews' denial. Lawrence Tyran, the Roadway truckdriver, now a terminal manager for Roadway in Jamestown, New good-faith belief that the selected employees had engaged in misconduct, and not for the truth of what the reports contained 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD York, since June 1982, confirmed that a rock shattered the window of his truck on the driver's side on August 10, 1981, as he was entering the Warren plant. Tyran did not see the person who threw the rock. He reported the incident to Personnel Superintendent Timothy Ryan, who took the photographs of the damage in evidence as Respondent's Exhibits 35 A and B, and made the written report that appears at page 84 of Respondent's Exhibit 22. According to John Daugherty, as set forth as a part of the affidavit he gave to the Board in the investigation in Case 8-CB-4497, on August 6, 1981, Daugherty heard Wally Crews shout at a job applicant, as he drove through the gate in his dark green pickup truck, "Hey, buddy, you don't want to go in there. There was another guy last week who drove his nice shiny truck in there, and you ought to see it now. He didn't come back." Daugherty then proceeded to the gate and reminded Crews that his remarks were an implied threat to the ap- plicant. Crews remembered that about a month after the strike started, while he was picketing with Charlie Engle and Ralph Trafan, a green Ford Explorer pickup truck with chrome handrails on the bed passed through the gate. Crews testified that he remarked to the other pick- ets, "That's sure a beautiful truck." According to Crews, he said nothing to the driver. Nevertheless, about 15 minutes later, Daugherty came out of the plant and told him, "Wally, I'm tired of hearing you threaten and harass prospective employees of this company or people crossing this picket line." Daugherty said that his office window had been open, and that he heard Crews threat- en the driver. Crews agreed that Daugherty's window was open, but denied making the threat. Crews testified that Engle was standing right next to him when Daugh- erty came out and was in a position to hear everything. Engle testified that he remembered Crews saying to the driver, "That's a nice truck you have." He did not recall anything else that Crews had said, and did not remember Crews making any threat. Shortly thereafter, John Daugherty came out to the gate and told Crews, "Wally, you're going to have to quit threatening these people when they come through the picket line." On cross-examination Engle conceded that he did not remember Crews' response to this accusa- tion, nor did he remember everything about the conver- sation. He did, however, remember Daugherty accusing Crews of threatening the driver of the truck, which Crews denied occurred. When pressed further on cross- examination, Engle retreated further. He finally conced- ed that he could not remember whether Crews had sug- gested that the driver not enter the premises because of what had happened earlier to another truck. Thus, Engle's account and that of Crews do not match in sig- nificant respects. Finally, on his cross-examination, Crews testified that he said nothing to the driver except that, "This is a nice pickup truck." However, when re- minded that on direct examination he had testified he had said nothing to the driver but instead had made these remarks to the pickets, Crews changed his testimo- ny again, and asserted that he had made this remark to his friends and did not know how the driver had heard it. The other witness to the incident, Ralph Trafan, did not testify. Based on all the considerations described above, I do not credit Crews' testimony, which, on close examination, is not corroborated by that of Engle. I therefore find that Crews' uncorroborated denial of the rock throwing incident and the deficiencies in his tes- timony with respect to the alleged threat to the driver of the green pickup truck provide an insufficient basis, under all the circumstances presented, for satisfying the General Counsel's burden of proving that the Respond- ent discharged Crews because of his union or concerted activities, when balanced against the Respondent's good- faith belief that Crews engaged in the serious strike mis- conduct attributed to him by the results of both the Re- spondent's and the Regional Director's investigation. With respect to Walter McConnell, John H. Daugher- ty's affidavit to the Board, dated July 28, 1981, in evi- dence as Respondent's Exhibit 31, was necessarily among the materials considered by the Regional Director in is- suing the November 13, 1981 complaint. In it Daugherty described how McConnell and another employee, in Mc- Connell's car, blocked a truck convoy of three Harsh- man Industrial Cartage trucks from proceeding into the plant by using McConnell's car as a roadblock. Accord- ing to Daugherty, they continued to do so after Daugh- erty arrived on the scene and insisted that they stop blocking the road. They persisted with this activity until one of the drivers called the police on his citizens band radio. Also, in a Board affidavit dated September 9, 1981, Daugherty stated that on August 31, 1981, he ob- served McConnell, while picketing, swing at an employ- ee entering the plant gate on a motorcycle. A third inci- dent was described in testimony by plant guard Charles Piatt. According to Piatt, on June 14, 1981, he observed an unidentified man wearing dark clothes and a cap throw a rock that broke the guard house window in front of where he was standing. Piatt immediately called the police who arrived about 5 minutes later. McConnell testified that he remembered having a con- versation with a police officer about the rock throwing incident in which the guard shack window had been broken. He stated that he was probably wearing a brown jacket and hat on that occasion, and that the conversa- tion with the police officer took place in the picket trail- er where he was playing chess about an hour after his picket shift began. The policeman asked for and received McConnell's identification, whereupon the policeman asked if McConnell knew anything about the broken window in the guard shack. McConnell told him that he did not. McConnell further testified concerning the roadblocking incident. He stated that on one occasion early in the strike he left the plant with John Daugherty following in the car behind. He claimed that Daugherty blew his horn at him when McConnell stopped at a stop sign, but denied that he blocked any trucks. Striking em- ployee Doug Hofmeister was in the car with McConnell, but was not called as a witness to corroborate McCon- nell's denial. With regard to the incident involving the motorcyclist, McConnell remembered standing by the plant gate with Ed Davis when the motorcyclist entered. McConnell claimed that on the previous day the same motorcyclist had kicked him as he entered. However, on U.S. GYPSUM 21 this occasion, according to McConnell, as the motorcy- cle passed by McConnell put his hand out and stepped back, after which, he said, Daugherty came out to the guard shack and accused McConnell of yelling "scab" at the motorcyclist, which McConnell admits he did. He denied swinging or attempting to hit the motorcyclist, however. Ed Davis was not called as a witness to cor- roborate McConnelPs denial. McConnell was an evasive and hostile witness. I am persuaded that this testimony concerning the motorcyclist incident was contrived. He is not credited. I therefore find that, as in the case of Crews, his uncorroborated denial, coupled with the im- probability of portions of his testimony, is incapable of sustaining the General Counsel's burden of proving that McConnell was in fact discharged because of his union or concerted activities, when considered in the face of the Respondent's established good-faith belief that Crews engaged in the serious strike misconduct attributed to him. I therefore find that the General Counsel has not sustained his burden of proof on the allegations of the complaint relating to Crews and McConnell, and there- fore the Respondent did not violate Section 8(a)(1) and (3) of the Act in discharging these employees. Cf. Schreiber Mfg. Co., 262 NLRB 1196 (1982), enf. denied 725 F.2d 413 (6th Cir. 1984); Clear Pine Mouldings, 268 NLRB 1044 (1984). Paragraphs (I), (K), (L), and (P) of the CB-case com- plaint, issued by the Regional Director on November 13, 1981, allege serious strike misconduct by John Bankston, including three separate efforts to damage trucks at- tempting to enter the plant premises, and one instance of attempting to force Works Manager Daugherty's vehicle off the road. These reported incidents are also contained in the summary, Respondent's Exhibit 23, reviewed by McDonald. Donald Vandermyde, transportation manager for U.S. Gypsum at their corporate headquarters, testified that on June 11, 1981, while in Warren for the purpose of per- suading various trucking companies to continue service to the Warren plant despite the strike, he observed an employee firing metal pellets. Vandermyde identified this employee in the courtroom as John Bankston, who was firing metal pellets from a slingshot-type device called a "wrist rocket" at a Harshman Industrial Cartage truck, which was following Vandermyde's car out of the plant. Timothy Ryan testified that on June 15, 1981, about 1:55 p.m, he escorted a Kennedy truck down Phoenix Road to the plant. As he followed the truck, while it began its turn into the plant, Ryan saw John Bankston throw two devices known as "spiders" in front of the truck's left rear tires. 21 After the truck passed through the gate, Ryan stopped the car and attempted to pick up the spiders, whereupon John Bankston advanced on Ryan with a 4-foot long board, which he swung at Ryan's hand, missing, but hitting the spider across the ii Spiders are multapronged pieces of steel welded together in such a manner that, regardless of how the device is placed, some of the prongs will be pointing upward The parties stipulated that there were two sizes of spiders The larger size is made of one-quarter-inch diameter steel, and the prongs are approximately 1-1/4 inches in length The smaller size is made of one-eighth-inch steel with prongs approximately 1 inch in length A photograph of a spider is in evidence as R Exh 34. street. Ryan reported the incident, which appears as alle- gation 7(K) of the Regional Director's complaint in the CB case. John Daugherty's July '28, 1981 Board affidavit, a por- tion of the evidence he considered in issuing the Novem- ber 13 CB-case complaint, contains Daugherty's descrip- tion of an attempt by John Bankston to run Daugherty's car off Larchmont Road while escorting a Kennedy truck from the plant to Highway 82. Daugherty further stated that Bankston made two further attempts to force Daugherty off the road on the return trip to the plant after leaving the truck. This incident appears as allega- tion 7(P) of the Regional Director's complaint of No- vember 13, 1981. Bankston denied being present at the gate about 4 p.m. on June 11, 1981, at which time Vandermyde testified Bankston fired the pellets at the truck from the slingshot. Then, pursuant to extremely leading questions by counsel for the Charging Party, Bankston denied both having a slingshot on the picket line that day and firing the pro- jectiles at the truck. He also denied placing spiders under a truck's tires on June 15, 1981, although he was "pretty sure" he was picketing that day. However, Bankston did not deny swinging a board at Timothy Ryan on that date as he attempted to pick a spider up from off the pave- ment. Bankston further denied attempting to run John Daugherty off the road on June 19, 1981. Finally, pursu- ant to questions by , counsel for the Charging Party, Bankston volunteered testimony concerning an incident on June 17, 1981, referred to in paragraph (L) of the No- vember 13, 1981 CB-case complaint, in which Bankston allegedly swung a board in an effort to damage a Harsh- man truck crossing the picket line. According to Bank- ston, the driver swerved the truck at him as he exited the plant gate and yelled "some kind of racial slur," where- upon, according to Bankston, "If he said I swung at the truck, all I'm doing is really getting out of the way." Bankston testified that the only thing he had in his hands was a picket sign attached to a piece of board about 4 feet long. Bankston displayed a hostile demeanor while testify- ing. A significant portion of his denials were in response to grossly leading questions. He did not deny swinging a board at Ryan on June 15, and evaded making any spe- cific answer to the question of whether he swung his picket sign at the Harshman truck on June 17. I do not credit his testimony. Instead, I credit the very positive and specific testimony of Vandermyde and Ryan con- cerning their eyewitness accounts of Bankston's serious strike misconduct. I therefore find that John Bankston was discharged for cause, and not because of his union or concerted activities, as alleged in the amended con- solidated complaint. Clear Pine Mouldings, supra. In paragraph (J) of the Regional Director's November 13, 1981 complaint, David Everett was alleged to have attempted to damage an employer's truck by placing a spike under its wheels. A report of this incident was con- tained in the materials reviewed by McDonald, along with another incident involving nails reported by John Daugherty as a part of his Board affidavit of July 28, 1981. According to Daugherty, on June 15, 1981, at 8:45 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a.m., at the west entrance to the truck marshalling area of the plant, Daugherty observed David Everett and John Edwards picketing at that entrance while a plank with 20 to 30 upright nails was positioned in the middle of the entrance. Daugherty approached and asked Ed- wards to remove the plank. Edwards began to do so but replaced the plank on instructions from Everett. Daugh- erty then picked up the plank and removed it. In testimony Everett remembered the incident and agreed that when he was on the picket line, as a union officer, he was responsible for the behavior of the pick- ets. His version of the incident was substantially the same as that of Daugherty. Everett remarked that, "If John Daugherty wanted his parking lot cleaned up he could do it himself," and described how Daugherty then picked up the plank and put it in his car. Timothy Ryan testified that shortly after 2 p.m. on June 15, 1981, as he was escorting a Harshman truck out of the plant, he ob- served David Everett throw two "spiders" in front of the truck's right rear tire. The truck passed over the spi- ders, which thereafter were no longer on the road. Ryan made a written report of the incident, which appears among the materials reviewed by McDonald at page 79 of Respondent's Exhibit 22, and is also a basis for allega- tion 7(J) of the complaint of November 13, 1981. Everett denied throwing spiders under the wheels of any vehicle. I do not credit Everett. I credit Ryan's version, and find that David Everett engaged in serious strike misconduct and was therefore discharged by the Respondent for cause, and not because of his union or concerted activi- ties as alleged in the amended consolidated complaint. Concluding Findings I have found that the Respondent did not commit any unfair labor practices following the approval of the set- tlement agreement with the Regional Director. 22 There- fore, the settlement agreement was, in any event, im- properly set aside, and will be reinstated. A valid settle- ment agreement bars the finding of violations of the Act based on conduct that occurred before the parties en- tered into the settlement agreement. Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978). Therefore, it is unnec- essary for me to address the presettlement allegations of the amended consolidated complaint. Because it is well established that a finding of unfair labor practices is a prerequisite foundation for a finding that a strike is an unfair labor practice strike, I find that the strike of Re- spondent's Warren plant employees, from June 3, 1981, to December 8, 1981, was at all times material herein an economic strike and not an unfair labor practice strike. Alternatively, in any event, I would not find Respond- ent's action with respect to the lunch periods and breaks change, discussed in section V of this Decision, or its dis- 22 At the end of the General Counsel's case, I granted the General Counsel's motion to dismiss pars. 11 and 13 of the amended consolidated complaint, as amended, for an acknowledged lack of evidence. charge of the four strikers, discussed in section VI of this Decision, a basis for either setting the settlement aside or for finding the strike to have been an unfair labor prac- tice strike. The change in lunch periods and breaks was, at most, an isolated adjustment to facilitate operations under strike conditions. As earlier described, the Unions said they did not care about the change because they felt it did not concern them. Consequently, the change can in no way have caused or prolonged the strike. Further- more, under Hollywood Roosevelt Hotel Co., supra, the change actually falls within the time period covered by the settlement agreement, as events that were known or reasonably should have been known to the Regional Di- rector. Likewise, the discharges of the four strikers are unrelated to the presettlement events, both in substance and in timing, and could not have caused or prolonged the strike since the discharges occurred after the strike ended. Therefore, these allegations are insufficiently re- lated to the other allegations of the ameuded consolidat- ed complaint to warrant setting aside the settlement agreement. Hatfield Trucking Service, 270 NLRB 136 (1984). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Unions are each labor organizations within the meaning of Section 2(5) of the Act. 3. In accordance with the findings in this Decision, the Respondent has not engaged in unfair labor practices. 4. The settlement agreement in Cases 8-CA-14365, 8- CA-l4578, 8-CA-14869, 8-CA-15043, and 8-CA- 15043-2, approved by the Regional Director on Novem- ber 27, 1981, should be reinstated. 5. The strike of Respondent's employees, from June 3 to December 8, 1981, was not and is not an unfair labor practice strike. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 ORDER 1. The settlement agreement in Cases 8-CA-14365, 8- CA-l4578, 8-CA-14869, 8-CA-15043, and 8-CA- 15043-2 is reinstated. 2. Respondent's motions to dismiss the amended con- solidated complaint, as amended, are granted consistent with the findings and conclusions of this decision. 3. The amended consolidated complaint, as amended, is dismissed. 23 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.