Staff Officers Association Of America (Delta Steam-Ship Lines)

STAFF OFFICERS (DELTA STEAMSHIP) Staff Officers Association of America (Delta Steam- ship Lines) and William J. Kelly. Case 20-CB- 6348 19 December 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 15 May 1985 Administrative Law-Judge Jer- rold H. Shapiro issued the attached decision. The General Counsel fled exceptions and a supporting brief. I 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 record2 in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' 1 We have not considered the Respondent's answering brief filed 3 September 1985 because it was untimely Board's Rules and Regulations, Sec. 102 46 2 The General Counsel's motion to reopen the record is denied The General Counsel has not shown that the evidence sought to be adduced would require a different result, See Sec 102 48(d)(1) of the Board's Rules and Regulations The Respondent's notice of motion to reopen the record is also denied, as it is predicated on the Board's granting of the General Counsel's motion to reopen the record Andrew Baker, for the General Counsel. Francis J. Dooley, for the Respondent. William J. Kelly, pro se. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. This proceeding in which a hearing was held 11 March 1985 is based on unfair labor practice charges filed 20 September 1984 by William J. Kelly (Kelly) against Staff Officers Association of America (Respondent), and a complaint issued 21 December 1984 by the General Counsel of the National Labor Relations Board (the Board) alleging that Respondent violated Section 8(b)(1)(A) of the National Labor Relations Act (the Act) by failing since about 24 August 1984 to process a con- tractual grievance filed by Kelly concerning a request for a seniority list showing Delta Steamship Lines assign- ment of pursers and the failure of Delta Steamship Lines to assign Kelly work according to seniority, and further alleges that Respondent failed to process the aforesaid grievance because of Kelly's dissident union activity and 1137 for reasons which are unfair; arbitrary, invidious, and which breached Respondent's fiduciary duty owed to Kelly and the other employees by Delta Steamship Lines whom Respondent represents. On the entire record, and from my observation of the demeanor of the witnesses , and having considered the posthearing briefs, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED Delta Steamship Lines (Delta) is a Louisiana corpora- tion with an office and place of business in San Francis- co, California. Delta operates oceangoing vessels in for- eign commerce and in the transportation of passengers, goods, materials, and supplies, between States of the United States and foreign countries During the course and conduct of its business operations within the 12- month period prior to the issuance of the complaint herein, Delta derived gross revenues in excess of $50,000 for the transportation of passengers and freight from the State of California directly to points outside of the State of California. Delta is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. RESPONDENT'S STATUS AS A LABOR ORGANIZATION Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The setting Respondent's membership is comprised of employees employed as pursers and pharmacists on ships which sail from ports in the east, gulf, and west coasts of the United States. During the time material its total member- ship was between 100 and 125, of whom approximately 2 dozen live on the west coast of the United States. Re- spondent, whose office is in Hoboken, New Jersey, has one full-time employee, who occupies the position of sec- retary-treasurer. Joseph Rugenis is Respondent's secre- tary-treasurer. He assumed this position 25 April 1983 when his predecessor Burt Lanpher died. Rugenis, who, at the time of Lanpher's death, was the Respondent's president, assumed the position of secretary-treasurer and Respondent's vice president Edward Gray became presi- dent During the time material, the Employer Delta Steam- ship Lines (Delta), at first operated 16 ships which em- ployed pursers. Twelve of the ships were freighters which sailed from ports on the east and gulf coasts of the United States, and four were so-called M ships which sailed from the west coast Each of the M ships-S.S Santa Maria, S.S. Santa Magdalena, S.S Santa Mercedes, and S.S. Santa Mariana-carried approximately 100 pas- sengers in addition to cargo. The M ships sailed from the port of San Francisco, California, to ports in the Pacific Northwest and then returned to San Francisco. This 277 NLRB No. 125 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voyage, known as the loop voyage, took between 6 and 7 days. The ships then sailed from San Francisco around South America, through the Panama Canal, and returned to San Francisco. This voyage is known as the foreign voyage. The loop and foreign voyages taken together lasted approximately 60 days, and the same pursers were usually assigned to a ship for the loop and foreign voy- ages. In 1983 Delta began removing its freighters from serv- ice and, by 1984, had removed them all. Also removed from service late in 1983 was the S.S. Santa Mercedes, one of the M ships, leaving three M ships in operation. During 1984 Delta removed its remaining M ships from service; the last voyage of an M ship took place about 5 October 1984. As of the date of the hearing in this pro- ceeding, 11 March 1985, Delta was no longer doing busi- ness, having apparently been purchased on an undis- closed date by another company. William Kelly, the Charging Party, who lives in San Francisco, California, is a member of Respondent. During the time material, he was employed by Delta as a second assistant relief purser on its M ships. Each M ship employs three permanent pursers: a chief purser; a first assistant purser; and a second assistant purser. The per- manent pursers are required to leave their vessel after the completion of one voyage and remain off the vessel for one voyage. The relief pursers substituted for them on the second voyage. During the time material, the Union was party to a collective-bargaining contract with approximately six shipping companies, including Delta, covering the purs- ers employed by those companies. The contract, which was scheduled to expire in June 1985, contained a union- security clause requiring the pursers to join Respondent after having worked 30 days. Also, article XI of the con- tract contained a grievance and arbitration procedure which provided in pertinent part: All disputes relating to the interpretation of per- formance of this Agreement which may arise be- tween the parties to this Agreement shall be deter- mined by a Purser Personnel Board consisting of two persons appointed by the Union, and two per- sons appointed by the Company. The parties shall submit any such dispute for decision by the Board and agree to be bound by the decision of the major- ity thereof . . . . In the event the said Board be- comes deadlocked on any matter, either party may submit the issue to the Arbitrator appointed hereun- der for final decision. Article XI also provides for the appointment of a perma- nent arbitrator with the authority to decide whether a dispute is arbitrable and further provides that "the deci- sion of a majority of the Board or the Arbitrator, as the case may be, shall be final and binding upon both par- ties" and that "unless some other place is mutually agreed upon, the Board shall meet in New York prompt- ly upon written or telegraphic notice from either party, within 48 hours, Sundays and holidays excluded ." There are no time limitations imposed by the contract for the filing of grievances or their submission to arbitration. Also relevant to this case is article I, section 2, of the governing contract which provides , in pertinent part, that: In the case of . . . relief assignment, a member of the Purser Personnel reporting to the Company shall produce an "official clearance" form issued by the Union, and relief assignment for continuous em- ployees shall be "cleared" on the basis of length of unemployment. Likewise, relevant to this case are two memoranda: One dated 1 January 1983 by and between Respondent and Delta, and another dated 12 December 1980 issued by Respondent to its members employed by Delta on the west coast. The 1 January 1983 "Memorandum of Un- derstanding" between Respondent and Delta provides in pertinent part: For voyages on the following vessels, the S.S. SANTA MARIA, S.S. SANTA MAGDALENA, S.S. SANTA MERCEDES, and the S.S. SANTA MARIANA purser personnel shall be required to leave the vessel after completion of one voyage, and remain off the vessel for one voyage. It is un- derstood that one voyage shall consist of the For- eign voyage and the Loop voyage coastwise. Where, due to special circumstances, and subject to the approval of the company and the union, an em- ployee requests a relief purser for the "loop" trip the employee shall continue to be entitled to com- pensation as provided for pursuant to the under- standing of the parties dated March 23, 1981. This provision can be waived, in whole or in part, where the union and the company mutually deter- mine that its application will create hardship or will adversely affect shipping and employment condi- tions. The 12 December 1980 "Memorandum to All West Coast Personnel Employed by Delta Steamship Lines" was signed by Respondent's secretary-treasurer Lanpher, and reads as follows: The purpose of this Memorandum is to clarify the procedures which were established to carry out the "Secondary Seniority" with Delta Steamship Lines originally instituted by S.O.A. Memorandum dated April 16, 1979. You will recall that this system was devised to pro- vide a fair and equitable method to fill the available jobs on Delta Line "M" ships and to rotate them among available Purser Personnel. At the time and since then, it was the intent to allow for Relief Purser Personnel on the Loop Voy- ages, and for the Purser Personnel who are eligible to make the next Foreign Voyage, to return after the Loop Trip. This Shipping Rule was reaffirmed by a meeting of West Coast members in San Francisco on Decem- STAFF OFFICERS (DELTA STEAMSHIP) ber 1980, and is the official policy of the Union in these matters. We urge all West Coast Purser Personnel to adhere to this procedure in the future, in order to maintain equitable hiring and employment practices , that will provide ample opportunity to work for all. During all times material, the employment of relief pursers on Delta "M" ships was governed by the length of time a relief purser was out of work . The relief purser who was unemployed for the longest period of time was given the next job assignment , provided that "all other qualifications [were] equal," even though he had less se- niority than other unemployed relief pursers. Prior to June 1984 Delta selected relief pursers from a roster that it prepared, a copy of which was submitted to Respondent . Due to complaints from Respondent's mem- bers about job assignments, Rugenis, in June 1984 and thereafter, changed this procedure by preparing the roster himself, which he then submitted to Delta for its approval. Delta always approved the roster submitted by Rugenis. In preparing these rosters , Rugenis spoke to of- ficials of Delta from whom he secured the necessary in- formation. On three or four occasions in 1983, and on two occa- sions in 1984, Rugenis spoke with Delta's industrial rela- tions manager Griffiths about Kelly's employment. These conversations took place when the current roster showed that Kelly was eligible for an assignment . Griffiths ad- vised Rugenis that even though Kelly, according to the roster, had been unemployed longer than the other relief pursers Delta was not giving him the assignment because of his inability to get along with certain permanent purs- ers who were sailing on the ship, and because he was ar- gumentative. Griffiths did not give Rugenis the names of any one of these pursers who Kelly could not get along with, but Rugenis from his conversations with Respond- ent's members learned the names of three permanently assigned pursers who had indicated that they did not want to sail with Kelly-Sistrunk, Charfarous, and Mer- ritt. In 1983 and 1984, on more than one occasion, Kelly complained to Rugenis about being bypassed by Delta for a work assignment. Rugenis explained to Kelly that one of the reasons Delta had bypassed him was that Kelly was having problems getting along with the other pursers, whom he did not name. Kelly denied he was having such problems and told Rugenis that he thought Delta should furnish him with documentation showing the times, dates, and the names of the pursers involved. It is undisputed , however, that in Rugenis' conversations with Kelly on 24 and 30 August 1984, described infra, that the subject of Kelly's inability to get along with other pursers was not mentioned . As a matter of fact, Rugenis testified that nothing was said to him by Delta during this period about Kelly's inability to get along with other pursers. 2. A chronology In 1981 Kelly retained Attorney John Fouts to com- plain to Delta on his behalf about certain matters con- nected with his employment. Attorney Fouts wrote 1139 Delta's attorney Forrest Booth of Hancock, Rothert & Bunshoft about Kelly's employment grievances. In re- sponse John Bowe, Delta's director of operations for its Pacific division, wrote Attorney Fouts a letter dated 28 October 1981 which reads as follows: Thank you for your recent letter to Mr. Forrest Booth of Hancock, Rothert & Bunshoft, setting forth the specifics of the claims Mr. Kelly is making against his union , Delta Steamship Lines and some of Delta's employees. We appreciate your taking the time to explain them to us both by telephone and in writing, and Delta also appreciates the op- portunity to attempt to resolve these problems in- formally to the satisfaction of both Mr . Kelly and the company. Delta wishes to state at the outset that although Kelly's service to Delta has generally been ade- quate, because of his personality he has sometimes presented problems to the company in the area of personnel relations . He has been difficult to get along with, and has a reputation as a complainer. He has demonstrated an inability to work with some of the senior pursers who are regular employ- ees of Delta, and Kelly has thereby somewhat nar- rowed his employment opportunities , since he now cannot be assigned to work with certain senior pursers. As you know, the conduct, appearance and attitude of its pursers is a matter of the utmost con- vern to Delta, since the pursers on its vessels are in constant contact with the passengers , and primary consideration must be given to these employees' ap- pearance, personality and congeniality, both with each other and towards the passengers , in order to maintain Delta's position as a first class cruise line operator. There have been times when Kelly has failed to live up to these standards , and Delta feels that much of what Kelly complains of can be laid at his own feet as problems of his own making. With regard to your specific allegations against Delta, Delta takes serious exception to your excep- tion to your statement that its port purser, Tom Griffiths, "does not pay much attention to the rules set forth on [sic] the collective bargaining agree- ment or the various letters of understanding." Delta wishes to state for the record that Delta alone does not dispatch union members for work, this obvious- ly being the function of the Staff Officers Associa- tion of America with some input from the company. To the extent Delta is involved in the assignments of pursers to work on its vessels, pursuant to the union agreement, Delta adheres to the seniority re- quirements of the contract with the Staff Officers Association, and in addition takes account of the compatability of the pursers who will serve togeth- er on a given vessel and voyage. Kelly alleges that he was unjustifiably denied the duties of handling the slop chest on board the Santa Magdalena by Senior Purser Charfaurous ; this was done by the Senior Purser due to Kelly's apparent unwillingness to perform the duties involved in the manner required. Charfaurous stated to Kelly at 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that time that the slop chest duties were being taken away, from him due to his being too slow in per- forming the work involved. Charfaurous was forced 'to reassign the duties to the bosun, in order to get the work done. Delta agrees with Kelly's statement that Michael Moore was assigned as junior purser on the Santa Magdalena in October 1980, but disagrees that Kelly was entitled to that position The seniority levels of the two junior pursers are equivalent, and since` Charfaurous was to be the Senior Purser on that voyage, it was felt by all parties that Moore would be a more appropriate choice for junior purser since Kelly had amply demonstrated his in- ability to get along with and work compatibly with Charfaurous. Delta denies Kelly's allegation that George Mer- ritt was given a trip Kelly was entitled to on the Santa Mariana in January 1981. The seniority level of Merritt is substantially equal to that of Kelly, and nowhere in the union agreement does it say that se- niority by a day or two gives a purser absolute enti- tlement to the next available billet. As noted above, several factors must be considered and the decision must be made in a manner that will be best for all concerned. With regard to Kelly's allegations of denial of overtime, Delta takes exception to the assertion that Kelly has been denied anything to which he is enti- tled. The union contract between Delta and the Staff Officers Association of America provides no absolute entitlement to any overtime work what- ever. It merely provides that overtime shall be paid for work in excess of 8 hours on any given day. There is no entitlement to any specific amount of overtime on any particular voyage, and the fact that Kelly has earned more overtime on some voyages than on others reflects a normal fluctuation in workload which is experienced by all pursers. It should be noted generally in connection with his claims for denial of overtime and dispatch of others ahead of him that Kelly earned $19,585 72 with Delta in 1979, and $29,760.46 in 1980. These earn- ings figures clearly refute any claim he may have for discriminatory treatment and denial of employ- ment opportunities by Delta during 1980. Delta believes strongly that Kelly's problem is primarily the fact that he has trouble getting along with people. His argumentative and feisty attitude has caused problems in his relations with his fellow workers, other crew members and the passengers on Delta's vessels. This in turn has posed problems to the union and to Delta in employing Kelly in a sen- sitive position such as that of purser on passenger vessels Delta remains willing to discuss Kelly's griev- ances further, although it believes them to be gener- ally without substance. Delta is likewise willing to discuss this matter with Kelly's union, the Staff Of- ficers Association of America, although Kelly has already presented all of the grievances mentioned above to the union (via letters such as his 15 Janu- ary 1980 one from Valparaiso, Chile) and the Union has decided that these claims are without merit. Thank you for your consideration in these mat- ters, and we hope that in setting forth Delta's posi- tion we have been able to convince you that Delta is not dealing unfairly with Kelly, but rather that his problems are largely of his own making. If we can be of further assistance in resolving any of his problems, please do not hesitate to call me In 1982, in connection with his voyage as purser on the S.S. Santa Maria from 19 July to 14 August 1982, Kelly submitted a total of 400 overtime hours to Delta's payroll department His claim was rejected and he was informed he would be paid overtime for only 310 of those hours. Thereafter, by letter dated 12 September 1982 Kelly explained to Delta's payroll department his reason for claiming overtime for the 90 disputed hours. On 5 June 1983 Kelly wrote a letter to Rugenis which begins by stating that "per your request the following letter is being written " The letter then goes on to com- plain to Rugems that Griffiths, Delta's industrial relations manager, assigned another relief purser to the S.S Santa Maria for the loop voyage which began 23 May 1983 even though Kelly had more seniority and was next in line on the roster for this assignment. Kelly informed Rugenis that he felt that Griffiths had deliberately by- passed him for this assignment in violation of the parties' collective-bargaining contract and that Griffiths' conduct had caused him to suffer a loss of wages. Kelly in his 5 June 1983 letter to Rugenis gave a detailed recitation of the facts which Kelly claimed supported his contention that Griffiths' assignment of another relief purser to the S.S. Santa Maria for its 23 May 1983 loop voyage was improper, and informed Rugenis that "[r]ather than cause any unpleasantness by confronting Griffiths with the facts I decided to write this formal complaint to you." Kelly then ended the letter as follows- I have undergone four years of this type of harass- ment . . I have taken everything from an un- justified, illegal firing (unemployed over 4 months) to a groundless, demeaning letter written by one John Bowe. In this letter, Bowe criticizes every- thing from my ability to my appearnace. After 25 years in the passenger ship business this letter cannot stand up. How Bowe became an authority on me I do not know since I have never had the dubious pleasure of meeting him In the interest of better business relations and pro- fessional expertise Delta management should start practicing mature personnel administration instead of personnel castration. On 14 August 1983 Kelly wrote a letter to Rugenis stating that he desired to go on record as supporting the position of fellow purser Robert Conant that it was a violation of the governing collective-bargaining contract for the Respondent and Delta to have agreed that Delta could remove Conant from his position as a purser for two voyages and replace him with another purser, Jon Anderson, for those voyages. In addition, Kelly in this STAFF OFFICERS (DELTA STEAMSHIP) letter enclosed copies of his above-described 5 June 1983 letter to Rugenis and his above-described 12 September 1982 letter to Delta's payroll department. Regarding the 5 June 1983 letter, Kelly wrote: (Enc. 2) My letter to you . . . dated June 5, 1983 re my complaints against Mr. Bowe and Mr. Griffiths: You told me to write said letter stating you would send a copy to Delta'a (Crowley Maritime) corpo- rate counsel Mr. Michael Sweetlow with a covering letter from you. If this was done I would like a copy of the covering letter. If this was not done; why not? Regarding his 12 September 1982 letter to Delta's pay- roll department, which involved Kelly's claim for the 90 hours of disputed overtime, Kelly pointed out to Rugenis that this letter was never answered by Delta even though the contract provided that "whenever a written claim for overtime has been presented and is disputed, the member of the Purser Personnel shall be provided two copies of the written claim which the Company rep- resentatives has [sic] signed indicating the reason for de- nying the claim."' Kelly reminded Rugenis that "you may recall I brought this subject up at the Anderson hearing in San Francisco a few months back and was practically laughed at by Mr. Truchan and Mr. Griffiths [referring to Delta's representatives]," but that Kelly did not feel that the loss of money involved in his overtime claim was something to laugh about. Kelly then ended his 14 August 1983 letter by declaring: "I want some an- swers. I have experienced about five years of, Lanpher's [referring to Rugenis' predecessor as secretary-treasurer] B.S. and stalling. I expect you to change that policy." On 25 August 1983 Rugenis wrote Kelly acknowledg- ing receipt of Kelly's 14 August 1983 letter and advised Kelly. I have read and reread [your August 14, 1983 letter] many times and my impression remains that your letter is more of a complaint of personalities than Delta's operational procedures: You do not offer me any concrete evidence with which to com- fort [sic] Delta Lines' executive personnel. In some respects your letter saddens me by creat- ing a feeling that it is unworthy of a man of your calibre, experience, knowledge and professional ex- pertise. Perhaps you would consider a re-composition and offer me some ammunition? In response to Rugenis' 25 August 1983 letter, Kelly on 19 September 1983 wrote Rugenis, as follows. In order to comply with letter of 25 August 1983 and to add to my two previous letters to you I am enclosing a Delta Co. letter dated 28 October 1981 signed by a John D. Bowe, Director-Operations Pa- cific Division 1 As a matter of fact art XII, sec 11, of the contract does provide this 1141 I have numbered the paragraphs in his letter and will answer them by number where required. (2) My "adequate" service is a gross insult. I have documentation proving my service ranges from very good to professional. I have never had a major problem with anyone I sailed with. As an ex- ample; in the case of one man, Berry Charfauros, we never exchanged one cross word while working together afloat or ashore. My complaint about him was in writing to the Union. This should have re- mained an internal Union problem. Delta, in the person of Tom Griffiths, chose to make it other- wise. I was illegally and unjustly fired by Tom Griffiths stating to a Union representative; "Kelly will not be rehired." I was unemployed for over four months before getting another assignment. Ob- viously, Delta had no other choice since the firing was groundless. The allegations about my appear- ance are petty if not plain stupid. My picture, in uniform, has appeared in both Australian and U.S. publications as representing a shipping company; in this case the Matson Navigation Company which was the real leader in first class passenger service. I have never been told of any discourtesy to passen- gers on my part. If Delta has any passenger letters of complaint against me I should have been shown them. I do not believe they exist. (3) Delta has not adhered to seniority as per Union agreement. I have ample proof of this and will be happy to show it in any hearing; legal or otherwise (4) By signing the letter containing this para- graph Mr. Bowe shows his lack of knowledge of shipboard procedures. No Chief Purser in his right mind would give the Bosun a 7 or 8 thousand dollar inventory to handle. To begin with the Bosun is a member of another Union, another department and most are semi-skilled with figures. The only thing the Bosun handled was beer sales out of a baggage room. This is not part of the Slop Chest as a mere glance at any slop chest financial statement will prove. If the Bosun handled the Slop Chest that voyage why didn't he sign the financial report and the requisition for the next voyage? Since this was my fourth voyage and I had handled the slop chest on three other voyages on other ships, this para- graph is a blatant lie. The Slop Chest was never re- moved from my control. (5) The seniority levels of Mr. Moore and Mr. Kelly are not equivalent as a look at the in-hire dates will prove. Mr. Kelly has almost a year over Mr. Moore in seniority. Mentioning Mr. Charfauros in this paragraph was just an excuse to keep me off the ship. Delta frankly needs some courses in Per- sonnel Administration and Personnel Psychology. I have a Bachelor of Science in Business Administra- tion and know that any skilled executive would have brought both parties together to solve any real or imagined problems. (6) Seniority is supposed to count where job or no job is concerned regardless of the amount of 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time Delta has admitted this by the last couple of rosters where people have been dropped due to the cutback in ships. Their argument here is merely self-serving '(7) Quoting figures like this is like playing with statistics. Depending on which universe of figures one chooses to use one can always come up with figures that please. The larger earnings figure of 1980 reflect a voyage overlap from 1979. The voyage ended in early January 1980 instead of in December 1979. The last voyage of 1980 ended a couple days early than scheduled. It should have ended in 1981. As a consequence two voyage earn- ings were shown in one year. (8) I demand that Delta prove these allegations. I want to see letters, log entries and have witnesses document their statements. I have never had a fist- fight with a Chief Purser; have never had a bar- tender come over the bar to pull me off a female passenger; have never walked off a ship before the voyage ended forcing the company to fly down a relief, have never been fired and gone for three years for inability to get along with others; (the latter has now been reinstated with full seniority). Under these circumstances it would appear that Delta owes him three years back wages. I have over twenty-five years on passenger vessels with a clean record on ships carrying between 350 to 700 passengers. (9) I want to know who decided my claims are without merit and what they based their decisions on. -In closing let me state that I have never met Mr. Bowe and I want the allegations in the letter he signed retracted and this denigrating letter removed from my file plus an apology from Delta. Rugenis responded to Kelly's 19 September 1983-letter by writing Kelly on 30 September 1983 as follows: This will acknowledge receipt of your letter of 19 September 1983 Since receiving it, I have reviewed it daily and must admit I still don't understand the situation. Were you fired2 Who is John D. Fouts? How did you receive a copy of a letter ad- dressed to John D. Fouts Esq ? Who is Forrest Booth, Esq. Who is Hancock, Rother & Bunshoft? I stand in expection of your reply. Have a nice day. Kelly responded to Rugenis' 30 September 1983 letter by writing Rugenis on 4 October 1983 as follows: In response to your letter 30 September 1983 these are the answers to your questions: (1) I was fired previous to this letter; without cause as I told you in an earlier letter. (2) John D. Fouts is my attorney and he gave me a copy of the letter. (3) I can only assume that Forrest Booth, Esq., Hancock, Rothert and Burshoft are a legal firm hired by Delta The basic thing about the Bowe letter I wish to get across to you is the fact that the letter encompasses groundless, blatant lies that amount to character as- sasination . . . . To repeat; I want these allegations retracted, I want the letter removed from my file I want an apology from Delta. Rugenis responded to Kelly's 4 October 1983 letter by writing Kelly on 25 October 1983 as follows: In reference to your letter of 4 October 1983, please be advised as follows The situation as referred to occurred in 1981 and should have been resolved to your satisfaction at that time A basis in fact to re-open the case at this time, October 1983 is nonexistent As a professional, I am sure that you are aware that nothing is ever removed from a file About 17 October 1983 Respondent held a member- ship meeting in San Francisco. Present for Respondent were its attorney Francis Dooley and its secretary-treas- urer Rugenis. Also present were two members from the east coast, D E. Stevens and Gerry Durand, and four members from the west coast, one of whom was Kelly. During the meeting Stevens and Durand accused Ru- genis of stealing Respondent's funds and of replacing the money he had stolen only after he had been caught steal- ing. Stevens and Durand also stated that they wanted Respondent to hold an election to determine who should be Respondent's secretary-treasurer.2 Kelly spoke up and indicated that he agreed with Durand's and Stevens' po- sitions. He stated that he felt Rugenis did not have "credibility" and stated that Kelly wanted Respondent to hold an election to determine who should be its secre- tary-treasurer. On 17 October 1983 immediately after the membership meeting, Kelly, with one or two of the other west coast members who attended the meeting, met with Durand and Stevens and discussed the strategy which would be used to have Respondent hold an election for the posi- tion of secretary-treasurer. On 19 October 1983 Kelly wrote Durand a letter which reads as follows I would appreciate it if you would bring to the at- tention of the East Coast membership at your next meeting a serious situation that exists pertaining to the one-third of the membership who reside on the west coast. 2 As I have noted previously, Rugenis assumed the position of secre- tary-treasurer in April 1983 when his predecessor died Rugenis at the time was Respondent's president, and without an election, assumed the vacant position of secretary-treasurer STAFF OFFICERS (DELTA STEAMSHIP) 1143 You may remember that I requested Joe Rugenis, Secretary-Treasurer SOA, to contact Thomas Grif- fiths, Marine Personnel Manager-Port Purser of Delta Lines San Francisco to determine just who is making the assignments on the "M" ships. Griffiths says Rugenis is doing it and Rugenis says Griffiths is doing it, Joe Rugenis stated at the meeting on Monday 17 October that he would see Griffiths the following day. -I called Joe Rugenis today to find out the outcome and he told me that "on the advise of the-attorney he did not contact Delta at, all." I cannot understand why a union representative would make a 6,000 mile round trip accompanied by the union attorney and not contact a company that some members are having trouble with. On another subject I asked Joe Rugenis what he had done about my letter to' Delta regarding 90 hours of disputed overtime which the company has not paid nor have they even gone by the contract to give me an answer in writing. Joe Rugenis simply stated, "that' was before my time." The one-third of the membership of the S.O.A. re- siding on the West Coast does not have any repre- sentation at all in the person of, Joe Rugenis. Please remind Joe Rugenis that all members are entitled to the same union protection and he'had better start doing the job he is being paid for. As you .know I am not the only one with this complaint. Kelly testified, without objection,' that Durand told Kelly that Durand had read Kelly's above-decribed 19 October 1983 letter, and the complaints expressed in that letter, to the Respondent's east coast members at a mem- bership meeting. fl On 11 January 1984 Stevens, a member of Respondent who resides on the east coast, wrote a letter to Respond- ent's members including Kelly in which Stevens, among other things, - told the members that he was continuing the fight stated by member Durand to have Respondent hold an election for the position ofsecretary-treasurer; that Durand had filed charges with the NLRB, against Rugenis for engaging, in certain acts of misconduct; and that in view of the unsatisfactory manner in which Ru- genis had conducted himself as Respondent's secretary- treasurer that Stevens was asking the membership 'to sign a petition recalling from office Respondent''s current offi- cers, including Secretary-Treasurer Rugenis; and, that a copy of the recall petition was enclosed for them to sign. Kelly signed the enclosed recall petition which he re- turned to Stevens. In late 1983; when Delta removed the S.S.' Santa Mer- cedes from service, Kelly spoke to Rugems and took the position that he was entitled to be assigned relief purser work by Delta ahead of those relief pursers with less se- niority than Kelly, even though some of them may, have been out of work longer than Kelly,, Rugenis told Kelly that the pursers' relative seniority, with an employer did not govern their employment as relief pursers. 3 Rugems did not deny that Durand read this letter to the east coast members at a membership meeting On 9 March 1984 Kelly,-who had last'sailed for Delta on a voyage which ended 19 December 1983, telephoned Delta's industrial relations manager. Griffiths and 'asked to be assigned as relief purser on the S.S. Santa Magda- lena, which was -scheduled to sail in the near future. Kelly explained that he felt entitled to the assignment be- cause he had been unemployed since December 1983. Griffiths replied that relief purser Cichielo was being as- signed to the S.S. Santa Magdalena as relief purser. Kelly stated he had been out of work longer than Cichielo and felt entitled to the assignment. Griffiths stated that Re- spondent made the assignments and that Griffiths could do nothing about the matter. Later the same day, 9 March 1984,Y Kelly, after his conversation with Griffiths, 'telephoned Rugenis and told him that Griffiths had advised him that Cichielo was being assigned to the S.S. Santa Magdalena as relief purser. Kelly told Rugenis that,he felt entitled to this as- signment because 'he had been out of work longer than Cichielo. Rugenis stated that he could not do anything about the matter and that although Kelly had been out of work longer than Cichielo that it was Griffiths, not Respondent, that was making the 'work assignments: Kelly complained that he felt he had been, bypassed. ^ ' On 21 March 1984 Kelly filed unfair labor practice charges with the Board's Regional Office in Case 20- CB-6177 against Respondent and in Case 20-CA-18833 against Delta. The charges against Respondent alleged, that Respondent in violation of Section 8(b)(1)(A) of the Act "during the past 6 months . . . 'refus[ed] to dispatch him because of irrelevant, invidious and capricious con- siderations" and "fail[ed] to • represent [him] and other members with regard to permanent assignments made by [Delta] in violation of seniority provisions thereby reduc- ing their work assignments." -The charges against Delta alleged that Delta in violation of Section, 8(a)(1), (3)-(4), and (5) of the Act "during the last six months , . . us[ed] an arbitrary method of ' job assignment causing [him] to be unemployed as a result of his union activities, as a result of him filing unfair labor practices against [Delta] and because of his internal, union political'acti^vities" and "by unilaterally implementing changes in its method of , selecting employees for voyages without negotiating these changes with 'the [Respondent]," which changes caused Kelly to lose 'gay and benefits.' In, mid-April 1984 Kelly telephoned Rugenis and told him that the S.S. Santa Mariana was scheduled to sail and that he wanted to be assigned to that ship as relief purser but had not spoken to Griffiths because of what had, occurred the, last time that Kelly had spoken to Grif- fiths about a work assignment, Kelly advised Rugenis that he understood that Mason was being assigned to the &S. ,Santa Mariana, as the relief purser even though Kelly had been unemployed longer. Rugenis replied by stating that there was nothing he could do about this even though he knew Kelly had been bypassed for work once before, He, advised Kelly that the reason he had 4 Kelly's request to withdraw his charges in Case 20--CB-6177 and Case 20-CA-1 8833 was approved by the Board 's Regional Director 31 May 1984 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' been bypassed was because of his inability to get along with other pursers, (Tr. 138) - As I have previously found, by middle 1984 Delta was only operating three M ships. It_ had ceased operating its 13 freighters and 1 of its M ships. The result was that a number 'of pursers were out of work who had been per- manently assigned to these vessels. Each freighter em- ployed one permanent purser, and each M ship employed three permanent pursers. Rugenis testified that in order to distribute the avail- able work equitably among the unemployed pursers, in June 1984-he reached a verbal agreement with Delta's in- dustrial relations manager Griffiths that all the pursers permanently assigned to Delta's freighters, who had lost their jobs when Delta ceased operating the freighters, would be- included on the relief purser employment roster. Previously the only- pursers whose, names were on this roster were the relief pursers who worked on the M ships. Respondent's collective-bargaining agreement with Delta did not prohibit Delta from assigning east and gulf coast pursers to work on Delta 's west coast ships as relief pursers. However, when Rugenis informed Kelly that Delta was doing this, Kelly objected. Kelly's reason for objecting was that late in 1982 Respondent's secre- tary-treasurer Burt Lanpher told Respondent's west coast membership, including Kelly, that "if anything should happen" they should not be worried about losing their jobs on the M ships to the pursers on the freighters, because the pursers work on Delta's M ships involved Delta's west coast operation. There is no evidence that Kelly ever advised Rugenis that this was his reason for objecting to Delta assigning the unemployed freighter pursers to work on the M ships, nor is there evidence that Rugenis was ever otherwise informed about Lanpher's comments. On 12 July 19$4 Rugenis, in an "Open Letter" ad- dressed to Respondent's members, pointed out that the number of jobs' available for pursers in the industry had declined- drastically and that because of this the available work had to be divided equitably and equally, but that it had been discovered ' that some of Respondent's members were working when they should have been off work on vacation and others were making more voyages than permitted by the "job rotation paragraph in the current collective bargaining agreement." Rugenis directed the membership to obey the contract and stated that he had informed the employers not to employ any purser who was, still on vacation. Rugenis also informed the member- ship that the official publication of Respondent, Staff Re- porter and Date Line, a copy of which he enclosed with his open` letter, ""sets forth the official [Respondent's] po- sition on vacations, job rotations and relief assignments." The copy of Respondent's newspaper enclosed by Ru- genis in his 12 July 1984 "open letter" to the membership was dated, 12 July 1984 and reads, in pertinent part, as follows: Because of the current job situation, to equalize employment opportunity for all members, S.O.A. Purser Personnel are hereby informed that the cur- rent Collective Bargaining Agreement is being en- forced. Specifically: 2. As per Memorandum of Understanding dated January 1, 1983. "Quote": "For voyages on the following vessles, the S.S. Santa Maria, S.S. Santa Magdalena, S.S. Santa Mercedes, and the S.S. Santa Mariana, Purser Personnel shall be required to leave the vessel after completion of one voyage, and remain off the vessel for one voyage. It is understood that one voyage shall consist of the Foreign voyage and the Loop Voyage Coastwise. This provision can be waived, in whole or in part, where the Union and the Company mutually determine that its application will create hardship or will ad- versely affect' shipping and employment condi- tions." - 3. When permanetly-assigned Purser Personnel leave their vessel within the context of #1 and #2 above, vacation credits must be taken and exhausted before returning to their vessel. Upon the termina- tion of a relief assignment, the relief Purser must take and exhaust his vacation credits to be eligible for another relief assignment. 4. Seniority is not necessarily the determinant of eligibility for a relief assignment. 5. All other qualifications being equal, the relief Purser who has been unemployed for the longest period of time is entitled to the next relief assign- ment even if he is not the most senior relief Purser at the time. 6. Period of unemployment to commence upon the exhaustion of all vacation credits by each relief Purser. In mid-May 1984 Kelly was assigned by Delta as a relief purser on the S.S. Santa Magdalena on a voyage which ended 15 July 1984 at which time Kelly went on vacations°On approximately 16 or 17 July 1984 the S.S. Santa Magdalena was scheduled to leave San Francisco on a loop voyage, 'and within 2 or 3 hours' of its `sched- uled sailiing time, one of its pursers abruptly quit and was replaced by relief purser Cichielo. There were other relief pursers who had been unemployed longer than Ci- chielo, but in view of the emergency nature of the situa- tion Delta used Cichielo who at the time happened to be on the vessel removing his gear from a previous voyage. Cichielo stayed on the S.S. Santa Magdalena not just for the loop voyage but also for the ship's foreign voyage. On 24 August 1984, at the end of his vacation, Kelly telephoned Rugenis and asked whether Rugenis could in- dicate' when Delta would reassign him to a vessel. Ru- genis replied that he would check with -Terri Klaus, whom the record reveals was taking the place of Delta's industrial relations manager Griffiths, who, during -this period, was periodically absent from work due to an ill- ness. Kelly stated that he felt he should be given another 5 Pursuant to the governing collective-bargaining agreement , the purs- ers received credit for approximately 17 days' vacation for each 30 days of work STAFF OFFICERS (DELTA STEAMSHIP) 1145 assignment by Delta because the M ships were going out of service, and Delta had bypassed him in the past. During this conversation Rugenis brought up the subject of Cichielo's above-described employment by Delta in mid-July 1984 on the S.S . Santa Magdalena when one of the pursers abruptly quit only hours before the ship was scheduled to sail Kelly, when he learned of this, told Rugenis that assuming the emergency nature of the situa- tion privileged Delta to employ Cichielo for the loop voyage, when the ship returned to San Francisco at the end of that voyage, Cichielo, should have gotten off the ship and Kelly assigned to the foreign voyage. Rugenis stated that there was nothing he could do about the matter because the ship had already sailed with Cichielo on board. Also during this conversation Kelly, without explanation, asked Rugenis to send him "a roster." Ru- genis agreed to send him one.6 Later in August 1984 Kelly received in the mail from Rugenis a sheet of paper dated 20 July 1984 which con-,, tamed the names of 12 persons, their addresses and tele- phone numbers, the ships on which they had been last employed, the dates of their last employment, and the period 'of time they had been unemployed. Included among these names were some of the pursers who had been employed on Delta's freighters which had been taken out of service.' On 30 August 1984 Rugenis telephoned Kelly and told him that he had spoken to Delta's representative Klaus, who had advised Rugenis that Kelly was too far down on the list to be employed anytime in 1984. Kelly told Rugenis that since the last voyage of an M ship was sup- posed to take place in October 1984, that for all practical purposes he was out of a job. Kelly complained to Ru- genis that he thought he should have had the job on the S.S. Santa Magdalena when it last sailed in mid-July 1984, but had been bypassed. Rugenis acknowledged that Cichielo had been assigned as relief purser to that ship, but stated that there was nothing he could do about it. Kelly ended the conversation by stating that he had been bypassed again and that nothing was being done about it and that he would have to complain to someone about the matter.8 6 The description of the telephone conversation which took place be- tween Kelly and Rugenis on 24, August 1984 is based on Kelly's undenied testimony when he gave this testimony, Kelly's testimonial demeanor was good 7 By letter dated 7 December 1984 Fugenis sent Kelly a sheet of paper, dated "12/5/84," entitled "Open-Board Shipping Roster" which con- tained the names of 22 pursers and pharmacists with the names of their employers and the dates they last worked 8 The description of Kelly's 30 August 1984 telephone conversation with Rugenis is based on Kelly's testimony Rugenis testified that it was not he, but Kelly who initiated the telephone call He testified that Kelly "told me that Mr. Bush," who Rugenis thought was employed by Delta as an accountant , "had informed Kelly that boy am I glad that this is your last trip because you are never going to sail with Delta again" Rugenis responded by telling Kelly that he knew nothing about this, that he never had any dealings with Bush, and told Kelly the rumor was that the M ships were going to be taken out of service as they'came in and that perhaps this was what Bush was talking about , but that Rugenis did not know and would have to-check it out I have credited Kelly's testi- mony about this conversation and rejected Rugenis' because Kelly's testi- monial demenor was good , whereas Rugenis' was poor. Likewise, I have rejected Rugenis' testimony that on 30 August 1984, after talking with Kelly, he telephoned Klaus and asked "what the situation was with Kelly" and asked whether "anyone" had told Kelly that he would never Op-31 - August 1984 Kelly wrote a letter to Rugenis which reads as follows: During our telephone conversation yesterday' you informed me that Delta Lines would not assign me to a job for the remainder of the year and probably never again due to the cutback in shipping. You stated I was too far down on the list for assignment. 'In our previous conversation I asked you for the latest roster of assigned personnel to the "M " ships. All I received was a list of names, some of whom were never on any "M" ship roster. The list you sent only shows, dates of last employment. You stated this- list came from Delta and , that company assigned personnel based on the length of time on the beach . It has not worked that way for me many times as I have been bypassed for employment more than once. Your letter of 12 July 1984 tells .of fairness in hiring and the Union. Staff Reporter News of the same date, paragraph 5, Job Rotation, states that as of'7 September 1982 the Purser' unemployed for the longest period is entitled to the next assignment: The company, has not adhered to this agreement. , Who are the permanent assignees? - The latest- "Roster" does not ' indicate . Who actually makes up these so-called rosters? How can a small number of people have, their seniority count while others are arbitrarily denied their seniority rights? These ques- tions have been asked before and never answered by either you or Delta. Since the Union office is lo- cated 3000 miles from San Francisco the member- ship on the West Coast does not have any union representation Based on the foregoing I have no other choice but to seek redress of these unfair practices through arbitration. This letter is a formal request for arbitration of grievances .' I request that arbitration be held in San Francisco, California, where the contractual impro- prieties occurred. This arbitration to be held as soon as possible to forestall any, stalling before the Iasi Delta ship sails. Rugenis did not answer Kelly's 31 August letter. He testified that normally he answered all correspondence and in fact wrote 'a reply to Kelly's 31 August letter; but decided not to send the reply and instead turned Kelly's letter -over to Respondent's attorney James Dooley and instructed him to handle the matter . He testified that his reason for doing this was that he was "quite perturbed" by Kelly's, 31 August letter because "everything" in it "was contrary to the facts"; that Kelly's request for arbi- tration was a matter for Respondent's attorney; and that he was unsure whether Kelly was within his right, in sail for Delta, and that Klaus replied that no one had ever said this to Kelly I have rejected Rugenis' testimony because his testimonial de- meanor was poor when he gave this testimony and, as I have found supra, it was Rugenis who initially told Kelly on 30 August 1984 that Klaus had stated that Kelly would not work for Delta for the remainder of 1984 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asking that the arbitration take place in San Francisco. As described infra Attorney Dooley did not reply to Kelly's 31 August letter until 19 December 1984. It is undisputed that on receipt of Kelly's letter of 31 August 1984 Rugenis did „not by telephone or in writing contact a iepresentative of Delta about Kelly's com- plaints voiced in the letter Rather, Rugenis testified that when he received Kelly's 31 August letter he decided he would take a trip to San Francisco with Respondent's president Gray to personally investigate Kelly's com- plaints. (Tr. 215.) In order to do this, Rugenis testified that he advanced Respondent's San Francisco member- ship meeting usually held in October to 17 September 1984 and about I week prior to 17 September 1984 mailed notices to the members informing them that there would be a membership meeting in San Francisco on that date. Rugenis further testified that on 17 September, accompanied by President Gray, he arrived in San Fran- cisco for the membership meeting and also for the pur- pose of meeting with Delta's representative Terry Klaus and Kelly to talk about Kelly's complaints that he had been bypassed by Delta for job assignments and was not being represented by Respondent. (Tr. 211, 213-214, and 243.) According to Rugenis, after the end of the 17 Sep- tember 1984 membership meeting, Rugenis and Gray vis- ited Klaus and spoke to him about Kelly's situation. (Tr. 211) Regarding the 17 September membership meeting, Rugenis testified that he and Gray went to the place where the meeting was supposed to have been held, but that "no one showed up " (Tr. 227), so Rugenis testified he telephoned the members but none of them, including Kelly, answered their telephones. ' I have rejected Rugenis' above-described testimony in its entirety because: His testimonial demeanor was poor; his testimony was internally inconsistent on a matter of significance-on -being cross-examined , Rugenis admitted, inconsistent with his prior testimony, that he did not meet with Terry Klaus in September 1984 while in San Francisco; his testimony was controverted by Kelly9 and Anderson,10 whose testimonial demeanor was good; and Respondent failed to corroborate Rugenis' testimony by calling either Respondent 's president Gray or introduc- ing into evidence the letter to the membership which Rugenis supposedly sent them about the 17 September 1984 membership meeting In rejecting Rugenis ' above- described testimony, I have considered the testimony of Respondent's witness Alvin Teerlink that he attended a "union meeting" in September 1984 in San Francisco with Rugenis and Gray . Teerlink's testimonial demeanor was poor. Also his testimony is not consistent with Ru- genis', who testified that "no one showed up" for the meeting, and Teerlink's testimony was adduced by means of a leading question (Tr. 160, LL. 21-25), and during his cross-examination it was revealed that the so-called union meeting was a luncheon meeting at a Fisherman's Wharf restaurant attended only by three persons-Teer- link, Rugenis, and Gray Lastly, when asked how he re- ceived notification about the September 1984 member- ship meeting, Teerlink's testimony was vague and eva- sive; he testified, "I thought it was a telephone call. There was a telephone call from this last meeting that was held just this past Friday In talking with Rugenis, he said he thought it was a letter , and I agreed with him. He said it was a letter and I thought it was a phone call." When Kelly did not receive an answer from Respond- ent to his 31 August 1984 letter, on 20 September 1984 he fled the instant unfair labor practice charge against Respondent. The charge which Respondent received on 24 September 1984 alleges that Respondent violated Sec- tion 8(b)(1)(A) of the Act by "[d]uring the past six months . . refusing to process [Kelly's] grievance re- garding work assignment , and refusing to pursue such grievances to arbitration because of irrelevant , invidious and capricious considerations" and "fail[ing] to represent [Kelly] with regard to work assignments by [Delta] in violation of seniority provisions thereby reducing his work assignments." On 5 October 1984 Rugenis wrote Terry Klaus of Delta the following letter: 9 Kelly testified that he did not receive 'either a letter or a telephone call from Rugenis telling him a membership meeting was being held in San Francisco on 17 September 1984 Kelly also testified that Rugenis did not attempt to contact him by telephone at home during September 1984 In this respect Kelly testified that if Rugenis had tried to contact him by telephone, that Kelly would have known about it because he has a telephone answering device attached to his telephone to Anderson, the General Counsel's witness, is a member of Respond- ent who was employed during the time material by Delta as a purser, and who resides in San Francisco , California He testified that he did not re- ceive either a letter or a telephone call from Rugenis informing him that a membership meeting was being held in San Francisco 17 September 1984 He also testified that if Rugenis had tried to reach him by tele- phone Anderson would have known because he has a telephone answer- ing device attached to his telephone In crediting Anderson 's testimony I have considered that George Merritt controverted Anderson's further testimony that when Kelly sailed with Anderson that Anderson was un- aware that any of the other pursers were, having problems with him Merritt, a member of Respondent who was Respondent's witness, testi- fied that he spoke to Anderson about Kelly's work performance in a highly critical manner in 1983 and 1984 more than once, and that once had specifically informed Anderson that he lived in fear of having to sail with Kelly and hoped that he would never have to sail with Kelly ever again Anderson testified that although he and Merritt made several voy- ages together that Merritt never spoke to him about Kelly's work per- formance I have credited Anderson 's testimony because his testimonial We have reviewed, as best we can, the process of shipping Pursers followed by Delta. We have noted inconsistencies and glaring viola- tions of the current collective bargaining agreement in at least one instance. Based on your letter of November 16, 1983, copy attached, it would appear that Myron J. Mason was shipped on the S.S. Santa Mariana out of turn on 4/23/84. Your records will indicate that he left the S.S. Santa Maria on 2/5/84. It has come to our attention that you by-passed at least three (3) probably four (4) Pursers who had demeanor was better that Merritt 's, and his testimony is undisputed that Merritt would have had no reason to speak to him about Kelly's work performance because Kelly never worked on any of the voyages on which Anderson and Merritt sailed together Morever, while both An- derson and Merritt appear to be disinterested witnesses, I note that Ru- gems, after becoming secretary-treasurer, pressed Anderson's discharge grievance to a successful conclusion, which indicates that Anderson would not be hostile toward Rugems' interests in this proceeding STAFF OFFICERS (DELTA STEAMSHIP) been ashore for a period longer than Mr. Mason had, consequently, they should have been given the option of the S.S Santa Maria for the voyage com- mencing 4/23/84 I would want a written explanation within the next two weeks from you as to how and why this happened. I am advising you, now, that I am going to submit a claim on behalf of the by-passed Purser, if it is determined that you have violated the Agree- ment. Rugenis testified that the information contained in his 5 October letter was obtained from Attorney Dooley who told him that he had received it from the Board in con- nection with the Board's investigation of Kelly's unfair labor practice charge. Rugenis further testified that this was the first time he had received information which showed that certain pursers had been moved ahead of Kelly without any reason. When Delta failed to answer his 5 October 1984 letter, Rugems by letter dated 14 November 1984 wrote Klaus stating that Respondent was still waiting for his reply to the 5 October 1984 letter and asked for an immediate reply. Delta never answered this letter. However, on an undisclosed date Klaus, according to Rugenis, tele- phoned Rugenis and referring to the 5 October letter asked what Rugenis wanted. Rugems replied by stating that he thought that the letter was very plain and spoke for itself. This ended the conversation On 19 December 1984 Attorney Dooley wrote Kelly, in pertinent part, as follows: This letter is being written pursuant to an agree- ment between Boren Chertkov, Esq. of the N.L.R.B. and myself, to which he consented, the purpose of which is to request that you advise me, in writing, or Joe Rugenis, in writing, of the nature of the charges that you are presenting against the S.O.A. with the N,L R B. The most recent correspondence addressed by you to the S.O.A., was, your 31 August, 1984 letter to Joseph W. Rugenis, and I will attempt now to address the issues raised in same on behalf of Mr. Rugenis, First of all Mr. Rugenis never told you that you would not be assigned a job for the remainder of the year and would probably never again work due to' a cutback in shipping; what be told you, is what he is telling and has told the other Delta Line purs- ers: that all indications were that the "M" ships were to be phased out of service by the end of 1984, and that same would either go onto freighter status (in which instance only purser would serve aboard the vessel) or would be laid up. As you know by now, Delta has decided to lay these ves- sels up, or more accurately, to return them to their owners, Prudential Lines, Inc. There is no indica- tion that Prudential intends to continue these vessels in service. Your statement, attributed to Mr. Ru- genis, that you were too far down on the list for 1147 "assignment" is denied by him. What you were told was that based on the aforesaid informal ion (either the freighter status of the vessels or lay-up) you would have to wait your turn -for employment. You know, as well as Delta Lines, that the S O.A. does not assign relief purser personnel to any company vessels; these assignments were made by Delta, and the S.O.A. does not participate in the process, at all. For example, have you ever telephoned S.O.A. to advise it of your being assigned to a vessel, the date of said assignment, etc.? The S O.A. receives the names assigned to various vessels after same are made, pursuant to telephone calls, and sometimes by letters, with Delta Lines. As you well know, the Relief Purser Roster now includes all Delta Pursers eligible for relief assign- ments, including those who served aboard Delta freighters that are now out of service. We cannot understand why you haven't grasped the language in the Agreement defining "Permanent Pursers," "Relief Pursers" and Seniority. 'Previous to your writing the August 31 letter, Mr. Rugenis forwarded to you a copy of the Delta Purser Per- sonnel Roster, both Permanent and 'Relief Your comment in your letter that "the latest Roster you received"-[was] a list of names some of whom were never on any "M" ship roster is irrelevant. If this is the basis for your grievance against S.O.A., then same has to be rejected because, quite simply, all Delta Line Pursers are on the same Permanent/Relief roster now. The elimination of the Delta freighters as the source of employment, has compelled both the S.O.A. and the employer to divide the available work, including that aboard the "M" ships among the remaining pursers. In Paragraph 3 of your letter, you misnamed the "Staff Officer and Dateline S.O.A." as "the Union Staff Reporter News." Be that as it may, "Job Rota- tion" was negotiated between S.O.A. and the em- ployers in 1983. While, in the ordinary course of events, the purser who was longest on the beach is entitled to the next assignment, in your instance, there are S.O.A. members who have indicated that they do not want to ' sail with you. Based on the Complaints that you have filed with Delta Lines and the S.O.A. involving these Pursers, which were unfounded and unproven, their reluctance is under- standable. Delta demanded and justifiably so, that there be a certain peace and harmony among the Pursers on its passenger ships; you have been ad- vised of this and have lived with this in the past. Mr. Rugenis advised you that if there is any in- stance where you have been passed over for em- ployment aboard vessels' where there was not a problem with the other pursers, then the S.O.A. was prepared to process your Complaint immediate- ly. You asked about "Permanent Assignees." The copies of the Purser Rosters which had been for- warded to you should answer that question. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I 'therefore repeat on behalf of the S.O.A. that you address your grievances with specificity, giving us Maces, names, dates, etc. Once you do so the S.O.A.` will vigorously pursue your grievance. There is no way, absent this infomation, that your "formal request for arbitration of grievances" can be' recognized. What do you want arbitrated? What are ''your grievances? How has Delta violated the Agreement? What are' the issues? What are the facts? By letter dated 3 February 1985 Kelly responded to Attorney Dooley's 19 December letter, as follows- In response to your letter of December 19, 1984, you asked that I state my grievances. Once again I am detaining this information. As you know it was the union's failure to process my grievances which led me to file charge's with the National Labor Re- lations Board. In April, 1984 the S.S. Santa Mariana sailed with Mason aboard. Since I was on the beach since De- cember, 1983 and Mason was on the beach since February, 1984 I felt that I should have been as- signed that voyage. I called Mr. Rugenis to grieve that I had been passed over. Mr. Rugenis said, "There is nothing I can do about it since Mr. Griffiths makes the assign- ments." This statement clearly indicates Mr. Rugen- is's refusal to represent my grievance. Mr. Rugenis did not respond to my request that the union defend seniority rights as outlined in the union contract. I did sail on the S.S. Magdalena about May 15 to July 15, 1984. In late August I learned that Cichielo was assigned a voyage on the S.S. Santa Maria. I called Mr. Rugenis to inform him that I had more time on the beach than Cichielo. He agreed that I did have more time on the beach than Cichielo. Following my conversation with Rugenis about the Cichielo assignment, I wrote him a letter on August 31, 1984 expressing concern about the union's fail- ure, to protect my seniority rights. I restated my re- quest for a roster of personnel assignments to the "M"ships and made a formal request that the union greive [sic] and arbitrate the issue of purser assign- ments in violation of seniority principles. I might and that only with complete list of purser assign- ments for the past two years showing the time on the beach of those people assigned could I make an evaluation of how many, other, times I have been passed over.' It would seem that the union would have this infor- mation in order to effectively represent its members. Having never received a response from the S.O.A. on my'requests to process a greivance [sic] and for appropriate rosters I requested, I filed charges with the N.L.R.B. on September 29, 1984 (inadvertantly the date-March 21, 1984 accompanied my signature, due to a copying error). I remain interested in a resolution of this matter and trust that the union will soon be sending me the ros- ters and/or other information for the past two years which identify the pursers who sailed,,their respec- tive ships, the dates of sailing, and times on the beach prior to sailing, , as well as processing my greivances. Roster information in your letter of De- cember 7, 1984 entitled "Open Board Slipping Roster" does not show Mason or Cichielo, nor does it show on what ships the listed pursers acutally sailed. Finally, your letter refers to purser-crew computabi- lity. It seems only fair that the union outline the basis of these charoes [sic] with facts, names, dates, places, log entries, letters of reprimand, and so on. B. Analysis and Conclusionary Findings 1. Respondent's affirmative defenses Respondent's answer to the complaint alleges several separate affirmative defenses, as follows. (1)_ the allega- tions in the unfair labor practice charge on which this proceeding is based are "vague and nonspecific;" (2) Re- spondent was precluded from resolving the ' Charging Party's grievance because of the failure of the Charging Party and the Board's Regional Office to inform Re- spondent of the basis for the charge; (3) the allegations in the charge are time-barred by the 6-month- limitations period contained in Section 10(b) of the Act,; (4) the charge is identical in ' substance and form to the, Charging Party's previous charge filed against Respondent 21 March 1984 in Case 20-CB-6177, which was withdrawn on 31 May 1984 with the approval of the Board's Re- gional Director; and (5) the forum selected by the Charging Party, Region 20 of the Board, is a "Forum Non-Convenieris" because Respondent's office is located within the geographical jurisdiction of Region 22 and the employee involved, which does business within the geo- graphical jurisdiction of Region 22, no longer does busi- ness winthin the geographical jurisdiction of Region 20. For the reasons set forth hereinafter, these affirmative defenses are without merit. Regarding (1), it is settled that an unfair labor practice charge is not' not a formal pleading, its function is not to give notice to the respondent of the exact nature of the charges against him, rather- this is the function of the complaint. NLRB v. Fant Milling Co, 360 U.S. 301 (1959); Texas Industries v. NLRB, 336 F.2d 128, 132 (5th Cir. 1964). Here I am satisfied that the charge which al- leges, among other things, that "[d]uring the' past six months [Respondent] `by its officers, agents and repre- sentatives, restrained and coerced William Kelly by re- fusing to process his, grievance regarding work assign- ment, and refusing to pursue such grievances to arbitra- tion because of irrelevant, invidious and capriciou's con- siderations" in'violation of Section 8(b)(1)(A) of the Act, provided a sufficient basis forthe issuance of the com- plaint. I note that Respondent has never contended that the, complaints unfair labor practice allegations lacked the requisite specificity so as to enable Respondent to defend against them. STAFF OFFICERS (DELTA STEAMSHIP) 1149 Regarding (2), there is no evidence to support this al- legation. Quite the opposite, when Respondent asked the Charging Party to clarify his unfair labor practice charges, he complied with this request. Regarding (3), there is no evidence that the allegations contained in the charge are time-barred by the limitations proviso of Section 10(b) of the Act. Rather, the allega- tions of the complaint and the evidence presented in sup- port of those allegations are well within the 6-month lim- itations period. The evidence of events which took place outside the 6-month limitations period was received only for the light that such events shed on events which oc- curred within the 6-month limitations period. Regarding (4), the charge filed in this case involves matters which took place after the Charging Party filed his previous charge in Case 20-CB-6177 and which were not considered in the investigation of that charge. In any evens, the law is settled that the disposition of a charging party's charge by the Board's Regional Director is not res judicata as to a subsequent charge filed by the same charging party covering the identical subject -matter as the previous charge. See Operating Engineers Local 406 v. NLRB, 101 F.2d 504 (5th Cir. 1983); - Regarding (5), the Board's Rules and Regulations, Sec- tion 102.10, provide that a charge "shall be filed with the regional director for the region in which the alleged unfair labor practice has occurred or is occurring" and that "a charge alleging that an unfair labor practice has occurred or is occurring in two or more regions may be filed with the regional director for any such regions." The instant charge in effect alleges, that Respondent breached its duty of fair representation in representing Charging Party Kelly in connection with his employ- ment by Delta as a relief purser aboard Delta's M ships whose home port is San Francisco, California, where Kelly lives. Under these circumstances it was riot unrea- sonable for Kelly to file his charge with the Board's Re- gional Office for Region 20 which is located in San Francisco. Respondent has not shown how it has been prejudiced in this litigation by Kelly's filing of the charge with„ the Board's San Francisco Regional Office rather than with the Regional Office where Respondent's office is located. And there is no evidence that Respond- ent has ever requested that the Board's General Counsel transfer the charge from Region 20 to, Region 22. See Section 102.33(a)(3) of the Board's Rules and Regula- tions. 2. Kelly's request for information The complaint in pertinent part alleges that in viola- tion of Section 8(b)(1)(A), "[s]ince on or about 24 August 1984, and continuing to date, Respondent has failed to process a grievance concerning a request for a seniority list showing Delta's assignment -of pursers .. . which Kelly filed under the provisions of the [Respond- ent's contract with Delta]" and that "Respondent en- gaged in this conduct . . . arbitrarily because of Kelly's dissident union, activity," and that by engaging in the aforesaid conduct, "Respondent has failed to represent Kelly for reasons which are unfair, arbitrary, invidious and a breach of the fiduciary duty owed the employees whom it represents." For the reasons set forth herein- after, I am persuaded that the General Counsel has failed to prove this allegation. As I have described in detail supra, the General Coun- sel presented evidence which establishes that on 24 August 1984 Charging Party Kelly spoke to Respond- ent's secretary-treasurer Rugenis and asked whether Ru- genis knew when Kelly would receive his next job as- signment from Delta as a relief purser, and complained to Rugenis that Delta in the past had bypassed him in as- signing jobs. Kelly also asked Rugenis to send him "a roster." Kelly did not explain why he wanted "a roster," but simply asked for "a roster." Less that I week later Kelly received by mail from Rugenis a copy of a roster. This roster was dated 20 July 1984 and contained the names of 12 persons, their addresses and telephone num- bers, the names of the ships on which they were last em- ployed, the dates of their last employment, the length of time they had been unemployed, and for those who were on vacation the date their vacation ended. Included among those names were some of the pursers who had been employed on_ Delta's freighters which had been taken `out of service. The fact that the 20 July roster which Rugenis sent to Kelly did not include all the names of Delta's relief purs- ers does not mean that it was not a genuine roster used by Delta in making work assignments. For it appears that those relief pursers who are currently on work as- signments are not included on the current rosters main- tained by Delta and Respondent. i i Thus, the record shows that relief pursers Cichielo and Teerlink, whose names do not appear on the 20 July roster, had been as- signed to work by Delta shortly before the 20 July roster was prepared and were presumably working when the roster was prepared. Also the fact that Kelly objected to the fact that some of the pursers who had been assigned to Delta's freight- ers, which had been taken out of service, were now, being included on the roster, does not detract from the genuineness of the roster, inasmuch as Respondent and Delta had reached an agreement to include those pursers on the roster. In summation, the sole evidence of a "request for a se- niority list showing Delta's assignment of pursers ," as al- leged in the complaint, which Kelly made to either Re- spondent or Delta during the time material to -the com- plaint's allegations, was 'Kelly's above-described request that Respondent's secretary-treasurer Rugenis furnish him with "a roster," a request which Rungenis complied with. It is,for this reason that I shall recommend that this portion of the complaint be dismissed.12 i i I believe that it is a fair inference that this is the case since the ros- ters are used by Delta and Respondent to determine who is next in line for work assignments Therefore,- it would make little sense to include on the rosters the names of the relief pursers currently working at sea, 12 The complaint, by its language-"failed to process a grievance con- cerning [Kelly's] request for a seniority list showing Delta's assignments of pursers"-appears to allege that Kelly was grieving to Respondent about Delta's refusal to furnish him with "a seniority list showing Delta's assignment of pursers " However, the evidence presented by the General Counsel shows that Kelly asked Respondent, not Delta, to furnish him with certain information, and that the information which Kelly requested was not "a seniority list showing Delta's assignment of pursers," but Continued 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The- fadf'that Kelly, on receiving a, copy,of the roster which he had requested, concluded that the information contained therein was-insufficient for his purposes is not relevant to this proceeding 'inasmuch as Respondent could not have been expected to read Kelly's mind. Re- spondent furnished Kelly with the information requested. It was only in his 3 February 1985 response to Attorney Dooley's_letter that Kelly for the first time placed, Re- spondent on notice that what he really wanted was "the rosters and/or other information for the past two years Which identify the pursers who sailed, their respective ships, the dates of sailing, and times on the beach prior to `sailing:" Kelly's belated request that Respondent fur- nish him, with this information, made almost 1-1/2 months- after, the issuance of the complaint herein, was not included within the scope of the allegations con- tained in the complaint and was not litigated by the par- ties. - 3 Kelly's grievance As I have described in detail supra, on 31 August -1984 Charging Party Kelly wrote Respondents' secretary- treasurer Rugenis- complaining that, among other things, Delta was -bypassing him in- the assignment work of work, and that he was not having his seniority counted like those pursers who were assigned to ships on a per- manent basis. More specifically, 'Kelly in his 31 August letter acknowledged that Rugenis had previously told him that' pursuant to Respondent's agreement with Delta, the relief purser who had been unemployed for- the long- est period of time was entitled -to the next job - assign- ment, regardless of his seniority. Kelly complained to Rugenis-that in his case Delta had not complied with this agreement, but instead had bypassed him more than once in, assigning jobs: Kelly also complained that seniority rights were being granted to the small number of,pursers who were permanently , ' assigned to Delta's M ships, whereas Kelly and the other' relief pursers were being ar- bitrarily denied seniority rights: Kelly 'ended his 31 -August letter by stating that,he had "no other choice but to seek redress of these unfair practices through arbitra- tion" and further stated, "this letter -is a formal request for arbitration,of grievances," and asked that the arbitra- tion be held as soon as possible in San .Francisco where the alleged "contructual - improprieties, occurred." It is undisputed- that, Respondent did not submit Kelly's above described 31' August 1984 grievance to the "Purser Personnel Board" which is the 'first step of the grievance and arbitration procedure contained ' in the governing collective-bargaining contract. i s The question rather "a roster " Thus, the question posed is whether Respondent fur- nished the information Kelly requested and, if not, did Respondent by its failure to furnish'the requested information breach its duty-of fair repre- sentation owed Kelly, in violation of Sec S(b)(1)(A) of the Act Since I have found that Respondent complied with Kelly's request for informa- tion,' I' have not decided whether a refusal to furnish the information he requested would have violated Sec 8(b)(1)(A) or whether such an allega- tion was encompassed by the allegations of the complaint or, if not, was fully litigated to As I have described supra, the grievance and arbitration procedure in the Respondent's contract with Delta provides, in pertinent part, that all contractual disputes shall first be submitted by the parties to a purser personnel board, consisting of two union and two employer representa- for decision is whether Respondent 's failure to submit to the purser personnel board 'Kelly's 31 August 1984 griev- ance that he was bypassed by Delta for job assignments and was being arbitrarily denied seniority rights consti- tuted a breach of Respondent 's duty of fair representa- tion in violation of Section ' 8(b)(1)(A) of the Act.14 Respondent has a -statutory duty to represent fairly Charging Party Kelly and all the other pursers, who were employed by, Delta and represented by Respond- ent. See Miranda Fuel Co., 140 NLRB 181 (1962) It is settled that a union breaches its duty of fair representa tion when it engages in conduct affecting employees, it represents which is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 11S.,171 (1967). It is also ,settled, however, that something more than mere negligence or the exercise of poor judgment on the part of the union must be shown in order to support a finding, of arbitrari- ness. Teamsters Local -692 (Great Western Unifrezght), 209 NLRB 446 (1974), and Office Employees Local 2,, 268 NLRB 1353 (1,984). Accord: Dente v. International, Orga- nization of Masters Local 90, 492 F.2d 10, 11-12 (9th Cir. 1973) (simple negligence "not enough"); NLRB v.-Postal Workers, 618 F.2d, 1249, 1255 (8th Cir. 1980) ("mere neg- ligence, poor judgment or ineptitude are insufficient to establish a_breach of the duty of fair representation",). Initially, I find that the General Counsel has not estab- lished that--Respondent discriminated against Kelly by failing to submit his above-described grievance to the contractual grievance and arbitration procedure. There is no evidence that by this conduct Respondent treated Kelly's grievance any different than -similar grievances of other unit employees Also there is no evidence that Re- spondent failed to prosecute Kelly's ' grievance because its secretary-treasurer Rugenis was personally hostile toward him because of his efforts to remove Rugenis from office, or for -any other reason . There is no evi- dence that - Rugenis ' was antagonistic toward Kelly `for personal reasons or that Rugenis either 'said or did any- thing which would warrant the inference that he was an- tagonistic toward Kelly 'or any of the other members of Respondent because of their effort to have 'him- removed from office . I also note that there is virtually no differ- ence in the manner in which Rugenis treated Kelly's 31 August 1984 grievance from the way in which he treated Kelly's grievances prior to Kelly's opposition to Rugenis' leadership, which Kelly first expressed at the 17 October 1983 membership meeting.15 As a matter of fact it ap- Lives, and if that board is deadlocked, the dispute may be submitted by either of the parties., to a neutral arbitrator for a binding decision 14 I realize that the complaint alleges, in pertinent part, that Respond- ent violated its duty of fair representation by "failfingi to process a griev- ance concerning Delta's failure to assign Kelly to work according to seniority," and does 'not specifically allege as a violation of the' Act Re- spondent's failure to prosecute Kelly's grievance that Delta-was bypass- ing him when it made job assignments The reason that I-have considered whether Respondent's failure to prosecute Kelly's grievance that he had been bypassed for job assignments violated its duty of fair representation is because this issue is closely related to the allegations of the complaint, if not in fact encompassed by those allegations, and the parties fully-liti- gated the matter is I realize that Rugenis referred Kelly's 31 August 1984 grievance, to Respondent's attorney to handle; whereas in the past he had responded to Continued STAFF OFFICERS (DELTA STEAMSHIP) 1151 pears from the record that one of the reasons why Kelly on 17 October 1983 announced his opposition to Ru- gems' leadership was because of Rugems' failure to do anything about Kelly's prior grievances. It is for all of the aforesaid reasons, that I find that the General Coun- sel has failed to prove that Respondent's failure to submit Kelly's 31 August 1984 grievance to the contractual grievance and arbitration procedure was discriminatory. am also persuaded that the General Counsel has not established that Respondent, acted arbitrarily or in bad faith when it failed to submit Kelly's 31 August 1984 grievance to the contractual grievance and arbitration procedure. My reasons for reaching this conclusion follow. The portion of Kelly's grievance alleging that, as a relief purser he was entitled to the same "seniority" rights as the, permanetly assigned pursers was clearly frivolous. As described in detail supra, the governing collective-bargaining contract provides that relief assign- ments shall be made to pursers on the basis of their length of unemployment and not by seniority. Respond- ent's 12 July 1984 edition of its, newspaper reminded Kelly and the other relief pursers of this provision. Ru- genis, in this edition of the newspaper, advised the Re- spondet's members `that to be sure that employment op- portunities among the pursers were being equally divid- ed, the following provisions'of the governing collective- bargaining contract, among others, Were being enforced: 4. Seniority is not necessarily the determinant of eligibility for -a relief assignment, 5. All other qualifications being equal, the relief Purser who has been unemployed for the longest period of time is entitled to the next relief assign- ment even if he is not the most senior relief Purser at the time. Kelly, when he testified in this case, admitted that at all times material the relief pursers employed by Delta were assigned to their jobs in the manner described above in paragraph 5 of the 12 July 1984 edition of the Respond- ent's newspaper. Kelly, however, thought he should re- ceive work assignments ahead of those relief pursers with less seniority, even though they may have been out of work longer than Kelly. Late in 1983, as I have found supra, Kelly grieved about this to Rugenis and was 'told by Rugenis that, the relief pursers' seniority did not dic- tate their right to employment which, Rugenis explained, was based on the length of time they had been unem-' ployed. Kelly at no time-either to Respondent or when he testified in the case-explained the basis for his claim that his employment as a relief purser should be gov- erned by principles of seniority. Under these circum- stances, Kelly's grievance that he was entitled to the same seniority rights accorded the permanently assigned pursers, was clearly frivolous. Considering the clearly Kelly's grievances personally However, there is nothing sinister about this because prior to 31 August 1984, Kelly had never filed with Rugents "a formal request for arbitration " It was not unreasonable for Rugenis to refer this to Respondent's attorney, particularly where the first step of the contractual grievance and arbitration procedure calls for the submis- sion of a grievance to a purser personnel board, not to arbitration frivolous nature of this grievance and the fact that Ru- genis late in October 1983 had -previously rejected this grievance, the Respondent's failure to submit the griev- ance to the grievance and arbitration procedure when Kelly raised it again on 31 August 1984 was not.an arbi- trary decision but was made in good faith. 16 _' Regarding the portion of Kelly's 31 August 1984 grievance alleging that in violation of the governing col- lective-bargaining contract, Delta had bypassed him more than once when making job assignments, even though he had been unemployed longer than the persons assigned the jobs, the record, as described in detail supra, reveals that beginning as far back as 1981 and during 1983 and 1984 Delta had bypassed Kelly for employment as a relief purser on a substantial number of occasions be- cause Delta claimed that certain senior pursers perma- nently assigned to Delta's ships had indicated to Delta that they did not want to work with Kelly because he was too argumentative. This occurred in 1983 and ' 1984 one five or six occasions and, on each occasion, Delta's industrial relations manager Griffiths notified Respond- ent's secretary-treasurer Rugenis that Delta was bypass- ing Kelly and the reason. Rugems, who had questioned Respondent's membership and learned that three of the pursers permanently assigned to work on Delta's ships did not want to work with Kelly, did not object' to Delta's bypassing of Kelly.17 When Kelly, during this period, complained to Rugenis about being bypassed; Ru- genis, as described in detail supra, told him that one of the reasons he was being bypassed was, according to Delta, he was having trouble getting along with certain pursers. Kelly told Rugenis that this was not true, but it was not until his 31 August 1984 grievance that Kelly asked, Rugenis to prosecute a contractual grievance con- testing Respondent's actions. Kelly's 31 August 1984 grievance, however, did not point to a particular' job as- signment from which Kelly had been bypassed in viola- tion of the contract, rather Kelly just complained that "I have been bypassed for employment more than once. Ryigenis testified that on reading Kelly's 31 August 1984 grievance he concluded, among other things, that there was insufficient information contained therein to permit him to present the grievance to an arbitrator and that this was one of the reasons for Respondent's attorney Dooley's 19 December 1984 letter toKelly. (Tr. 25,3.) As I have described in detail supra, in this letter Attorney Dooley informed Kelly that, as Kelly has been advised in' the past, Delta had bypassed him for -employment be- 16 See Dutrisac v. Caterpillar Tractor Co, 749 F.2d 1270, 1275 (9th Cu. 1983) ("[W]e agree and would find no breach of [the] duty of fair repre- sentation were the claim so meatless as to be frivolous for there is no duty to represent a member in respect to a frivolous claim ") Buffalo Newspaper Guild Local 26 (Buffalo Courier), 220 NLRB 79, 79 fn 4 (1975) (same) 17 Other employers covered by the governing collective-bargaining contract herein have bypassed pursers for job assignments for reasons similar to Delta's reason for bypassing Kelly As in the case of Kelly, Ru- gems has allowed them to do this without objection (Tr 205-206) The parties to the governing collective-bargaining contract have apparently interpreted the proviso "all other things being equal" which is contained in the portion of the contract governing job assignments to pursers, as allowing the employer's discretion to refuse to assign pursers to a ship on which the purser's superior does not want to work with him 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause it had been informed by certain pursers that they did not want to work with Kelly. However, in view of the lack of specificity in Kelly's 31 August 1984 griev- ance, Attorney Dooley's 19 December 1984 letter goes on to say that if there was any specific instance where Kelly had been passed over for employment which Kelly felt was not due to a problem between himself and one of the regular pursers assigned to the ship, Kelly should notify Rugenis about this particular assignment and fur- nish Rugenis with the relevant details. Considering the past history of Respondent bypassing Kelly for job assignments on a significant number of oc- casions because of his alleged inability to get along with some of the regular pursers assigned to Delta's ships; considering that this was common knowledge to both Kelly and Respondent during this entire period of time; considering that Kelly's 31 August 1984 grievance did not specify any specific voyage or voyages but was worded in generalities, merely alleging that he had been bypassed for employment more than once;18 I am per- suaded that Respondent's decision not to prosecute this grievance but instead to ask Kelly to furnish it with the specific job assignments that he was complaining about, was not an arbitrary or unreasonable decision. Given the lack of specificity in Kelly's 31 August 1984 grievance, I find that under the circumstances the Respondent's fail- ure to prosecute the grievance, but instead to secure more detailed information from Kelly was not the kind of conduct which was outside the "wide range of reason- abless" (Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)) accorded to a statutory bargaining representa- tive.19 I recognize that Respondent's decision not to pros- ecute Kelly's grievance, but to get more specific infor- mation from Kelly in -order to better evaluate his 'griev- ance, was not communicated to Kelly by Respondent for more than 3 months. . However, in the circumstances of this case, this omission does not constitute anything more than mere negligence. Respondent reasonably decided that it needed more specific information from Kelly in order to evaluate his grievance. There is no evidence that Respondent harbored any personal hostility toward Kelly or that Respondent's delay in communicating its decision to him was intended to prejudice him in any way. As a matter of fact , Kelly's right to file a grievance has not been extinguished because there is no time limita- tions period in the contractual grievance and arbitration procedure. In other words where, as here, Respondent has merely failed to promptly advise Kelly of a reason- ably based decision concerning his grievance, and the omission was not the product of personal hostility and did, not extinugish any grievance rights Kelly otherwise had, Respondent's failure to notify Kelly for over 3 months about its decision concerning his grievance did not amount to anything more than mere negligence which is not sufficient to consititute a breach of its duty of fair representation in violation of Section 8(b)(1)(A). Office Employees Local 2, 268 NLRB 1353, 1355-1356 (1984). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edzo is I realize that shortly before Kelly's 31 August 1984 grievance, in his telephone conversations with Rugenis on 24 and 30 August 1984, he complained about Delta's failure on 17 July 1984 to assign him, rather than Cichielo, to the S S Santa Magdalena However, Kelly's 31 August grievance does not, directly, or by implication, refer to this complaint And it is not surprising that it did not occur to Rugems that this is what Kelly's 31 August grievance was talking about For, Kelly's complaint that he was entitled to the 17 July job assignment instead of Cichielo was so frivolous that it would not have reasonalby occurred to Rugenis that Kelly's 31 August grievance was meant to encompass this complaint. Thus, as described in detail supra, Respondent's agreement with Delta provides, in pertinent part, that the relief purser who has been unem- ployed for the longest period of time is entitled to the next relief assign- ment and that on the termination of a relief assignment the relief purser must take and exhaust his vacation credits to be eligible for another relief assignment. Here at the-time of Cichielo's 17 July assignment, Kelly had ended a 2-month voyage only 2 days earlier and was on-vacation having approximately 30 days of vacation credits to exhaust ORDER The complaint is dismissed in its entirety. 19 I have-not considered whether Respondent's conduct subsequent to its receipt of Kelly's 3 February 1985 written response to Attorney Doo- ley's 19 December 1984 letter constituted a breach of its duty of fair rep- resentation in violation of the Act, This issue is not encompassed by the allegations of the complaint and was not litigated Indeed, the General Counsel objected to the introduction of Kelly's 3 February 1985 letter on the grounds of relevancy , and while I admitted this letter into evidence, neither party attempted to present evidence concerning what, if anything, Respondent did on the receipt of this letter with respect to Kelly's evi-' dente. 20 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