Freight Movers, Inc. And/Or Freight Movers, Inc , Debtor-In Possession, And Interstate Driver Services, Inc

FREIGHT MOVERS 633 Freight Movers, Inc and/or Freight Movers, Inc, Debtor-In Possession, and Interstate Driver Services, Inc and Kenneth E Burke Cases 6- CA-20201 and 6-CA-20594 January 19, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On August 12, 1988, Administrative Law Judge Stephen J Gross issued the attached decision The General Counsel filed exceptions and a supporting brief The Respondent filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' The General Counsel 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 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings 2 In concluding that the Respondent s discharge (or suspension) of em ployee Kenneth Burke did not violate Sec 8(a)(1) of the Act the judge found and we agree that the Respondent established that it acted as it did because of its belief that Burke refused to swap truck 217 for truck 214 on July 15 1987 at the Jacksonville terminal Accordingly we find it unnecessary to pass on whether telephone calls that Burke made to the Respondent s president and the manager of the Jacksonville terminal con cerning the restoration of toll money to the Respondent s drivers consti tute protected concerted activity Regardless of whether Burke s actions in making the calls were protected the Respondent established that it would have discharged Burke even in the absence of his protected con certed activities See Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 US 989 (1982) approved in NLRB v Transportation Management Corp 462 U S 393 (1983) Julie R Stern Esq and Donald Burns Esq for the Gen eral Counsel Gary Owen Wang and Clayton S Morrow (Blankenship & Associates), of Greenwood Indiana, for the Respond ents DECISION I INTRODUCTION STEPHEN J GROSS Administrative Law Judge Re spondent Freight Movers Inc (FMI) is a trucking com pany FMI admits that it is an employer engaged in com merce Its employees are not unionized 1 FMI began operating in 1982 FMI s sole customer has always been the United States Postal Service One of FMI s first contracts with the Postal Service covered daily service between Jacksonville and Pittsburgh (in both directions) FMI chose to operate the service with drivers based in the Jacksonville area-the service oper ated from Jacksonville to Pittsburgh and back to Jack sonville About a year later the Postal Service asked FMI to provide additional service between the two cities FMI decided to operate that additional service with Pittsburgh based dnvers (this addition service oper ated on a Pittsburgh Jacksonville Pittsburgh basis) Kenneth Burke the Charging Party was one of FMI s Pittsburgh based dnvers In July 1987 FMI either sus pended Burke (FMI s version) or fired Burke (the Gener al Counsels version) In any case, FMI put Burke back to work about 10 days later Then, in December, FMI began operating all of its service between Pittsburgh and Jacksonville with drivers based in the Jacksonville area FMI offered to continue to employ all the Pittsburgh drivers on the runs they had been driving That offer, however, was contingent on the drivers moving to the Jacksonville area Neither Burke nor any of the other Pittsburgh drivers accepted that offer The General Counsel contends that FMI violated the National Labor Relations Act (the Act) on three occa sions The first was when FMI fired (or suspended) Burke FMI did that alleges the General Counsel, because Burke had engaged in concerted, protected activity The second was when Burke returned to work The General Counsel claims that FMI harassed Burke follow ing his reinstatement again because of Burke s con certed protected activity The third was in December 1987 when FMI shifted its operations so that all of FMI s Pittsburgh Jacksonville services operated out of Jacksonville According to the General Counsel FMI did that because Burke filed charges and gave testimony under the Act, thereby vio lating Section 8(a)(4) 2 11 FMI S DISCIPLINARY ACTION AGAINST BURKE IN JULY 1987 A Did Burke Engage in Concerted Protected Activity FMI s trucks travel over a toll road on one stretch of the trip between Pittsburgh and Jacksonville The trucks i Interstate Driver Services (IDS) is also a Respondent IDS is in the business of leasing truckdrivers to companies in the trucking industry in cluding FMI IDS and FMI admit that (1) IDS leases employees to FMI (2) IDS is an employer engaged in commerce and (3 ) IDS and FMI are joint employers 2 Burke filed a charge (in Case 6-CA-20201) on July 22 1987 then amended it on September 14 The complaint in Case 6-CA-20201 issued on October 2 Burke filed his charge in Case 6-CA-20594 on December 29 The complaint in Case 6-CA-20594 and an order consolidating cases issued on February 4 1988 1 heard the case in Pittsburgh on April 19 and 20 1988 During the course of the hearing I granted a motion by the General Counsel to name FMI debtor in possession as a Respondent Counsel for the General Counsel and for FMI filed briefs on June 10 1988 292 NLRB No 66 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are charged $5 ($10 for the round trip). FMI had always allowed the drivers to take cash advances to cover the tolls. But in May 1987 FMI changed that policy. From that time on FMI required the drivers to pay for the tolls with their own funds and then to seek reimbursement from FMI. That change upset a number of FMI's driv- ers-Burke in particular. Various drivers, including Burke, complained to Gerald Barnhart, FMI's dispatcher in Pittsburgh. But then Burke went further. In June and early July he telephoned both the president of FMI, Jack Davis, and Jack Davis' nephew, Tony Davis (who man- ages FMI's Jacksonville operation), to express his irrita- tion with the change. (FMI admits that both Jack and Tony Davis are agents of FMI for purposes of the Act.) Burke had told his coworkers that he would be calling Jack and Tony Davis; those coworkers felt that, in doing so, Burke "was speaking for, pretty much, all the driv- ers";3 many of the Pittsburgh-based drivers considered Burke to be a leader of their group; and FMI's manage- ment knew that the Pittsburgh drivers considered Burke to be a leader. On the other hand none of the drivers asked Burke to make the calls, they did not authorize him to speak on their behalf, there is no indication that the other drivers themselves refrained from complaining about the changed policy because they knew that Burke was rais- ing the matters with management, and when Burke spoke about the toll money issue to FMI's management he did not indicate that he was speaking on behalf of anyone else.4 I must conclude, therefore, that when Burke spoke to FMI's management about the Company's changed policy regarding toll money, he was not engaged in protected activity. See Meyers Industries, 281 NLRB 882 (1986) (Meyers II), and 268 NLRB 493 (1984) Meyers I; see Mannington Mills, 272 NLRB 176 (1984). That does not end the matter, however, because in early July Burke and another driver together engaged in a different form of protest against FMI's changed toll- money policy. FMI's Pittsburgh-Jacksonville-Pittsburgh trips require two drivers. (One sleeps while the other drives.) Burke was scheduled to make the trip with co- driver Donald McElhaney. Burke proposed that they refuse to make the trip unless FMI provided the $10 in toll money, in advance. McElhaney agreed. Burke and McElhaney then stated their position to Barnhart (the Pittsburgh-based dispatcher; FMI admits that Barnhart is an agent of FMI for purposes of the Act). Barnhart re- sponded by giving $10 to the two drivers, and Burke and McElhaney did drive the run. Barnhart subsequently told Tony Davis about the epi- sode. s a Testimony of the General Counsel witness McElhaney, a Pittsburgh- based FMI driver. " Burke testified that during the course of his conversations with FMI's management he did say that he was speaking on behalf of other drivers. But the management personnel with whom Burke spoke testified that Burke spoke only about his own disagreement with the change, and I cannot find that the General Counsel carried the burden of persuasion on this issue. 6It appears that Burke and McElhaney thereafter drove the Pitts- burgh-Jacksonville run without demanding toll money in advance. The record does not tell us the reasons for their willingness to do so. Burke's and McElhaney's refusal to make an assigned run without receiving expense money in advance consti- tuted, of course, concerted protected activity. It was joint action engaged in for the purpose of mutual aid or protection as Barnhart, an admitted agent of FMI, knew. See, e.g., Meyers I and II, supra; Go-Lightly Footwear, 251 NLRB 42 (1980). B. FMI Disciplines Burke Barnhart doubles as a mechanic, handling flat tires and other minor maintenance problems encountered by FMI's trucks in the Pittsburgh area. But in the Main FMI's only maintenance and repair facility is FMI's garage in Jacksonville. FMI tries to have its mechanics run through a comprehensive maintenance checklist on each truck, once a month, at the garage. But due to the schedules imposed by the Postal Service contract, a truck used to make the Pittsburgh-Jacksonville-Pitts- burgh round trip cannot be kept in Jacksonville long enough for the mechanics to complete the checklist items. For that reason FMI sometimes requires the Pitts- burgh-based drivers to switch trucks in Jacksonville-the drivers leave in Jacksonville the truck they drove from Pittsburgh and drive north in another. On July 15 Burke and McElhaney began a trip to Jacksonville in truck 217. truck 217 was overdue for maintenance. Sidney Saunders is the foreman at FMI's Jacksonville garage. Trucks on the Pittsburgh-Jackson- ville-Pittsburgh run arrive in Jacksonville around 11 p.m. and leave about 1 a.m. The only person scheduled to be on duty in the garage during those hours of July 15-16 was mechanic Allen Harrell. Saunders accordingly told Harrell to tell Burke to switch to truck 214 for the run north. (Saunders did not testify why he told the mechan- ic to speak to Burke rather than, or along with, McEl- haney. But, as touched on earlier, FMI's management knew that Burke was a leader of the Pittsburgh drivers. Moreover, as between Burke and McElhaney, it is clear that Burke made the decisions.) Both Burke and McElhaney testified that no one told them to swap trucks during the course of their July 15- 16 run. According to Burke, in fact, he did not speak to anyone in FMI's Jacksonville facility that night because it was locked, with no one on duty, when he and McEl- haney pulled up to it. Harrell did not testify, and I have no reason to doubt either Burke's or McElhaney's testi- mony in this regard. Things looked very different, however, from Saunders' view point. When he arrived at FMI's facility on the morning of July 16, he saw that truck 214, which should have been en route north, was parked in the yard of FMI's Jacksonville facility; truck 217, which should have been in the yard, was not. Because Saunders believed that Harrell had told Burke to switch to truck 214, Saun- ders concluded that Burke had refused to make the swap. Saunders accordingly reported to Tony Davis "that Kenny [Burke] was told to swap the trucks out so we could service [217] and he wouldn't do it."s 6 Testimony of FMI witness Saunders. FREIGHT MOVERS 635 Tony Davis had long been irritated by what he consid ered a bad attitude on Burke s part The above dis cussed complaints and actions by Burke regarding toll money undoubtedly figured in that irritation But Burke s complaints and actions regarding FMI s trucks were Davis main focus FMI s trucks, although not unsafe are less than top notch Some of the trucks perhaps most, are defective in ways that make them uncomfortable to ride in and more difficult to drive than they should be (That may be a function of FMI s precarious financial position At the time of the hearing FMI was in the midst of a chapter 11 reorganization) Burke did not hesitate to tell FMI s man agement what he thought of FMI s trucks and what he considered to be FMI s below par maintenance and repair work on the trucks Moreover, when a truck Burke was driving broke down on the road, Davis be lieved, Burke often failed to help out as much as he should have which, in turn, sometimes delayed the arriv al of the truck at the Postal Service facility That was a particular problem because such delays threatened the continuation of the Postal Service contracts on which FMI s very existence depended Saunders report that Burke refused to swap trucks in furiated Tony Davis, coming as it did on top of Davis' preexisting irritation with Burke When Saunders spoke to Davis Burke and McElhaney were still on their way north as Davis knew So Davis telephoned Barnhart, telling Barnhart that Burke had been insubordinate and that Barnhart should have Burke call Davis `before he [Burke] went out on the next run 7 But Davis did not tell Barnhart why he thought that Burke had been insubordinate When Burke arrived home about 10 30 p in on July 16 he got a message to call Barnhart Burke did so Barn hart started the conversation by saving that he did not like telling Burke this but that Burke was not to take his next run and that he was to call Tony Davis immediate ly When Burke asked why, Barnhart said it was because Burke had been insubordinate Burke asked what Barn hart was talking about Barnhart, who did not know any thing about Burke's alleged refusal to swap trucks spec ulated out loud It was `probably ' said Barnhart, about the toll money a Burke heard that as fact, not specula tion At that point in the conversation either (1) Barnhart said that it sounded as though FMI was going to fire Burke or (2) Burke said that and Barnhart responded in a way that led Burke to believe that FMI was indeed going to fire him (In either case Barnhart s words were a product of further speculation on his part-in this case speculation about what happens to employees whom management considers to be insubordinate ) Burke then called Tony Davis Burke entered the con versation under the belief that it was going to be about his being fired for insubordination regarding toll money 7 The second quotation in the paragraph is from the testimony of FMI witness Barnhart Neither Davis nor Barnhart testified that Davis said anything to Barnhart about Burke being insubordinate But the testimony of Burke Barnhart and Davis taken together convinces me that Davis did use the word insubordinate in his telephone conversation with Barnhart 8 Testimony of FMI witness Barnhart Moreover Burke knew nothing about having interfered with FMI s truck maintenance plans by failing to switch from truck 217 bavis on the other hand, began the con versation under the assumptions that (1) Burke had delib erately failed to swap trucks in Jacksonville (2) Burke had to know that that was why Davis wanted to speak to him, and (3) Barnhart s conversation with Burke had been limited to telling Burke to call Davis As one might expect, the call did not go well Davis started the conversation Davis said that we need to get some things straightened out, and that Burke would not be allowed back in an FMI truck until Burke had a conference call conversation with Jack and Tony Davis Burke responded are you firing me for in subordination? Davis ducked answering that question After the call had gone on in that vein for a while, with Davis insisting that Burke call Jack Davis and Burke asking about being fired, Burke told (Tony) Davis that he was not going to call Jack Davis any time soon be cause he was going to be too busy filing unemployment claims and unfair labor paractice charges That raised Davis hackles and the conversation ended moments later 9 The next communication between FMI and Burke was a letter dated July 20 that Tony Davis sent to Burke It read Since we did not hear from you on Friday July 17, 1987 after our phone conversation on Thursaday night, I in giving you 5 days to respond to that con versation to either Jack or I If no response is heard in 5 days we have assume [sic] you have quit your position with Freight Movers, Inc Burke wrote back on July 24 stating In response to [FMI s] letter I would like to inform you that I did not give up nor did I quit my position with Freight Movers About the same time Burke called Jack Davis to say the same thing Davis told Burke to report back to work Burke did so and resumed driving for FMI on July 28 (Burke claims that he tried unsuccessfully to reach Jack Davis by telephone on July 18 But had Burke really been interested in reaching Davis, he could have )10 9 Burke applied for unemployment compensation for the days he missed work Pennsylvania s employment compensation agency rejected his claim on the ground that FMI did not suspend or discharge him and that dunng Burke s call with Tony Davis Davis told Burke that he was not being fired (R Exh I ) My finding that Tony Davis did not respond to Burke s question about whether Burke was fired thus conflicts with the findings of that agency 1s There is a real possibility that the telephone conversation between Davis and Burke would have gone much better had Barnhart not mistak enly ascribed FMI s demand that Burke speak to Tony Davis to the toll money Thus absent Barnhart s toll money comment Burke might have lost much less working time And when Barnhart referred to the toll money he may have been referring to Burke s protected activity of con certedly refusing to drive unless he received a cash advance to cover toll expenses But the parties have not litigated the question of whether that set of possibilities might constitute a violation of the Act by FMI Simi larly the parties have not litigated that question of whether Barnhart s statement to Burke regarding the toll money itself constitutes a viola tion of Sec 8(a)(l) 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. FMI's Discipline of Burke-Conclusion What triggered FMI's action against Burke was the belief on the part of FMI's management that Burke had refused an order to swap trucks in Jacksonville . Had that been the only basis of FMI 's action , it is clear that FMI would not have violated the Act, even though FMI's management erred in believing that Burke had refused to swap trucks. But Tony Davis probably would not have pulled Burke from his driving duties, even temporarily, had Davis not already been angry with Burke because of Burke's acts and complaints that, to Davis, represented a bad attitude on Bruke's part. And the event in which Burke and McElhaney refused to drive without getting toll money in advance-an action protected by the Act-undoubtedly was part of the mix that, in Davis' mind, spelled out "bad attitude." The question , however, is whether Davis would have reacted the same even absent that one protected action by Burke. My conclusion is that Davis would have. That is, FMI would have responded the same way to Burke on July 16 even had Burke and McElhaney never de- manded a cash advance for toll money. For one thing, Davis' irritation with Burke was the product of numer- ous communications and actions by Burke over a consid- erable period of time. There is no reason to believe that Davis' behavior would have differed absent any one of the various actions or communications by Burke that, collectively, led Davis to adopt the view that Burke had a bad attitude . More importantly, Davis seemed to me to be mainly concerned about Burke's complaints and ac- tions having to do with truck breakdowns and disrepair. There is no reason to believe that Davis considered Burke's behavior regarding the rolls money issue to be anything more than a minor nuisance. III. DID FMJ HARASS BURKE WHEN HE RETURNED TO WORK The General Counsel claims that FMI harassed Burke after he returned to work on July 28. According to the complaint FMI did that by assigning Burke to unsafe trucks and by failing to make necessary repairs in timely fashion to the trucks that FMI told Burke to drive. At the hearing and on brief the General Counsel limit- ed her contentions in this respect to the trucks that FMI gave Burke to drive. Prior to the events of July 16 through 28, Burke had almost always driven truck 217. After those events FMI never assigned truck 217 to Burke. And Burke claims that the trucks that FMI did assign to him were much less desirable than truck 217. About the time that Burke returned to work (on July 28) Barnhart did tell one of Burke's fellow drivers that FMI's management "would probably just make it so hard for Ken that he'd quit."1' But that was just more specu- lation on Barnhart's part. The record fails to show that, when FMI changed the trucks it assigned to Burke, it did so for other than routine operational considerations. Beyond that, even were I to start with an assumption that FMI changed Burke's truck assignments maliciously, I I Testimony of General Counsel witness, McKinley. the record would still fail to show that the basis of FMI's malice was Burke's protected activity. IV. DID FMI VIOLATE THE ACT WHEN IT SHIFTED THE ORIGIN OF ITS PITTSBURGH -JACKSONVILLE SERVICE TO JACKSONVILLE As noted at the beginning of this decision, when FMI first contracted with the Postal Service to provide serv- ice between Pittsburgh and Jacksonville (in both direc- tions), it operated the service from Jacksonville to Pitts- burgh and back to Jacksonsville. The Postal Service de- nominated the run from Pittsburgh to Jacksonville "route 801," and called the Jacksonville-Pittsburgh run "route 802." Routes 801/892 were operated daily. The Postal Service subsequently awarded FMI a con- tract to provide an additional four roundtrip runs per week between Pittsburgh and Jacksonville. The Postal Service called these runs routes 803 and 804. As also noted earlier in this decision, when FMI was awarded the contract for routes 803 and 804, FMI' s management decided to operate the routes with Pittsburgh-based driv- ers. FMI had two main reasons for doing so. The first was that the Postal Service's schedule for routes 803/804 was such that drivers serving that route had to take their days off in Pittsburgh. Thus drivers employed on routes 803/804 would have more time at home if they were based in Pittsburgh than if they were based in Jackson- ville. The second reason that FMI opted for Pittsburgh- based drivers for routes 803/804 was that the Postal Service frequently called on FMI to provide extra runs (in addition to the runs on routes 801, 802, 803, and 804) between Pittsburgh and Jacksonville. Most of those extra runs were for the carriage of mail southbound, from Pittsburgh to Jacksonville. Having a contingent of Pitts- burgh-based drivers made it easier for FMI to handle the extra runs promptly. In December 1987, however, FMI revamped the route 803/804 operation so that those routes too used Jackson- ville-based drivers. Thereafter FMI's Pittsburgh-based drivers handled only a scattered few extra runs.12 Burke filed the charge that began this proceeding in July 1987 and filed an amended charge in September. The General Counsel claims that it was those events, to- gether with Burke's other protected activity, that caused FMI to switch from Pittsburgh-based drivers to Jackson- ville-based drivers on routes 803/804. There is one piece of evidence that directly supports this contention. According to the testimony of Pitts- burgh-based driver Dan McKinley, in the course of a telephone conversation with Tony Davis, shortly after FMI announced the switch, McKinley asked Davis "if 12 Because of the Christmas mail rush, December was always a peak traffic period for FMI. FMI traditionally dealt with the Postal Service's additional demand for service during December by having its Jackson- ville drivers handle service on routes 803 and 804 (as well as 801 and 802), and having the Pittsburgh drivers handle the many extra runs re- quested during that period by the Postal Service. FMI followed this plan of action in 1987 but then did not switch back to Pittsburgh based drivers serving routes 803/804. FREIGHT MOVERS Ken [Burke] was the reason that we were losing our job Davis answered one bad apple s going to ruin it for all of us There is in addition, other evidence that can be read as supporting an inference that FMI had no appropriate reason for making the switch For one thing, the Postal Service had made no changes in routes 803/804 since their award to FMI Thus the schedules for 803 and 804 still resulted in lay overs in Pittsburgh, not in Jacksonville, so that Jackson ville based drivers on routes 803 and 804 would be away from home much more than Pittsburgh based drivers would be For another, FMI witness Jack Davis was not always convincing in his discussion of why FMI switched to Jacksonville based drivers Davis spoke of FMI s need for better maintenance for its trucks which in turn meant that FMI s trucks had to spend more time in the Jacksonville garage There is no doubt at all the FMI s trucks needed improved maintenance But when the General Counsel asked why FMI could not have han dled that by having Pittsburgh drivers switch trucks in Jacksonville, Davis could give no credible answer For all that, my conclusion is that when FMI decided to operate routes 803 and 804 with Jacksonville based drivers, it did so for reasons that had nothing to do with Burke I start with what I consider the inherent improbability of the General Counsels contention Given my under standing of the way employers generally conduct buss ness it is unlikely that FMI would significantly revamp a substantial part of its business because months earlier one employee had demanded that FMI furnish toll money in advance and then had filed an unfair labor practice charge covering about 2 weeks' pay (Of course if FMI s management was rabid on the subject of em ployees expressing their rights the probabilities would change But there is no evidence that that was the case at FMI ) Second FMI s center of gravity is in Jacksonville FMI has an office in Jacksonville and keeps many of its 637 records there, Tony Davis works in Jacksonville and FMI s only maintenance facility is in Jacksonville 13 Third, Davis was able to point to some cost savings that accrued from the switch Specifically Pittsburgh based drivers covered 50 or 60 miles more per Pitts burgh Jacksonville roundtnp than did Jacksonville based drivers (The reason trucks used by Jacksonville based drivers are kept at FMI s facility which is close to the Jacksonville bulk mail facility But the trucks used by the Pittsburgh based drivers were kept either at Barnhart's facility or at the drivers homes, all of which were 25 or 30 miles from the Pittsburgh bulk mail facility) That meant a saving for FMI of about $8 per roundtrip in fuel costs While that is not a lot of money, as discussed earli er FMI was in tough financial straits Last the fact of the matter is that since the switch FMI s trucks have been receiving their maintenance checks more frequently than they did when FMI operat ed routes 803 and 804 out of Pittsburgh That suggests that Jack Davis was not able to explain why he thought that the shift from Pittsburgh to Jacksonville would enable FMI to maintain its trucks better, that was a func tion of inarticulateness, not of dissembling On these findings of fact and conclusions of law and on the entire record I issue the following recommend edi4 ORDER The complaint is dismissed is The recordkeeping functions of FMI s Jacksonville office led to some confusion at the hearing Among the records that FMI kept in Jacksonville were notations of misbehavior on the part of its Pittsburgh based drivers FMI also has a Philadelphia office where it keeps some in formation on its drivers FMI brought its Philadelphia stored records to the hearing along with the file on Burke that FMI maintained in Jackson ville After reviewing those files counsel for the General Counsel con tended that they showed that Burke had been singled out for discipline But I credit FMI witness Tony Davis who said that the absence of disci plinary entries in the files of other drivers was due to the fact that FMI does not keep in its Philadephia files any records of misbehavior on the part of its Pittsburgh drivers 14 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses