Injected Rubber Products Corp

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Injected Rubber Products Corp and Local 1, United Food and Commercial Union Workers, AFL- CIO. Cases 3-CA-9684, 3-CA-9894, and 3- RC-7801 28 September 1984 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 30 September 1981 the National Labor Rela- tions Board issued its Decision and Order in the above-entitled proceeding 1 in which it affirmed the rulings, findings, and conclusions of the administra- tive law judge that the Respondent had engaged in certain unfair labor practices in violation of Section 8(a)(3) and (1) of the National Labor Relations Act and ordered that the Respondent cease and desist therefrom and take certain affirmative action to remedy the unfair labor practices 2 Subequently, on 29 September 1982, the Board filed an application for enforcement with the United States Court of Appeals for the Second Circuit On 23 November 1982 the Board withdrew its application Upon its own motion, the Board decided sua sponte to reconsider its Decision and Order and to remand Cases 3-CA-9684 and 3-CA-9894 to Judge Stephen J Gross for consideration in light of the Board's decision in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) The Board re- manded the case to Judge Gross to make findings of fact, resolutions of credibility, and conclusions of law concerning material issues regarding the al- legation that the Respondent violated Section 8(a)(3) and (1) by discharging employees Harry Drake and Bruce Karls because of their support for the Union On 25 March 1983 Judge Gross issued the at- tached supplemental decision The Respondent filed exceptions and a supporting brief, and re- newed the exceptions that it filed to the judge's ini- tial decision and order The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the initial and supple- mental decisions and the record in light of the ex- ceptions and briefs and has decided to affirm the ' 258 NLRB 687 (1981) 2 On 12 May 1982 a Certification of Results of Election issued in Case 3-RC-7801 in which it was certified that a majority of the valid ballots were not cast for the Union By Supplemental Order dated 3 June 1982, the Board dismissed an 8(a)(5) allegation of the complaint in this proceed- ing judge's rulings, findings, and conclusions 3 only to the extent consistent with this Decision and Order I DRAKE'S DISCHARGE The relevant facts may be set out briefly Drake was the most active employee in a spring 1979 or- ganizing campaign by the Amalgamated Clothing and Textile Workers Union (ACTWU) The ACTWU lost that election In the spring of 1980,4 Drake again involved himself in union organiza- tional activity In early March, an organizer from another union—Local 1 (the Union)—contacted Drake to propose a campaign Drake agreed to engage in organizing, and immediately signed a union authorization card, handed out authorization cards to employees on all three shifts at the Re- spondent's facility, and encouraged employees to attend an organizational meeting which was to be held in the near future Drake had been employed by the Respondent as a press operator on the second shift since Septem- ber 1977 Drake was not a model employee As de- tailed in the judge's initial decision, Drake's inter- ests in horseracing impeded his work, Drake suf- fered from heat and fumes, leading him to spend time away from his press in securing first aid, he could not learn to operate the presses without burning himself, and his ability to clean and pack parts was "way below par" Drake's production levels were also below par Drake's production de- ficiencies also adversely affected employee morale First, since employees received a production bonus based on plantwide production, employees believed Drake's performance hindered overall production, and thus affected their bonus Second, employees assigned to difficult presses were unable to switch to easier presses because of Drake's performance deficiencies In January, approximately 2 months before Drake again became involved in union activity, management began to focus on Drake's problems Nash, Drake's leadman, spoke to Plant Superin- tendent Kohr about Drake's low production The superintendent told Nash to talk to Drake about his problems and to move Drake more often from one press to another Nash followed instructions and spoke to Drake about his production several times during the period from January through March Nash told Drake that Drake's performance was below that of another operator, and at least once Nash told Drake that the plant superintendent had 3 In his initial decision, the judge relied on PPG Industries, 251 NLRB 1146 (1980), in finding coercive interrogation by the Respondent We note that the Board overruled PPG in Rossmore House, 269 NLRB 1176 (1984) and we do not rely on it here 4 All dates hereinafter are in 1980 unless otherwise indicated 272 NLRB No 63 INJECTED RUBBER PRODUCTS 419 told Nash to tell Drake to get production levels up Drake responded on one occasion by saying that the plant superintendent should speak for himself, and on another occasion Drake told Nash that "he didn't want to hear that shit" James Huff, owner and general manager of the Respondent, was also concerned about production and morale problems at the plant On 18 March, his first day back at the Respondent's facility after several weeks of vacation, Huff spoke with the Re- spondent's bookkeeper concerning these problems The bookkeeper stated that there were some feel- ings among employees that some press operators were not fulfilling their duties, the bookkeeper spe- cifically mentioned Drake by name Huff then spoke to the Respondent's quality control manager and this manager also mentioned Drake as an em- ployee whose performance was "particularly bad" Huff also spoke to Plant Superintendent Kohr and Kohr reiterated what the quality control manager and the bookkeeper had told Huff about Drake's performance When leadman Nash arrived at the plant Huff questioned him about Drake's perform- ance Nash told Huff that Drake's attitude was bad, his production was not increasing, and he was not responding to warnings Nash repeated to Huff Drake's response to the warnings, i e, that Nash "didn't want to hear that shit" At that moment, Huff concluded that Drake had decided he did not have to work and that he would not respond to in- structions Huff decided to terminate Drake Huff and Kohr then drafted a discharge letter and Drake was discharged on 18 March In his initial decision, the judge concluded that Drake's conduct "clearly merited some kind of dis- ciplinary response by the Company" However, the judge concluded that Drake's discharge violated Section 8(a)(3) and (1) of the Act The judge found many factors that he believed indicated Drake's discharge was related to his union activity He noted Drake's known union actions, the Respond- ent's union animus (discussed below), the timing of the discharge, the Respondent's long tolerance of Drake's performance, the Respondent's alleged fail- ure to follow a progressive disciplinary policy, an alleged disparity in the reasons given or Drake's discharge, and the fact that Drake was the only nonprobationary employee terminated by the Re- spondent In his supplemental decision, the judge reaffirmed his conclusion, and the above facts, and further concluded that the Respondent had not shown it would have fired Drake absent his con- certed protected activity We do not agree The undisputed facts show that in January, prior to Drake's involvement with the Union, the Re- spondent began focusing on Drake's problems There is no showing that this focus was based on discriminatory motives Indeed, although manage- ment had been against the ACTWU in the 1979 campaign, 5 there was no discrimination at that time against Drake or any other prounion employee in- sofar as the instant record reveals Thus, the fact that Drake's performance in 1980 was no different than it was from 1977 until 1980 is of no probative value in determining whether Drake's discharge was violative of the Act, since the inquiry into Drake's conduct was nondiscriminatory Further, it is undisputed that Drake had an adverse effect on employee morale and did not respond favorably to the Respondent's attempts to improve his perform- ance And, as the judge found, Drake's statement that "he didn't want to hear that shit" was the kind of remark that would lead Huff to decide that Drake would be unwilling to correct his problem 6 Under Wright Line, supra, the General Counsel bears the burden of establishing a prima facie case of discrimination The burden then shifts to the re- spondent to demonstrate that the same action would have taken place absent discriminatory mo- tives However, the Board further noted in Wright Line that (251 NLRB at 1088, fn 11) [T]his shifting of burdens does not undermine the established concept that the General Coun- sel must establish an unfair labor practice by a preponderance of the evidence The shifting burden merely requires the employer to make out what is actually an affirmative defense to overcome the prima facie case of wrongful motive Such a requirement does not shift the ultimate burden Based on the facts cited above and the record as a whole, we conclude that the General Counsel has not established by a preponderance of the relevant 5 Dunng the 1979 organizing effort Huff indicated to the plant supenn tendent that he would close the plant before letting the plant go union Also dunng the 1979 campaign third-shift leadman Parker stated to an other employee that it was just a matter of time before Drake would be fired because of Drake's union activities However, Drake suffered no discnmmation because of the 1979 campaign Parker's comments, as noted by the judge, could well be the 'gratuitous mouthing' of an indi- vidual who had no actual knowledge of management's position" These facts do not go far in helping to determine the lawfulness of Drake's 1980 discharge 6 In this regard, the Respondent's reasons for discharging Drake did not shift dunng the course of this proceeding, nor did the Respondent really deviate from its discipline procedure Drake's discharge letter inch cated he was terminated because he had "no intention of improving [his] output" This reference is consonant with the Respondent's reason for discharging Drake, i e, his poor attitude and inability to perform his job as expected As to the procedure used in terminating Drake, it may be noted that Drake had been warned several times by Nash, and that the Respondent was reacting to Drake's refusal to cooperate There is little comparative basis to analyze the Respondent's procedures, since no regu lar employee had previously been discharged, nor had any employee acted as Drake had 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence that the Respondent discharged Drake in violation of Section 8(a)(3) and (1) of the Act Simply stated, Drake's union activity was merely contemporaneous with the legitimate investigation by the Respondent into production and morale problems Assuming that there is sufficient evi- dence to support a prima facie finding of discrimi- nation, the facts indicate that the Respondent's de- cision to discipline Drake was based on consider- ations wholly apart from union motivation Ac- cordingly, we find that the Respondent did not dis- charge Drake in violation of the Act II KARLS' DISCHARGE The election at the Respondent's facility was held on 17 June Bruce Karls was a third-shift em- ployee who operated presses On 23 June the ma- chine on which Karls was working began to act up Throughout much of June this particular press had malfunctioned Karls attempted to get the press back into production but was unsuccessful Karls then decided to use the emergency stop switch to stop the machine However, Karls had lost his temper He hit the emergency stop button twice with his fist instead of simply pushing it In so doing, although he did not intend to do so, Karls broke the switch Parker, Karls' leadman, was in the vicinity at this time and saw Karls hit the switch Parker spent about half an hour repair- ing the machine at which Karls had been working After repairing the press, Parker told Karls, "I hope you don't get in any trouble about this" Just a week prior to this incident owner Huff had appointed a new plant superintendent, Chad- wick Chadwick called Huff about the Karls inci- dent and explained to Huff that Karls had "pur- posely damaged a machine" Chadwick wanted to discharge Karls but Huff inquired as to how fla- grant Karls' actions were Chadwick then investi- gated the incident further Chadwick interviewed Karls on 27 June During the interview, Karls ad- mitted that he had been angry when he hit the emergency stop button, that the switch broke as a result of his hitting it, and that he had a quick temper Chadwick indicated that he hoped that Karls would not lose his job because of the inci- dent Chadwick then again spoke to owner Huff about the incident, relaying the fact that Karls ad- mitted that he had lost his temper and hit the ma- chine several times, and that Karls had broken the machine Huff agreed with Chadwick that if Karls were not fired, Chadwick, as the new plant super- intendent, might not be able to maintain discipline at the plant because he did not treat Karls in ac- cordance with plant rules The Respondent had old and new plant rules that forbade the deliberate damage to company property 7 Additionally, the Respondent had recently suffered some incidents of vandalism The Respondent had sent notices to em- ployees on 22 May stating that it would not toler- ate the deliberate damage or destruction of compa- ny property Thus, the Respondent decided to dis- charge Karls On 30 June Karls received a letter indicating that he was discharged as of that day The letter indicated that Karls' discharge was pursuant to the plant rule providing for immediate discharge of employees who deliberately damaged company property Karls spoke with Chadwick about the discharge Chadwick indicated that there really was no damage to the machine and that Karls' pro- duction record was a fine one, but that Karls was still discharged pursuant to the Respondent's rules The judge found that Karls' discharge was viola- tive of the Act In his initial decision, the judge relied on the evidence of animus discussed above with respect to Drake's discharge As to Karls spe- cifically, the judge noted that prior to the election leadman Parker interrogated Karls about who was going to vote for the Union Also, after the elec- tion, Parker asked Karls who had voted for the Union Parker asked if Karls had voted and Karls replied, "Yes" Parker asked Karls if Karls knew if anybody else did, Karls then told him it was none of Karls' business The judge further noted that a few days after Karls' discharge, Karls complained to Parker about the incident and Parker responded, "Well, we're going to show everybody that we don't want a Union in there" Against this back- ground, the judge found that the Respondent's as- serted reasons for Karls' discharge were pretextual and that he was actually discharged for his union association The judge found that the damage Karls did to the press was trivial and not willful, that Parker had interrogated Karls about the Union and told him that he was discharged for his support for the Union, and that the Company probably had knowledge of Karls' union association In his sup- plemental decision, the judge concluded that the Respondent had not demonstrated it would not have fired Karls absent his protected activity, and he thus reaffirmed his initial conclusion We do not agree that the Respondent violated the Act concer- ing Karls 7 A new rule relating to the damage of property which had been adopted after the 17 June election and under which Karls was dis charged, had been alleged by the General Counsel to violate Sec 8(a)(5) of the Act As noted at fn 2, supra, the Board dismissed this allegation since the Union did not receive the majonty of the votes cast in the elec tion The only difference between the new rule adopted after 17 June and the prior plant rule relating to damaged property was that the new rule, unlike the old rule, actually specified immediate discharge as a penalty for deliberate damage to company property INJECTED RUBBER PRODUCTS 421 The facts indicate here that Karls was the sub- ject of a nondiscriminatory "get tough" policy on the part of the Respondent This policy was estab- lished when the Respondent installed a new plant superintendent, Chadwick There was no showing that the hiring of Chadwick was discriminatory or that the implementation and enforcement of the rules were discriminatory Karls was not active in the organizing effort and the Respondent's knowl- edge of his support for the Union was clearly limit- ed to, at best, knowing he voted for the Union 8 Moreover, as the judge noted, Parker was the only one to suggest Karls was discharged for his sup- port for the Union Parker had no authority to fire employees or even to recommend effectively action of that nature Whether Parker's comments were the "gratuitous mouthing" of an agent of the com- pany or some other unmotivated comment is of no avail in solving this case More simply put, the facts do not demonstrate a violation of the Act Accordingly, we dismiss this allegation of the com- plaint as well ORDER The National Labor Relations Board orders that the Respondent, Injected Rubber Products Corp, Albion, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees concerning their union or other protected activities (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Post at its Albion, New York facility copies of the attached notice marked "Appendix "9 Copies of the notice, on forms provided by the Re- gional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to 8 Contrary to our colleague's assertion, there is no evidence that the Respondent suspected Karls was Involved in more union activity than the record demonstrates That the Respondent may have interrogated Karls as to his knowledge of how employees voted does not indicate that the Respondent believed Karls was involved in union activity to an extraor- dinary degree g If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na [tonal Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board" ensure that the notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply MEMBER ZIMMERMAN, dissenting I dissent from my colleagues' reversal of the judge's finding that the Respondent violated Sec- tion 8(a)(3) of the Act by discharging employees Harry Drake and Bruce Karls 1 For the reasons stated by the judge in his decision, I find that the General Counsel established a prima facie case that the discharge was motivated by the employees' union activities and that the Respondent failed to establish that it would have discharged the employ- ees in the absence of those activities Briefly stated, the record revealed that although Drake was a problem employee who may have le- gitimately received some form of discipline, the Respondent would not have discharged Drake absent his union activities Specifically, the undis- puted evidence established that the Respondent did not follow its progressive disciplinary policy in dis- charging Drake, that it had never discharged a nonprobationary employee, that it gave shifting reasons for the discharge, and that it had long tol- erated Drake's poor performance Further, the midweek discharge was unusually abrupt in light of Drake's longtime employment Coupled with these factors was evidence of the Respondent's union animus the discharge occurred within 2 weeks of Drake's spearheading of the Union's organizational campaign Also, in 1979, in reference to Drake's in- volvement in a previous, unsuccessful union cam- paign, leadman Parker told an employee, "it was just a matter of time before [Drake] was to get fired", and in 1980 after Drake and Karls were dis- charged, Parker stated, "We are going to show ev- erybody that we don't want a union in there" Under these circumstances, the judge correctly concluded that the Respondent discharged Drake at least in part because of his union activities and that the Respondent did not demonstrate that it would have taken the same action in the absence of these activities Accordingly, I find Drake's dis- charge violative of Section 8(a)(3) and (1) As to Karls' discharge, the judge found that the Respondent's asserted reason for discharging Karls was pretextual and that the true reason for the dis- charge was Karls' union activities In this regard, the evidence established that Karls was a "reliable and productive" employee, who, in a momentary ' I join them in adopting the judge's finding that the Respondent vio lated Sec 8(a)(1) of the Act by interrogating Karls 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fit of temper, unintentionally broke the emergency stop switch on a machine by hitting it harder than he should have Although the Respondent ac- knowledged that the damage done by Karls was trivial, it discharged him allegedly because of its new rule providing for discharge of employees who deliberately damaged company property However, the record revealed the pretextual nature of this asserted reason First, the Respondent exhibited animus toward Karls' union activities 2 Before the election lead- man Parker interrogated Karls about who was going to vote for the Union, and after the election Parker questioned Karls about who had voted for the Union In fact, Parker asked if Karls had voted for the Union, and Karls said that he had More- over, a few days after Karls' discharge when Karls complained to Parker about his discharge, Parker responded, "Well, we are going to show every- body that we don't want a union in there" Further, the two company officials who were in- strumental in the Respondent's decision to dis- charge Karls did not testify Thus, in light of the clear evidence of union animus, the Respondent failed to establish that its new rule was the basis for its decision to discharge Karls, or that it would have discharged Karls even in the absence of his union activities Accordingly, I find that the Re- spondent violated Section 8(a)(3) and (1) by dis- charging Karls For these reasons I dissent from my colleagues' dismissal of the 8(a)(3) allegations in the complaint 2 The fact that Karls was not as active in the union campaign as the Respondent may have suspected is irrelevant The Respondent dis- charged Karls because It believed Karls was engaged in union activity, and this unlawful action is in no way excused because the Respondent's belief was mistaken APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT interrogate you about your union or other protected activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act INJECTED RUBBER PRODUCTS CORP SUPPLEMENTAL DECISION STEPHEN J GROSS, Administrative Law Judge In JD- 201-81 I concluded, among other things, that Respond- ent Injected Rubber Products Corporation (IRPC) had unlawfully terminated its employment of employees Harry E Drake and Bruce Karls (I will hereafter refer to that decision as the "initial decision ") The initial deci- sion was adopted by the Board 258 NLRB 687 (1981) Subsequently, however, the Board decided, sua sponte, to remand the case to me for consideration in light of Wright Line 1 By Order dated February 4, 1983, I stated my tenta- tive view that a supplemental decision responsive to the Board's remand Order could and should be based on the then existing record and that any party who believed ad- ditional hearings were required should so advise me No one responded to that order The initial decision concludes that while IRPC argu- ably had proper cause to fire Drake and Karls, IRPC in fact discharged them "because of their membership in the support" for a union But the initial decision does not specifically deal with the question that is the focus of Wright Line whether the Company would have fired the employees "even in the absence of (their) protected con- duct " 2 The remainder of this Supplemental Decision deals with that question Drake's Discharge The initial decision discusses at some length those ele- ments of Drake's behavior that troubled IRPC's manage- ment See 258 NLRB at 693-695 No purpose would be served by repeating the discussion here It is clear that in view of that behavior Drake would have drawn some form of discipline even had he not been connected in any way with a union The question is whether, absent his union activity, he would have been fired The evidence on point cuts both ways On the one hand (1) Drake was a subpar employee, (2) IRPC's owner, James Huff, believed that Drake's behavior and low output were adversely affecting employee morale, (3) Huff had reason to believe that Drake had been warned about his low output and had responded by tell- ing his leadman that he was not willing to listen to the leadman's criticism, and (4) there was nothing about the demeanor of IRPC's witnesses that would suggest that their testimony was inaccurate On the other hand, IRPC did not follow its usual pro- gressive disciplinary procedures in firing Drake, the rea- sons IRPC gave to Drake about why he was fired were demonstrably inaccurate and, moreover, did not wholly square with the reasons the Company gave at the hear- ing, the Company had never previously fired a nonpro- bationary employee, Drake's discharge was closely tied chronologically to his organizing activities, and Drake's discharge was very abrupt, particularly in view of his long-time employment by IRPC 1 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) The Board's remand Order is dated January 27, 1983 2 251 NLRB at 1089 INJECTED RUBBER PRODUCTS 423 As I add up these two sets of facts, neither set out- weighs the other Thus the evidence proves neither that IRPC would have fired Drake even had he not engaged in union activity nor that IRPC would have retained Drake but for his union activity In these circumstances the outcome hinges on burden of proof Wright Line is specific in that respect Where, as here, the General Counsel has shown that an employer's decision to fire an employee was based at least in part on the employee's protected activity, "the burden shifts to the employer to demonstrate that the decision would have been the same in the absence of protected activity" 251 NLRB at 1087 Since, as discussed in the initial decision, IRPC fired Drake at least in part because of Drake's union activity, and since IRPC has not shown that it would have fired Drake even absent that activity, I conclude that IRPC's discharge of Drake violated Section 8(a)(3) and (1) of the Act Karls' Discharge The facts of Karls discharge are set out in the initial decision, 258 NLRB at 697-698 In Karls' case, depend- ing on the interpretation given to one of IRPC's work rules, Karls' discharge was in keeping with those rules But the rule was susceptible to other interpretations, and it is undisputed that Karls had been a productive, reliable employee As in Drake's case, the General Counsel proved that Karls' discharge was based at least in part on Karls' prounion stance The question is whether, if Karls had not been prounion, the work rule at issue would have been interpreted differently and whether IRPC would have taken into account Karls' good record IRPC faces two problems here One is that IRPC had never before cited the rule in firing an employee, so there is no comparison against which to judge IRPC's treatment of Karls The second is there was no testimony from the only two persons who could have provided firsthand information about why IRPC fired Karls It was IRPC's plant supervisor who urged Huff to fire Karls And the plant supervisor's actions were based in part on the description of the event leading to Karls' dis- charge that was provided by Karls' leadman Neither the plant supervisor nor the leadman testified (The plant su- pervisor had left IRPC's employ prior to the hearing The leadman was still working for IRPC at the time ) Huff testified about Karls' discharge And again, there was nothing about Huff's demeanor that would call into question the accuracy of his testimony But Huff's ap- proval of Karls' discharge was based on what he felt was a need to support the plant supervisor And Huff had not been given the complete facts of the incident It could be that had the plant supervisor and the lead- man testified, their testimony would have shown that Karls would have been fired even had he not been known to be prounion But they did not testify, and absent that testimony there is no way of knowing, one way or the other, if Karls would have been fired absent his protected activity That brings us back to the burdens of proof established in Wright Line And since (1) the General Counsel did prove that Karls' discharge stemmed at least in part from his protected activities, and (2) IRPC did not prove that it would have fired Karls even absent those protected activities, I conclude that IRPC's discharge of Karls violated Section 8(a)(3) and (1) of the Act 3 2 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