Local Union No. 226

National Labor Relations Board - Board Decisions

Jan 27, 1982

259 N.L.R.B. 1244 (N.L.R.B. 1982)

1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 226, International Brotherhood of following appropriate unit for the purposes of col-
Pottery and Allied Workers, Seafarers' Interna- lective bargaining with respect to rates of pay,
tional Union of North America, AFL-CIO and wages, hours of employment, and other terms and
Colton-Wartsila, Inc. conditions of employment:
Colton-Wartsila, Inc. and Local Union No. 226, In- All production and maintenance employees
ternational Brotherhood of Pottery and Allied
Workers, SIUNA, AFL-CIO, Petitioner. Cases employed by the Employer at its facility locat-
31-CB-3966 and 31-RC-4863 ed at 330 W. Citrus Street, Colton, California,
92324; excluding all other employees, includ-
January 27, 1982 ing office, clerical, accounting, technical and
professional employees, employees represented
DECISION, ORDER, AND by labor organizations other than the Petition-
CERTIFICATIN OF er, watchmen, guards and supervisors as de-
~~~REPRESENTATIVE pfined in the Act.
BY MEMBERS FANNING, JENKINS, AND DECISION
ZIMMERMAN
On November 2, 1981, Administrative Law STATEMENT OF THE CASE
Judge William J. Pannier III issued the attached WILLIAM J. PANNIER III, Administrative Law Judge:
Decision in this proceeding. Thereafter, the Charg- This matter was heard by me in San Bernardino, Califor-
ing Party-Employer filed exceptions and a support- n ia, on August 4, 1981. On December 19, 1980,' the Re-
ing brief, and the Respondent-Petitioner filed an gional Director for Region 31 of the National Labor Re-
a n 'brief. lations Board issued a complaint and notice of hearing,
answering oe. based on an unfair labor practice charge filed on October
Pursuant to the provisions of Section 3(b) of the 31, alleging a violation of Section 8(b)(1)(A) of the Na-
National Labor Relations Act, as amended, the Na- tional Labor Relations Act, as amended, 29 U.S.C. § 151,
tional Labor Relations Board has delegated its au- et seq., herein called the Act. On that same date, the said
thority in this proceeding to a three-member panel. Regional Director issued a report on objections, an order
The Board has considered the record and the at- consolidating cases, and an order directing hearing and
tached Decision in light of the exceptions and notice of hearing, finding that one objection to conduct
briefs and has decided to affirm the rulings, find- affecting the results of the election conducted in Case
ings,' and conclusions of the Administrative Law 31-RC-4863 could best be resolved through a hearing
Judge and to adopt his recommended Order. and, as that objection concerned the subject matter al-
ready included as an allegation in the complaint issued in
ORDER Case 31-CB-3966, consolidating the two cases for hear-
ing and decision. All parties have been afforded full op-
Pursuant to Section 10(c) of the National Labor portunity to appear, to introduce evidence, to examine
Relations Act, as amended, the National Labor Re- and cross-examine witnesses, and to file briefs. Based on
lations Board adopts as its Order the recommended the entire record, on the briefs filed on behalf of the par-
Order of the Administrative Law Judge and ties, and on my observation of the demeanor of the wit-
hereby orders that the complaint be, and it hereby nesses, I make the following:
is, dismissed in its entirety. FINDINGS OF FACT
CERTIFICATION OF
REPRESENTATIVE 1. JURISDICTION
At all times material, Colton-Wartsila, Inc., herein
It is hereby certified that a majority of the valid called the Employer, has been a corporation duly orga-
ballots have been cast for Local Union No. 226, In- nized under and existing by virtue of the laws of the
ternational Brotherhood of Pottery and Allied State of California, with an office and place of business
Workers, Seafarers' International Union of North located in Colton, California, where it has been engaged
America, AFL-CIO, and that, pursuant to Section in the manufacture and sale of sanitary ware. In the
9(a) of the Act, the said labor organization is the course and conduct of these business operations, the Em-
exclusive representative of all the employees in the ployer annually sells and ships goods or services valued
in excess of $50,000 directly to customers located outside
. _.~1 r> r- i .i 1.1 ~ the State of California. Therefore, I find, as admitted inThe Charging Party-Employer has excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's estab- the answer, that at all times material the Employer has
lished policy not to overrule an administrative law judge's resolutions been an employer engaged in commerce and in a busi-
with respect to credibility unless the clear preponderance of all of the ness affecting commerce within the meaning of Section
relevant evidence convinces us that the resolutions are incorrect Stand- 2(2), (6), and (7) of the Act.
ard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings. Unless otherwise stated, all dates occurred in 1980.
259 NLRB No. 175
ing
i i t
l t
t l i te ance
i l lli epod by the Epy at it facilit la
n;kes i CITM , CI r, \ D,,*!*; r, i f ilit l t-

e d a t 3 30 . it r u s S t r e e t , o l ton, California,
DECISION, ORDER, AND r f i l l s, l s r res t l i ti t r t t titi -C E R T I F I C A T IVE r, t , r i
REPRESENTATIVE fin
, ECISI

.
ia , , . , ,' t -
D ir e c t o r
answer ng i l i t ti f ri ,
i gt h v s e 3 h s f i l r ctice r file ct er
s t , ll i i l ti ti l t

i

I
a n d a s t h a t l
i it ti t . FINDINGS OF FACT
I I
REPRESENTATIVE ~~~~~~~~~1. JURISDICTION

' ll i r i l
, _.~1 r> r- i i. A -i ~the ,
'The t1iTnd 1

e
ll

), d

s ocat-the o
rin a di
LOCAL UNION NO. 226 1245
II. THE LABOR ORGANIZATION INVOLVED at the Colton facility, which at this time was being oper-
ated by the Employer. As a result of this campaign, Re-At all times material, Local Union No. 226, Interna- ted b the ploe. As a rest o ts caan, Re-
spondent filed the petition in Case 31-RC-4863 ontional Brotherhood of Pottery and Allied Workers, Sea- s i ii i
farers' International Union of North America, AFL- August 14, and an election was scheduled for October
CIO, herein called Respondent, has been a labor organi- 16. During the preceding week, Perazzo was distributing
zation within the meaning of Section 2(5) of the Act. handbills to employees at the Colton facility. When one
was offered to Ele, the latter complained about his fail-
IIl. CHRONOLOGY OF EVENTS ure to have received strike benefits from Respondent
during the 1979 strike. Perazzo, who was unfamiliar with
The sole issue presented in these consolidated cases is Ele and with the events of that strike, promised to inves-
whether, during a conversation on October 15, kiln oper- tigate Ele's assertion and to ensure that Ele received the
ator Richard Ele had been told, by International Repre- amount which he claimed as strike benefits if it turned
sentative Jesse Garcia and by Tenth Vice President out that he was indeed entitled to it.
Thomas B. Perazzo, 2 that Respondent would, in essence,
Later Perazzo described the incident to Garcia who,
pay $600 to Ele if he would support Respondent in the a ar ih te evens ncidn to Garcia who
unfamiliar with the events surrounding the 1979 strike,
representation election scheduled for October 16 in Case . .
31-RC-4863 and, additionally, if he would persuade checked Respondent's records, ascertaining that Ele had
other employees to do likewise. Before addressing the not received strike benefits during the strike because his
evidence directly pertaining to that issue, certain back- dues had not been paid Garcia, accompanied by Per-
ground events must be explained. azzo, then journeyed to Ele's home, but on that occasion
Ele had commenced working at the Colton facility, Ele was not there. Respondent's two representatives re-
now operated by the Employer, in 1954 when operations turned to Ele's home on October 15, the day before the
there were conducted by Colton Manufacturing, Inc., election. On that date, they did have an opportunity to
the Employer's predecessor. At some point in time, Re- speak with Ele and it is that conversation that is the sub-
spondent had become the bargaining representative of ject of the complaint and is the only one of the Employ-
the employees in a production and maintenance unit at er's objections that has been consolidated for hearing in
the Colton facility. Ele became a member of Respondent, this proceeding.
and monthly dues were deducted from his paycheck. With regard to this conversation, Ele testified that
However, in January 1978, Ele had become a foreman, a while he had been working in the yard of his home, cut-
nonunit position, and had obtained a withdrawal card ting glass to replace missing panes in his garage window,
from Respondent. Ele continued to serve as a foreman Garcia and Perazzo had driven up and had walked over
until October 1978 when, at his own request, he again to where he was working. Initially, according to Ele,
became a kiln operator. He testified that, following his Garcia had explained that Respondent's records dis-
return to this bargaining unit position, he had made ef- closed that Ele had not been eligible to receive strike
forts to rescind the withdrawal card that he had execut- benefits because he had not been paying dues, but then
ed and to resume again his full membership status in Re- had added that Ele deserved the money because he had
spondent. Due to apparent inadvertence, however, dues worked in a union shop and had promised, "We'll get
were not deducted from Ele's paychecks after his return you the pay-we can get your pay." Ele testified that
to the unit. when he had pointed out that Sam Fullerton3 had said
Ele testified that he had not become aware that his that Ele could not obtain the money, Garcia had replied
dues were not being deducted until Respondent went on that Fullerton "isn't here now. He's out of it," that Inter-
strike against Colton Manufacturing, Inc., from February national President Lester Null "is out here now in this
1 to June 4, 1979. Ele participated in that strike and area and we'll go see him and see whether we can get
while it was in progress, he learned that Respondent did some money for you," and that "[w]e can get some
not consider him eligible to receive strike benefits be- money for you now but, after the election, we can get it
cause it had received no dues from him during the all after the Union gets in." Garcia added, "We know
period after he had ceased being a foreman. Neverthe- we've got the election won, but a little insurance don't
less, Ele continued participating in the strike for its dura- hurt. . . . Do you have any friends that would vote for
tion and, in the ordinary course of affairs, would have the Union?" 4 Ele replied that he had a lot of friends who
received $600 in total strike benefits had he been consid- would do so if Respondent treated them "right." Then,
ered eligible to receive them. he mentioned that he was owed $750 for strike benefits,
As a result of a decertification petition, filed by em- but Garcia responded that the correct amount was $600.
ployee Fedor Benic, on September 10, 1979, a majority When Ele again expressed skepticism about being paid,
of the employees in the production and maintenance unit Garcia replied, according to Ele, "Well, we'll get you
at the Colton facility voted against continued representa- some now. We'll go see Mr. Null and we'll get you some
tion by Respondent in an election conducted on October and we'll give you the rest after the Union gets in."
12, 1979. However, the matter did not end there. In Both Garcia and Perazzo denied expressly that the
June, Respondent commenced a new campaign to orga- former had promised cash or strike benefits to Ele if he
nize the production and maintenance employees working
3
Sam Fulleerton was an official of Respondent at the time the strike
' It is admitted that at all times material Garcia and Perazzo had each had been in progress
been an agent of Respondent, acting on its behalf, within the meaning of
4 Ele testified that Garcia and Perazzo "mentioned about my friends
Sec 2(13) of the Act several times" during this conversation

. „ .-IT i IT * ^-i -i-i~c *ated a E.y . a
, n i i. .r n -i *ir j ir i th p n C 31iRC-483o
f r rs' I t r ti l i f rt ri , -
A u g u st 14 , a nd a n ele c t o n w as l
fo r O c t o b er
i l t, l r i-
16 . ri t h e Pr c di eek, erazzo as distributing
ti i ti
h an db il l s t o l ili .
l
t i ili i
l
t r, ri ti t , il l i
t i l t l , I t r ti l epre- a ount hich he clai ed as strike benefits if it turned
t ti Jesse rci and by Tenth ice President out that he was indeed entitled to it.
. ,- t t t , i , Lt P d ib th ice t Gri who,,,,„„ . ,, ., , ,,' „ , . . , i
t l i l t t i .a . w s u 1979 srk,* ... ,.. . , ,,. ," . i. i. * <- o ing
t ti l ti l t i c R record, a i. t E had
iti a ly, f notrchecked t rt i i
other e ployees to do likewise. Before addressing the td s v t benefits du.rng the strike becauserh-s
i i tl t i i t t t i , t i d w s ha d n ot i j i , i
l i . az z o th e " J r s i
ili , t ti r -
t tu r n e d t o
l ti . t t t , t i an rt it to
' sor. i ti
i i nt ti i l
ti i ' j i t t li t f r ri i
ili . t, t h is i
3

l r i
3
ll t l
'Ele ti
. t.several
iat
/-
To
l
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would vote for Respondent in the election. Moreover, think we talked about $500 or $600." After examining his
both of them denied that Ele had been promised cash or pretrial examination, Hudson added that Ele had said
strike benefits in return for persuading other employees that "they had offered him some money, that, if he
to vote for Respondent. As had Ele, both Perazzo and would vote for the Union and if he would get some of
Garcia testified that the latter had initiated the October the guys to help him bring the Union back in, they could
15 conversation by explaining that Ele had not been enti- get him the rest of the money." Yet, before Hudson had
tied to strike benefits because he had not been paying testified, Ele, when called as a witness for the General
dues prior to the strike. Moreover, both of them agreed Counsel, had denied specifically that, during his October
that Fullerton's name had arisen during the conversation. 15 conversation with Garcia and Perazzo, anything had
However, both testified that this had occurred when Ele been said about him (Ele) actually voting for Respondent
had asserted that Fullerton had promised to secure the in return for the strike benefits payment. Rather, accord-
strike benefits and then had persuaded Respondent not to ing to Ele, Garcia had said only that Ele would get all of
pay them to Ele. Both union officials testified that the strike benefits if Respondent won the election.
Garcia had replied to Ele's remark by saying that Lester Finally, Ele testified that he had spoken with Benic by
Null had assured everybody in Respondent that Fuller- telephone and that he had told Benic, "I was going to
ton was no longer involved with Respondent and that get some money. They was [sic] going to bring me some
Garcia and Perazzo were in charge of it. Both agreed money, and then, when the Union got in, I'd get the rest
that Perazzo had told Ele that Respondent expected to of my money." According to Ele, Benic had retorted
win the upcoming election. Both of them testified that simply that such an arrangement was illegal. Benic testi-
one or the other had concluded the conversation by fled that Ele had explained that Garcia and Perazzo had
saying that Ele's support would be appreciated. Garcia promised to attempt to secure the strike benefits for Ele
testified that this was a normal concluding remark made and that they had promised "to give him some money
to employees during an election campaign. now and, after the election, they're going to give him the
The General Counsel and the Charging Party-Employ- rest." Benic testified that he told Ele, "if they did that,
er presented four additional witnesses. One, Victo Heavi- that's illegal because, by the rules of the NLRB for the
lin, is Ele's nephew and had been working in and around election, any bribery or any soliciting . . . was illegal."
Ele's garage on October 15 during the conversation dis- The election was conducted on October 16 from 6:30
cussed above. Heavilin testified that, through the missing to 7:30 am. and from 2:30 to 3:30 p.m. 5 Ele testified that
window panes, he had overheard one of Respondent'si , he had reported to the polling place that morning before
officials say to Ele, "If you could help us get in, we 7 a.m. "to stop Bob Hudson from voting for the
could get you $600, but we can't promise all of it to Union," 6 in essence, because Garcia and Perazzo had not
you." Other than the concluding remark, "We'll keep ins se t e pecen eenn aa
touch," which he also attributed to one of the two offi- returned to hs housethe preeding evening with partial
payment of the strike benefits and, accordingly, Ele "wascials, Heavilin testified that he had not heard any other mad becaue I d idn't get the mon y that night."
comments made during that conversationmad because I didn't get the money that night."comments made during that conversation.
Ele testified that, after Garcia and Perazzo had left, he. ANALYSIS
had contacted other employees to tell them what had oc-
curred. Ele identified three other employees with whom When they testified, it did not appear that the wit-
he had spoken: Alfred Villarreal, Robert Hudson, and nesses called by the General Counsel and by the Charg-
Benic. According to Ele, he telephoned Villarreal and ing Party were candidly relating the events that had
said that "Mr. Garcia and the Union are going to give transpired on October 15 and 16. Rather, it appeared that
me my strike pay." Ele further testified that "I men- they were attempting to tailor their accounts of those
tioned the $600 I believe that they said they was [sic] events, pertaining to and surrounding Garcia's and Per-
going to get me, but I don't remember any other words azzo's conversation with Ele, in a manner that would es-
with him except just telling him that I was going to get tablish and fortify a case against Respondent. Certainly,
some money." Villarreal, however, testified only that Ele Ele had a motive for doing so. As his initial conversation
"told me that two men from the Union came by his with Perazzo, during the week preceding the election,
house and offered him some money if he would vote for demonstrates, he had been upset at not having received
the Union." Villarreal denied that Ele had identified the strike benefits for the period that he had been on strike
two men by name and denied that Ele had said what in 1979. Further, Ele admitted that, on the morning of
amounts he had been offered. the election, he had continued to be "mad" about not
Ele testified that, after speaking to Villarreal, he had having received those benefits. Although he asserted that
gone to Hudson's home where, according to Ele, he had his anger that morning had been occasioned by Respond-
related to Hudson that "the Union was going to pay my ent's failure to deliver the partial payment to him during
strike pay, that I was going to get some now and I
would get more after the Union got in." When asked ini- This election was conducted in a bargaining unit of:
tially what had been said to him by Ele, Hudson testified All production and maintenance employees employed by the Em-
only that Ele had said that "two people from the Union ployer at its facility located at 330 W. Citrus Street, Colton, Califor-
had come to visit him" and "that he [Ele] would would nia, 92324; excluding all other employees, including office, clerical,
accounting, technical and professional employees, employees repre-
get some money if he was to vote for the Union, that he sented by labor organizations other than the Petitioner, watchmen,
would get part of this money then and probably after the guards and supervisors as defined in the Act.
election get the rest of his money that was due him. 1 Hudson testified that he had not voted in the election at all that day.

. t . t t
ill l. i t ti-
' tt t t t i it l
l l rt l ti if
r t f iti l itne . , i t i t t' ill l , t r l f t f t
li , i l ' i i i li i . l l
l ' r t r i t ti i =
. vili t tifi t t, t i i . '
r ^windo pans, h hadovereardone f Repondnt's he bad reported to the polling place that orning before
ffi i l t l , If l l t i , r r
l , r i ll i ,
. t t l i r , 'll i u n ed to hs se t h e rd ng Pening hadtno
, t t ffi-
r et u r n ed t o h ls h o u se t h e preeding evening ith partial
touc," hichhe lsoattrbutd tooneof he to ofi- a e t f t stri e e efits a , acc r i l , le " as
i l , vili t tifi t t t r t ta e I t get a e atcnig
ti
ANAIS

.
W S
O S
i ]
n ia' 92324; cluding
if W s t l r r i ti t r t t titi r, t ,

l ti t t t i t t i . I s testifie t at e t te in t e electi at all t at a .
ce
st
LOCAL UNION NO. 226 1247
the preceding evening, it is equally inferable that he had had been promised to him in return for his assurance that
been "mad" because Garcia and Perazzo had told him on he would vote for Respondent in the election.
October 15 that Respondent was adhering to the position Possibly the most significant inconsistency arose from
that he was not entitled to those benefits. Heavilin, of Ele's and Benic's accounts of their purported telephone
course, is Ele's nephew. Benic had been the employee conversation following Garcia and Perazzo's visit of Oc-
who had filed the decertification petition in 1979. There tober 15. During direct examination, Ele testified that he
has been no showing that his lack of sympathy for repre- had called employees other than Villarreal on the eve-
sentation by Respondent had changed since that time. ning of October 15 and then testified that he had spoken
Accordingly, while it is no doubt accurate, as the Gener- with Benic, telling him, as set forth above, that "I was
al Counsel argues, that Garcia and Perazzo had a "sub- going to get some money. They was [sic] going to bring
stantial stake . . . in the outcome of the election and of me some money, and then, when the Union got in, I'd
this proceeding," it is equally accurate that at least some get the rest of my money." The substance of this ac-
the General Counsel's and Charging Party's witnesses, count, of course, comports with Ele's description of his
particularly Ele, could hardly be characterized fairly as conversation with Garcia and Perazzo. However, during
being without interest in the outcome of these matters. cross-examination, Ele switched direction and testified
In point of fact, while the General Counsel and Charg- that his conversation with Benic had not occurred until
ing Party assert that Heavilin's testimony, in effect, tends the following morning, October 16. Benic agreed that he
to corroborate that of Ele, concerning the promise asser- had not spoken with Ele until the morning of October
tedly made to the latter by Garcia and Perazzo, compari- 16, testifying, as described above, that Ele had reported
son of their testimony tends to show the contrary. Thus, that Respondent's agents had promised "to give him
although Heavilin claimed that he had overheard an as- some money now and, after the election . . . to give him
surance to try to get $600 for Ele if the latter helped Re- the rest."
spondent "get in," he testified also that the speaker had Yet, the election had been scheduled to commence at
qualified that assurance by adding "but we can't promise 6:30 a.m., October 16. Thus, by the time Ele had spoken
all of it to you." Yet, in his description of the purported to Benic that morning it would have been obvious that
promise made by Garcia and Perazzo, Ele made no ref- Respondent was not going to pay part of the strike bene-
erence to such a qualification. To the contrary, his de- fits to Ele prior to the election, as Ele claimed that
scription of it was unqualified: all of the strike benefits Garcia and Perazzo had promised to do. Indeed, Ele ac-
that Ele would have received in 1979 would be paid to knowledged that he had gone to the Colton facility at 7
him if Respondent prevailed in the election. True, some that morning, before having spoken with Benic, because
portions of Ele's various descriptions of the October 15 he had been "mad" about not having received any
conversation are susceptible of an interpretation that money from Respondent and had wanted to stop Hudson
Garcia had expressed doubt concerning whether the from voting for it. In these circumstances, it would have
benefits could be paid, at all, to Ele ("We'll go and been illogical for Ele to have told Benic that Respondent
check with Mr. Null and see.") But, at no point did Ele "was going to bring me some money," as Ele described
describe either Garcia or Perazzo expressing any reserva- it, or was "going to give him some money now," as
tion, similar to that described by Heavilin, about whether Benic testified. For, by his own admission, by the time
the entire $600 would be paid if the decision was made he had spoken to Benic, Ele knew that that was not
to pay Ele at all. Accordingly, Heavilin's testimony, con- "going to" happen.
cerning the scrap of conversation that he assertedly Of course, it could be argued that Ele had been doing
overheard, does not tend to corroborate Ele's account of no more than advising Benic of the promise that had
what purportedly had been said to him on October 15 by been made by Respondent's officials. Yet, it seems un-
Garcia and Perazzo. likely that Ele would have withheld from Benic the fact
Inconsistencies also arise from comparison of the var- that the initial part of that promise had been broken by
ious versions advanced of Ele's purported dissemination Respondent. Certainly, Benic provided Ele ample oppor-
to other employees of the remarks made by Garcia and tunity to disclose that the preelection portion of the full
Perazzo. For example, as set forth above, Ele claimed payment had not been made. For, Benic testified, as set
that, when he had spoken to Villarreal, he (Ele) had re- forth above, that he had responded to Ele's description
lated that Garcia was going to give him strike pay in the of the promise by pointing out that "if they did that,
amount of $600. Yet, Villarreal denied expressly that, that's illegal .... " (Emphasis supplied.) In the final
during their telephone conversation, Ele had mentioned analysis, what appears to have happened is that, in their
either the amount that he had been offered or the names haste to fortify the case that Respondent had made an il-
of Respondent's representatives. Hudson, whose memory legal promise that Ele had disseminated to other employ-
of what Ele assertedly had said to him had to be re- ees, Ele and Benic lost track of the setting against which
freshed from his pretrial affidavit, claimed that Ele had their asserted telephone conversation had occurred.
related that part of the price for receiving the strike Both the General Counsel and the Charging Party
benefits would be Ele's agreement to vote for Respond- argue that it simply made no sense for Garcia and Per-
ent in the election. Yet, Ele denied that anything had azzo, both vitally concerned that Respondent prevail in
been said specifically by Garcia and Perazzo about Ele the election, to take time out simply to tell an employee
actually voting for Respondent. Indeed, at no point did something that would tend to lead that employee to vote
Ele testify that he told Hudson that the strike benefits against Respondent. While a superficially logical argu-
t

..
..
S

/
. .
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, it overlooks certain factors. First, neither Garcia dermined their own purported effort by failing to return
nor Perazzo had been involved in the 1979 strike, or in with the partial preelection payment. Both Garcia and
the decision at that time to deny strike benefits to Ele. Perazzo appeared sufficiently knowledgeable to perceive
Second, neither Garcia nor Perazzo had ever met Ele that any favorable change in Ele's attitude toward Re-
prior to the latter's encounter with Perazzo at the Colton spondent resulting from their promise quickly would be
facility during the week prior to the election. Conse- undermined by failure to fulfill their side of the bargain.
quently, neither official of Respondent had ever had the Accordingly, it appears unlikely that they would have
opportunity to discuss with Ele the latter's complaint put themselves in the position of promising to perform
about not having received his strike benefits. Third, in an act before the election, in return for Ele's support in
describing their conversation during the week prior to it, if they had any question concerning their ability to
the election, both Ele and Perazzo agreed that the perform that promised act.
former had said only, in essence, that he had walked the The foregoing considerations, among others not all of
picket line for 13 weeks and had been denied strike bene- which are enumerated specifically herein, confirm my
fits. Neither of them testified that Ele had explained fully impression at the hearing, based on their demeanor, that
to Perazzo, at that time, what had caused Respondent to Ele and the other witnesses called by the General Coun-
deny strike benefits to Ele. Thus, so far as the record dis- set and the Charging Party were not testifying candidly.
closes, Perazzo had been unaware that Ele already knew Inasmuch as there is no credible evidence that Respond-
that he had been denied those benefits because his dues ents officials made any unlawful or objectionable re-
had not been paid during the period immediately preced- complaint and report
ing the strike. Finally, so far as the record discloses, Re- oetin all e en the complaint be
on objections, I shall recommend that the complaint bespondent's records did not show that Ele had been made objectio. , t
aware of the reason that Respondent had denied him dismissed, that the objection be overruled, and that Re-aware of the reason that Respondent had denied him
r of te rsn tt Rt hd denid him spondent be certified as the bargaining representative ofstrike benefits in 1979. In sum, it was hardly illogical for sponent e ashe bargaining repenttive,-, > , i, .., . ci <* the employees in the above-described bargaining unit.Garcia and Perazzo to assume that Ele was unaware of
the true reason that he had been denied strike benefits inCONCUSIONS OF
1979 and, based on that assumption, for them to under-
stand how Ele could be mistakenly justified in believing 1. Colton-Wartsila, Inc., is an employer within the
that he had been "cheated." meaning of Section 2(2) of the Act, engaged in corn-
It is against this background that Garcia decided, merce and in a business affecting commerce within the
having ascertained from Respondent's records why the meaning of Section 2(6) and (7) of the Act.
strike benefits had not been paid to Ele, that, as Garcia 2. Local Union No. 226, International Brotherhood of
testified, "[W]e'd better let this guy know why he didn't Pottery and Allied Workers, Seafarers' International
receive any benefits, you know, so he'd get that part of it Union of North America, AFL-CIO, is a labor organiza-
straight. So we went to explain to him why he never re- tion within the meaning of Section 2(5) of the Act.
ceived any benefits." It may be Pollyannaish, but hardly 3. Local Union No. 226, International Brotherhood of
uncommon in the course of human affairs, to believe that Pottery and Allied Workers, Seafarers' International
people will accept even an adverse decision if accorded a Union of North America, AFL-CIO, has not violated
logical explanation for it. Here, Perazzo had been con- the Act in any manner alleged in the complaint.
fronted with a facially valid complaint by an employee Based on the foregoing findings of fact, conclusions of
who appeared not to be aware of the reason he had been law, and the entire record, and pursuant to Section 10(c)
deprived of a benefit to which he seemingly was entitled. of the Act, I hereby issue the following recommended:
Upon discovering the reason for that deprivation, Garcia
and Perazzo sought out Ele to explain that the depriva- ORDER 7
tion had not been wrongful or capricious, but rather, in
Respondent's view, had a valid basis: the lack of dues It is hereby ordered that the complaint be, and it
payments on Ele's behalf during the period preceding the hereby is, dismissed in its entirety.
strike. In these circumstances, it cannot be said that IT IS FURTHER ORDERED that Case 31-RC-4863 be
Garcia and Perazzo acted illogically in considering it severed from Case 31-CB-3966, that the objection in
possible that, once having heard that explanation, Ele Case 31-RC-4863 be overruled, and that Local Union
might change his mind about opposing representation by No. 226, International Brotherhood of Pottery and
Respondent-or, as Garcia pointed out, at least that he Allied Workers, Seafarers' International Union of North
might stop villifying Respondent by saying that he had America, AFL-CIO, be certified as the collective-bar-
been "cheated" out of these benefits. gaining representative of the employees in the appropri-
But, if Garcia and Perazzo's visit to Ele was not illogi- ate bargaining unit.
cal in the circumstances, it can hardly be said that the
scenario portrayed by Ele was a logical one. For, to In the event no exceptions are filed as provided by Sec. 102.46 of the
accept Ele's testimony about the October 15 conversa- Rules and Regulations of the National Labor Relations Board, the find-
tion would be to conclude that Respondent's agents had ings, conclusions. and recommended Order herin shall, as provided in
promised to deliver money to him prior to the election, Sec 102.48 of the Rules and Regulations, be adopted by the Board andpromisoved lookscertai t t, neitr Gria become its findings, conclusions, and Order, and all objections thereto
to secure his support in that election, and then had un- shall be deemed waived for all purposes
t.
i l l i i ti , t ll
t li i i t cifi ally i , fi
i i ti ri i
t itne l r l
t i fit t l . i l rt tif i l
l , t t l l I s t i i l i t t
fi t j i l r -
t i ri t i i i l m o t n a l i
i t t i . i ll , t i l , -ios 1ar11 intib-, ., , ,', . , ,, , c, ,, , ,
s t's r r i t s t t l dsie, t t o be oerl, a t Re-,., .1. o -i .i, -) , * ,1 i , <, ,
aware of the reason hat espondent ad nie
. t e i th a bgn unit.
' &
NCL S LAW

m
.
. l i . , I t r ti l r t er of
i f rt ri , - I , has not violated

i 7

"'
s
,
r i t li r t i ri r t t l ti ,
s ec . 102.48 of the Rules and l ti s, t t r
beco e its fi i s, l i , ,
,s l .
" "