Furniture Workers Local 76B (Office Furniture)

FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) 51 Amalgamated Industrial Union, Local 76B and its Divisions, Local 92-Local 76 (Local 76B Divi- sion) of the United Furniture Workers of Amer- ica, AFL-CIO (Office Furniture Service, Inc.) and Juan Dominguez. Case 29-CB-6514 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On November 20, 1987, Administrative Law Judge Jesse Kleiman issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. The Respondent filed a brief in sup- port of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I 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. As And For A First Affirmative Defense Failure to state a cause of action on behalf of Julio Delgado and Rogelio Rodriguez inasmuch as they have not been named as complaining parties in the Complaint and have not charged the [Union] with comitting any wrongful acts with respect to the Union 's representation of their rights and inter- ests in the subject arbitration , which is that basis of the instant complaint. Second Affirmative Defense Lack of Jurisdiction Third Affirmative Defense Statute of Limitations A hearing was held before me in Brooklyn, New York, commencing on 19 May 1987 and ending 10 July 1987, comprising 11 trial days All parties were afforded full opportunity to appear, to introduce evidence, to ex- amine and cross-examine witnesses, to argue orally on the record, and to file briefs. Both the General Counsel and the Respondent filed briefs. In its brief the Respond- ent moves for dismissal of the complaint in its entirety for failure of proof. For the reasons appearing herein- after, I grant the Respondent's motion to dismiss the complaint. On the entire record and the briefs of the parties and on my observation of the witnesses, I make the following FINDINGS OF FACT I The amount of the Respondent's gross revenues discussed in sec iI1,B,2,b, of the judge's decision should be $4 million not $4000 Martha Rodriguez, Esq., for the General Counsel. Harold Chetrick, Esq., of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE JESSE KLEIMAN, Administrative Law Judge. On a charge filed on 19 November 1986 by Juan Dominguez (Dominguez or the Charging Party), the General Coun- sel of the National Labor Relations Board by the Re- gional Director for Region 29, issued a complaint and notice of hearing on 30 January 1987, against Amalga- mated Industrial Union, Local 76B and its Divisions, Local 92-Local 76 (Local 76B Division) of the United Furniture Workers of America, AFL-CIO (the Respond- ent or the Union), alleging that the Respondent had en- gaged in certain unfair labor practices in violation of Section 8(b)(1)(A) of the National Labor Relations Act (the Act). On 19 May 1987 the Respondent duly filed an answer denying the material allegations in the complaint. The Respondent's answer also contained the following affirmative defenses: 1. THE BUSINESS OF THE EMPLOYER Office Furniture Service, Inc. (the Employer) is a New Jersey corporation with its principal office and place of business located at 47-44 31st Street, Long Island City, in the borough and county of Queens, city and State of New York, I where it is, and has been at all times material , engaged in the business of manufacturing, refinishing, polishing, repairing, and servicing office fur- niture for wholesale and retail sale and rental, to firms in New York, New Jersey, and Connecticut In the course and conduct of the Employer's business operating during the preceeding 12 months, these operations being repre- sentative of its operations at all times material , the Em- ployer derived gross revenues in excess of $4 million, part of which comprised revenues of approximately $460,000 in retail sales, and purchased and received at its above facility goods and materials valued in excess of $50,000 directly from firms located outside the State of New York The complaint alleges, and although the Re- spondent denies this allegation, I find that the Employer is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ' The Employer occupies the 10th floor of a commercial building lo- cated at this address and its various departments such as the carpentry shop, the welding shop, the sheet metal shop, the upholstery shop, and the refinishing shop are all situated on this floor 290 NLRB No. 10 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find that Amalgamated Industrial Union Local 76B and its Divisions, Local 92-Local 76 (Local 76B Division) of the United Furniture Workers of America, AFL-CIO is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The complaint also alleges, the Respondent admits, and I find that at all times material, by virtue of Section 9(a) of the Act, the Respondent has been and is now the exclusive bargaining representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, of all employees of the Employer in a unit appropriate for the purposes of collective bargaining composed of, "All employees engaged in any and all work that may be necessary in the manufacture and as- sembly of furniture in all of its branches and all other production work in its plant , excluding clerical help, de- signers, artists executives and supervisory employees."z Additionally, the complaint alleges, the Respondent admits, and I find that at all times material the Respond- ent and the Employer have maintained and enforced a collective-bargaining agreement covering wages, hours, and other terms and conditions of employment of the Employer's employees in the unit described above and containing therein a grievance and arbitration procedure. Moreover, the complaint alleges, the Respondent admits, and I find that Luis Torres is, and has been at all times material, a business representative of the Respondent, acting on its behalf, and an agent thereof.3 III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that about 10 September 1986, the Respondent by certain acts and conduct represented discharged employees Juan Dominguez , Julio Delgado, and Rogelio Rodriguez in a "grossly negligent manner at their arbitration" for reasons that were unfair, arbitrary, invidious and a breach of the fiduciary duty owed the employees it represents, and by such acts and conduct the Respondent has restrained and coerced these employ- ees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. The Re- spondent denies these allegations. A. The Evidence 1. Background The Employer maintains a furniture refinishing depart- ment as part of its business operations. About March or April 1986, the Employer was approached by one of its major customers, Citibank, regarding an office furniture refinishing job. Michael Marshak, the Employer's presi- dent, testified that acceptance of this job would require 2 The Employer employs between 60-70 employees in its business op- erations. a The parties also stipulated that Jorge Zapata , foreman of the Employ- er's refinishing department, is a supervisor within the meaning of Sec 2(11) of the Act. overtime work by the refinishing department employees in order to meet projected delivery dates and, therefore, although his inclination was to decline the job, he first met with these employees to ascertain whether they were willing to take on this work and the overtime re- quired.4 The refinishing employees unanimously agreed that the Employer should accept the Citibank job be- cause it meant "steady work and a lot of overtime," and the Employer did so . Employed in the refinishing depart- ment at the time were Jorge Zapata, the department foreman , Juan Dominguez, Julio Delgado, Rogelio Ro- driguez, Luis Osorio, Thomas Lofton, and possibly an employee named Castillo or Salla.5 Marshak added that as the delivery dates of the Citibank job approached, it became necessary to have the refinishing department em- ployees work overtime on Saturday , 10 May 1986. 2. The 12 May 1986 incidents Testifying as a witness for the Respondent, Marshak related that on Monday, 12 May 1986, Delgado failed to report for work. Knowing that he had to deliver part of the refinished furniture to Citibank by 6 p.m. on Tues- day, 13 May 1986, and being concerned that Delgado's absence would cause the other refinishing department employees to fall behind on this work, Marshak asked Zapata, Dominguez, and Rodriguez to work overtime that Monday, which these employees agreed to do. However, both Dominguez and Rodriguez , testifying as witnesses for the General Counsel, denied that Marshak had asked them on 12 May 1986 to work overtime that day. Dominguez testified that on Monday , Zapata, not Marshak, had asked him if he could work overtime, not for that day but on the following day, Tuesday, 13 May 1986, because the Employer had a "large job that had to be done." Rodriguez testified that he had not been ap- proached by anyone that Monday regarding overtime work. The evidence shows that Dominguez and Rodri- guez left work on 12 May 1986 at 4 :30 p.m., their normal quitting time, Rodriguez testifying that he had done so on Zapata's instruction. 6 Moreover, concerning this, an- other of the Respondent's witnesses, Union Shop Stew- ard Elmo DeSilva, testified that on Tuesday, 13 May 1986, he was advised by Zapata that on Monday, 12 May 1986, Marshak had asked Zapata, Dominguez, and Ro- driguez to work overtime that day, but that Dominguez and Rodriguez had failed to do so although they had promised Marshak that they would . According to De- Silva, Zapata also told him that Marshak was angry about this and Zapata thought that there would be trou- 4 Neither the collective -bargaining agreement between the Employer and the Union nor the Employer's work rules and regulations require em- ployees to work overtime Overtime work is voluntary and is paid on the basis of "time and a half." ° Dominguez, Delgado, and Rodriguez, the employees who are the subject of the instant case, were all discharged on 16 May 1986. having commenced their respective employment with the Employer on 14 March 1978, 14 July 1980, and in 1973 Dominguez testified that his duties encompassed "painting, spraying, everything." and it is not unrea- sonable to assume that Delgado and Rodriguez performed the same type of work. ° It should be noted that Zapata did not appear as a witness in this pro- ceeding However, Marshak did testify that Zapata had suffered a stroke in May 1987 and was still hospitalized at the time of this hearing. FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) ble for Dominguez and Rodriguez because they had not worked overtime the previous day. 3. The 13 May 1986 incident According to the testimony of Dominguez, Delgado, and Rodriguez, on Tuesday, 13 May 1986, as they were about to leave the Employer's shop to cash their pay- checks and buy lunch for themselves and Zapata, they were met by Marshak , who using Zapata as an interpret- er, requested that they work overtime that day, which they all agreed to do.7 This conversation occurred at 12 noon and since it concluded about 12.20 p.m. they re- quested Marshak's permission to leave the premises at that time to go to the bank and the restaurant, which permission Marshak gave stating that there was "no problem " They then left the shop together. Dominguez, Delgado, and Rodriguez drove to the bank in Rodriguez' van to cash their paychecks Traffic was heavy and the bank was crowded, therefore it was about 1 p.m. when, they left the bank and went to a Chi- nese restaurant to buy lunch . On the way they had a flat tire, and Rodriguez' spare tire was not inflated . Rodri- guez took the spare to a gasoline station a few blocks away, inflated the tire, and returned to the car. After Rodriguez changed the tire, they continued on to the restaurant where they purchased lunch and to a liquor store for a bottle of whiskey for Zapata. On returning to the shop they met Marshak at the building elevators, and Rodriguez apologized for their late return.8 According to Dominguez, Marshak told them that "[I]t was fine . . that we had left late and that there was no prob- lem." Marshak and the three employees then rode the el- evator to the 10th floor where the Employer's shop is lo- cated On entering the shop, Dominguez , Delgado, and Rodriguez went to the timeclock area to punch in, it now being 1:40 p.m.9 When they discovered that their timecards were not in the usual place , they asked Zapata if he knew where their timecards were and Zapata re- sponded that they were going to have a problem because of their late return from lunch Dominguez, Delgado, and Rodriguez worked overtime that day until 6 30 p m and when they went to "punch out" they noticed that their timecards had previously been "punched in" by someone at 2:18 p m.' 0 ' Tuesday is this Employer's payday and these employees normally use their half hour lunchbreak from 12 to 12 30 p m to cash their paychecks at a bank and to purchase their lunches , which they then eat at their work stations 8 While Rodriguez testified that he had also advised Marshak that they were late in returning because of a flat tire , Dominguez and Delgado tes- tified that Rodriguez had merely apologized to Marshak for their late return without giving a reason ' Their testimony with regard to the time it took between incidents from the time they left to the time they returned during that lunch period was somewhat evasive and guarded , especially that as given by Domin- guez 10 Dominguez, Delgado , and Rodriguez testified that employees were not required to punch out when they left the shop to cash their checks on Tuesdays, payday, but were required to punch in when they returned However, Delgado testified that on occasion he punched out when he went out for lunch and punched in on his return Moreover , while Mar- shak and DeSilva maintained that the Employer required all employees to punch in and out whenever they left the shop for the lunch or to cash 53 The witnesses for the Respondent gave a somewhat different version of what occurred that Tuesday, 13 May 1986. Marshak testified that after learning that morning that Dominguez and Rodriguez had not worked over- time the previous day, he met with Zapata , Dominguez, Delgado, and Rodriguez in the refinishing department and again explained that a partial delivery of refinished furniture was due Citibank that evening at 6 p in. and that at some cost , delivery trucks were waiting at both ends to pick up and deliver the furniture. Marshak told them that he was very upset about their failure to work the extra hours the previous day as they had agreed to do and both Dominguez and Rodriguez apologized for not having done so, with Dominguez offering as an excuse that he had an emergency that Monday that pre- vented him from doing overtime work tt After the em- ployees promised to work overtime that Tuesday and for the rest of the week , Marshak admitted that he was satis- fied Marshak stated that he had specifically held this meeting at 11:45 a.m in order not to interrupt the men at their work, and not at a later time because Dominguez and Delgado "characteristically" left the shop for an early lunch on occasion. Both Marshak and DeSilva tes- tified that this meeting ended about 12 noon 12 their paychecks, DeSilva testified that on occasion he had failed to punch out on leaving the shop , but he did punch in on returning DeSilva's testi- mony also shows that as a welder employee he performed work for the Employer outside the shop and he would leave the building for periods of time aside from his lunchbreak or to cash his paycheck ' 1 Significantly, Dominguez acknowledged on cross-examination that, "It's possible," that he had told Marshak during their conversation on Tuesday, 13 May 1986, that he had failed to work overtime on Monday, 12 May 1986, because an emergency had prevented him from doing so When they asked what the emergency was about, Dominguez could not remember Furthermore, when the administrative law judge asked Do- minguez why he would give Marshak a reason for not having worked overtime on Monday, when he had previously in his testimony denied having been requested to do so, Dominguez seemed evasive and did not directly answer this question Thereafter, on redirect examination by the General Counsel , Dominguez again admitted that it was possible that he told Marshak that an emergency had prevented him from working over- time on Monday, and now remembered that the emergency involved "trouble with my feet " When Dominguez was once again questioned why he would tell Marshak about his inability to work overtime on Monday when not asked to do so, his answers were, as before , evasive and unresponsive Finally, on further redirect examination by the General Counsel , Dominguez testified, "At no time did I tell him that I didn't work overtime because I had an emergency " In connection therewith, I have considered the possibility that Dominguez misunderstood the ques- tions posed by myself, Chetrick, and Rodriguez because of translation dif- ficulties and/or the questions themselves, but the record does not support this Moreover, the time factor in Marshak's story is more plausible than that given by the three employees in that it would reasonably not take 20 minutes for Marshak to ask and receive the employees ' agreement to work overtime that day, while it might take 15 minutes for an apology, an explanation, and then being asked and agree to work overtime, this needing translation between the parties 12 DeSilva testified that on Tuesday, 13 May 1986, at about 1 145 a m , he observed Marshak talking to Zapata, Dominguez, Delgado, and Ro- driguez in the refinishing department He walked over noticing that Mar- shak was angry and speaking in a loud voice , with Zapata translating his remarks into Spanish for the employees Marshak told them that they had promised to work overtime the previous day, Monday, and had failed to do so According to DeSilva, Dominguez and Rodriguez apologized to Marshak for this, Delgado having been absent from work that Monday The employees agreed to work overtime that Tuesday and Marshak seemed to have accepted their apology and their promises to work the Continued 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Marshak continued that sometime thereafter he left the shop and on his return to the building met Dominguez, Delgado, and Rodriguez at the elevators, each of them carrying a "shopping bag." The time was approximately 2:15 p.m. Rodriguez explained to Marshak that they were late returning from lunch because they had had a flat tire on the way . They all then entered the elevator and went up to the 10th floor. On the shop floor they met Zapata and DeSilva, both of whom were "very agi- tated" and when he observed timecards in Zapata's hand he instructed Zapata to "punch in" the timecards for these employees, which Zapata did. The time was then 2:18 p.m. '3 Marshak also told DeSilva to find out what actually had happened and then left the area . Marshak stated that because of their failure to work overtime on Monday, 12 May 1986, their late return from lunch on Tuesday, 13 May 1986 (approximately 2-1/2 hours late), and their failure to call in when they had the flat tire to advise the Employer that they would be late in returning from lunch , he decided either on that day, Tuesday, or the next day, Wednesday, 14 May 1986, that he was going to fire these employees. 24 Marshak added that he told DeSilva of his plans to discharge Dominguez, Del- gado, and Rodriguez and advised DeSilva to apprise Torres of his decision. DeSilva testified that after he returned from lunch that Tuesday at 12:25 p.m., Zapata came to the welding area where he worked at "a little after 2:00" that afternoon and asked him if he knew where Dominguez , Delgado, and Rodriguez were. Zapata had three timecards in his hand that he identified as belonging to these employees, and when DeSilva could not tell Zapata their where- abouts, Zapata walked away towards the timeclock area. Soon thereafter Marshak , Dominguez, Delgado, and Ro- driguez stepped out of the elevator and Marshak told DeSilva that he was angry at these employees because they had returned from their lunchbreak so late, and he requested that DeSilva and Zapata find out the reason for their late return.15 Zapata now "punched in" the timecards of Dominguez , Delgado, and Rodriguez, the time being after 2:15 p.m. DeSilva continued that he and Zapata questioned the three employees regarding their late return and Rodri- guez explained that they had a flat tire along the way which caused their lateness. Zapata told the employees that he did not believe their story and when DeSilva checked Rodriguez' hands for grease or dirt smudges, since Rodriguez indicated that he had changed the tire, Rodriguez' hands were clean. Despite the professed extra hours needed to complete the job DeSilva added that when he left the shop at noon for lunch he met Dominguez , Delgado, and Rodriguez and they all went down in the elevator together and left the building, then parting company "The timecards in evidence of Dominguez. Delgado , and Rodriguez, show a punch in time for that day of 2.18 p m 14 Marshak testified We didn't get through with the job . I had drivers who were there on the job till 10 o'clock at night The sum and substance was the job cost us a couple thousand bucks extra . Citibank was not happy with the situation. 'S Rodriguez testified that when he tried to explain to Marshak why they had been late in returning from their lunchbreak , he spoke to Mar- shak in English and he did not know if Marshak understood what he was saying Rodriguez speaks some English but his main language is Spanish skepticism by DeSilva and Zapata, Dominguez, Delgado, and Rodriguez stuck to their story of the flat tire. De- Silva related that he repeated their account of what had occurred to Marshak who angrily stated, "[I]t's bullshit, that didn't happen." Marshak also said that they were constantly doing this, were conspiring against the Em- ployer, and that he had had just about enough, "They're out. I'm firing them." DeSilva added that he asked Mar- shak to reconsider his decision to fire them but that Mar- shak was adamant about this. DeSilva testified that he called Torres at the union office the next day, Wednesday, 14 May 1986, to report this incident but Torres was not there. On Thursday, 15 May 1986, Torres returned his call and, after DeSilva had explained what happened on the previous Tuesday, Torres arranged to meet with DeSilva at the shop on Friday morning, 16 May 1986 .16 The evidence shows that Dominguez, Delgado, and Rodriguez worked over- time on Wednesday of that week ,' z and worked their regular hours 8 a.m. to 4:30 p .m. on Thursday, since Zapata had informed them that there was no overtime work that day. 4. What occurred on 16 May 1986 Testifying as a witness for the Respondent , Torres re- lated that he appeared at the Employer's shop at 10:30 a.m. on Friday, 16 May 1986, and asked DeSilva for a complete account of what had occurred . DeSilva ex- plained that Dominguez, Delgado, and Rodriguez had gone out to lunch on Tuesday, 13 May 1986, at 12 noon and had not returned to the shop until "2:18," and that Marshak was "really mad" and very upset about this and wanted to discharge them. DeSilva also told Torres that Marshak had not fired them on the spot because he wanted to complete the Citibank job before he did so. Torres and DeSilva then went to Marshak's office to dis- cuss the matter. Marshak reminded Torres that he had previously complained to the Union about the latenesses and absences of these three employees and that the Union had done nothing about it. Marshak emphasized that he was through accepting such conduct on the part of these employees and was going to discharge them. Marshak also told Torres that he had asked these em- ployees to work overtime on 12 May 1986 but, after agreeing to do so, they left the shop at their regular quit- ting time, 4:30 p.m.18 Torres requested that Marshak sus- pend these employees for 3 days instead of firing them, but Marshak refused. Torres then advised Marshak that the Union was prepared to take the matter of these dis- charges to arbitration.' 9 According to Torres, he and DeSilva left Marshak's office and spoke to Dominguez, Delgado, and Rodriguez who repeated their account of 1 6 Torres testified similarly about this conversation. " Dominguez testified that he was late for work on Wednesday, 14 May 1986, and had unsuccessfully attempted to notify the Employer that he would be in late that morning 's This particular testimony was elicited only after Torres ' recollection had been refreshed by leading questions by the Respondent 's counsel 19 Marshak testified similarly about the conversation but added that he had given Torres the Union 's copy of the discharge letter during this meeting FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) what occurred on 13 May 1986.20 Torres advised them that the Union was going to contest their discharge at an arbitration hearing and the employees then returned to work. DeSilva's account of their conversation with Marshak was similar but more detailed. He testified that Marshak was angry, spoke in a loud voice, banged on the table, and at times became livid with rage. When Torres told Marshak that the Union would oppose the discharges, Marshak responded that he did not care and was pre- pared "to fight" any union action in this regard. More- over, when Torres and DeSilva advised the three em- ployees that the Employer was going to fire them, they protested the discharge as unfair because their lateness was due to the flat tire. Dominguez, Delgado, and Rodriguez all testified that on Friday, 16 May 1986, at the completion of their workday, 4:30 p in., DeSilva gave them letters of termi- nation from the Employer, and both he and Zapata ad- vised the three employees to take the letters to Torres at the Union.21 They denied that Torres had spoken to them earlier that day. 5. What happened thereafter On Monday, 19 May 1986, Dominguez, Delagado, and Rodriguez went to the Union's office to speak to Torres about their being fired They testified that they told Torres the details of what had occurred leading up to their discharge. Dominguez and Rodriguez denied having been asked to work overtime on Monday, 12 May 1986, as stated in the letter of discharge, Delgado advised that he was absent from work that Monday, and all three employees maintained that their discharges were unfair because a flat tire had been the cause of their late return from lunch on Tuesday, 13 May 1986. They stated that after Torres had listened to their accounts of what had happened, he told them that there was nothing to worry about because the Union had faced similar prob- lems before, and after taking "the case to Court ... had won and the Employer had had to rehire the employee." 20 Torres first testified that in their account of what happened the em- ployees had said that they returned from lunch at 2 p in Subsequently he testified that, "They didn't tell me what time " 21 Marshak testified that he had prepared the discharge letters on Thursday, 15 May 1986 The letter of discharge is dated 15 May 1986, is addressed to the Union, involves "Juan Dominguez, Julio Delgado and Roger Rodriguez," and reads On May 12th, these three were asked to work overtime on a job and all agreed Yet at 4 30 each punched out On May 13th, Tuesday at 1145, 1 had a meeting with these three and expressed my concern that because they didn't work, a very important job would be put in jeopardy They all expressed concern and reassured me they would work overtime until the job was complete The same afternoon these three left the building for lunch with out punching out and did not return to work until 2 18 (one hour and 18 minutes late without a call) Each man had a shopping bag in his hand as if he had been shopping On May 14th, the next day, both Mr Delgado and Mr Domin- guez were late to work All three have a history of lateness and warnings As a result of their indifferent attitude to their jobs, to myself and the company, we have no alternative but to release these people from our employ Our inability to make any impression, cou- pled with their constant lateness, and theft of time leave me no choice In addition to the violation in the contract, the example they set for the other employees in the company is very poor 55 Torres said that the Union's attorney would handle the matter and they would have to be patient because the ar- bitration process would take "more or less one, two months . . . two, four months, I don't know how many." The three employees related that Torres had also told them that they had a "75 to 80 percent chance of win- ning," and then instructed them to apply for unemploy- ment insurance benefits in the meantime. Dominquez, Delgado, and Rodriguez gave Torres their home ad- dresses and telephone numbers and told him that if he could not contact them by telephone then to write them letters .2 2 Torres testified that the three employees appeared at the Union's offices that day about 4:30 p.m. They showed Torres the dismissal letters and Torres told them that the Union had not as yet received its copy of the letter. After they gave Torres an account of what had happened, Torres advised them that the Union would take their case to arbitration, which could take anywhere from a matter of days to months. At first Torres denied that he had made any comment to them regarding their chances of winning the arbitration case. However, when he was confronted with a statement he had made in an affidavit given to a Board agent during the investigative stage of this proceeding that, "I recall telling them that we have a good chance to win the case," he then ac- knowledged that, "It's possible I said it yes." Harold Chetrick, the Union's attorney for the past 20 years, and called as a witness for the Respondent, testi- fied that a few days after 16 May 1986 he received a telephone call from Torres regarding the discharges by the Employer of Dominguez, Delgado, and Rodriguez. Torres gave Chetrick a detailed account of the events leading up to the discharge of these employees and Che- trick asked Torres to meet with him to review the col- lective-bargaining agreement and then decide how to proceed. Chetrick recounted that he then called DeSilva who related a similar version of what had happened as given previously by Torres. A few days later Torres and Chetrick met at Chetrick's office and reviewed the col- lective-bargaining agreement, which provides for the ar- bitration of disputes of grievances that cannot be satisfac- torily adjusted otherwise. Torres had previously men- tioned to Chetrick that these employees had lateness and absentee problems, and when Torres raised this issue in the context of the arbitration, Chetrick opinioned that, because the Employer "never brought them to arbitra- tion" on these prior matters, "all of those disputes in- volving lateness have been satisfactorily adjusted" within the meaning of the grievance provisions of the bargain- ing contract. Chetrick told Torres that "[A]s I see it the only issue involved here is whether or not they should be discharged because they came back late from lunch on that day of May 13th, understanding what happened on May 12th . . . [I]s the drastic remedy of discharge warranted . . . . As far as I was concerned this was the basis of the discharge and I felt that that was unfair, on the basis of [what had occurred]." 22 Delgado gave Torres the telephone number of his sister and that of a friend because he had no telephone where he lived 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chetrick testified that because the basis of their dis- charge was their late return from lunch on 13 May 1986, he "had no intention of permitting anything to come in involving latenesses, because that is not.the issue at this particular arbitration ." Chetrick stated that his legal opinion was that the Employer had fired the three em- ployees "because of what happened on May 12th and May 13th," and that the Employer's mention in the let- ters of discharge about their "indifferent attitude to the job, and . . . their constant latenesses" was merely "win- dowdressing" to "bolster up the main theme by just showing their general conduct otherwise." Chetrick re- lated that because Marshak seemed to accept the apolo- gies of Dominguez and Rodriguez for not having worked overtime on 12 May 1985 and "was satisfied" by their offers to work overtime the rest of the week, and because their late return from lunch on 13 May 1986 was occasioned by a flat tire suffered on their way to pur- chase their lunch, the discipline of discharge was unfair. Chetrick added that this was "My legal opinion, my de- cision, and that was my approach to the case."23 Chetrick commenced the arbitration proceeding by letter dated 2 June 1986 sent to the New York State Me- diation Board as provided for under terms of the collec- tive-bargaining agreement between the Employer and the Union. By letter dated 18 July 1986 the Mediation Board notified the Union that it had selected Thomas Knowlton as the arbitrator in the matter, and that Knowlton would contact the parties involved to set a hearing date. Chetrick testified that because the arbitration involved "a very simple issue" he saw no reason to interview the grievants beforehand and therefore did not do so. Che- trick stated: Should they be fired because they went out at twelve and came back at two or 2 : 18, that was the issue, and I felt that no arbitrator should fire a person based on that afternoon , and I felt that the latenesses were not a subject of this arbitration and I was not going to allow them in because they had all been adjusted beforehand . They were not the subject of this, and obviously I didn't want to get that in because that would be more fuel. The arbi- trator would say hey, look at the records that these guys had. I knew what Marshak was going to try to do, and now look what he did . This was the straw that broke the camels back. This was deception, this was betrayal, this was backstabbing, and I knew a phrase that Marshak always used in every arbitra- tion, conspiracy. Conspiracy to do him harm. So I did not think it was necessary, really, there was nothing that they could add that would be of help to me, and the fact that there were other people that had been late and they were still working, so what. Those other people, even with their latenesses had not committed this, according to Marshak, das- tardly deed of betrayal and what happened on May as Torres' account of this meeting was very brief and rudimentary con- cerning detail but did confirm that such a meeting took place and the topic of conversation 12th and May 13th, and I didn't want to get that in. I felt the less in the better. Dominguez, Delgado, and Rodriguez spoke to Torres again on 25 May 1986 at the union offices, inquiring con- cerning when the arbitration hearing would take place. Rodriguez testified that Torres asked them to be patient and told them that "it could take a long time." Domin- guez testified that Torres had said it would take "ap- proximately a month or two to go to trial." These em- ployees again gave Torres their current home addresses and telephone numbers. During the month of June 1986, Dominguez spoke to Torres on the telephone "about 5 times" and Torres' response was always that this matter took time and to be patient . Delgado related that he had called Torres four times during that month but Torres was unavailable to speak to him each time , and Torres never returned his calls. Rodriguez unsuccessfully at- tempted to contact Torres twice in June 1986. Torres stated that he spoke to Dominguez over the telephone two or three times prior to the arbitration hearing and that it was his procedure to return all calls made to him while he was away from his desk, as soon as possible. According to their testimony , Dominguez and Rodri- guez met with Torres in mid-July 1986 to inquire about the status of their case. Torres told them that "this took time and to wait." Torres again told them that they had a 75-percent chance of winning the arbitration and that the Union had a good lawyer . Torres denied telling them anything about their chances of winning the case. Rodri- guez recounted that he also went alone to the union of- fices in July to speak to Torres and that Torres reiterated that the employees should be patient, and that the Union's attorney was working on the case . Torres also advised Rodriguez that Marshak "needed Julio Delgado and myself to go back to work" and Rodriguez said that he would be happy to do so. Torres told him he would call him if he had further news about this . Delgado stated that he telephoned Torres on four occasions in July 1986, but was unable to speak to him. Moreover, Dominguez testified that he attempted to contact Torres by telephone at least five times in August 1986 but was unsuccessful in doing so. Delgado testified that he also had tried to speak to Torres on the phone in August 1986 but was unable to reach him. Finally Do- minguez and Delgado went to the Union 's offices in August 1986 and in a conversation with Torres were told that the arbitration hearing might take place "in the next few days." Delgado testified that Torres told them that they had to be patient, this takes time but not to worry because they were going to win the case , that they had a "75-80 percent chance of winning ." Rodriguez testified that he was out of the country for the month of August 1986 returning to the United States on 31 August 1986. The Union sent letters to Dominguez, Delgado, and Rodriguez dated 3 September 1986 notifying them that the arbitration hearing was scheduled for Wednesday, 10 September 1986 at 400 Broome Street, New York City, New York, on the fourth floor. Dominguez acknowl- edged that he received this letter on 8 September 1986, Delgado's letter was returned to the Union by the U.S. Post Office as undeliverable because Delgado was "Not FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) Known" , at the address the letter was sent to,24 and Rodriguez testified that he did not receive the letter until after the arbitration took place.25 Dominguez testified that on receipt of the letter he called Rodriguez "so that he could call Julio Delgado " Rodriguez told him that he had not received a copy of the letter. Dominguez stated that, on 9 September 1986, he telephoned Torres and asked him to explain the contents of the letter because he could not read English. After Torres advised him of the date and place of the arbitration hearing, Dominguez asked Torres to contact Delgado and Rodriguez because they had not received copies of this letter. Torres replied that he would do so. Torres' account of this telephone conversation was that Dominguez told him that he had received the letter indicating the hearing's time, date, and place and then Torres advised him that the Union had sent similar letters to Delgado and Rodriguez. More- over, Chetrick testified that prior to the date of the arbi- tration hearing, he had called Torres and inquired whether the three employees had been notified regarding the hearing date and Torres had answered that they were. 6. The arbitration hearing Chetrick testified that on 10 September 1986 he ar- rived at the New York State Board of Mediation offices at 400 Broome Street, New York City, New York, at 9:35 a.m. and found Torres, DeSilva, and Dominguez al- ready there. They waited in the reception area a while for the arrival of Delgado and Rodriguez. Thereafter Marshak and the Employer's attorney arrived, "a fellow named Mr. Krupnick." Chetrick related that he now took Torres, DeSilva, and Dominguez into an anteroom library where he questioned Dominguez about the events of the week of 12 May 1986, leading up to his discharge, using Torres as interpreter. According to Chetrick, Do- minguez acknowledged that he had been asked to work overtime on Monday, 12 May 1986, which he agreed to do, but an emergency with his feet prevented him from doing so. Dominguez also told him that Delgado had been absent from work that Monday Dominguez related to Chetrick that he and Rodriguez had apologized to Marshak the next day for not working overtime on Monday and after they told Marshak that they would positively work overtime for the remainder of that week, Marshak appeared to be satisfied and said that "every- thing was fine." Dominguez recounted what had hap- pened when the three employees went out to lunch, had a flat tire, and returned from their lunchbreak "at two, a little after " Dominguez told Chetrick that while he did have a lateness problem, the Employer had never taken him to aribitration for lateness. Additionally, Dominguez told Chetrick that there was no requirement by the Em- ployer that employees "punch out" when they left the 24 While the letter to Delgado was properly addressed, the Union had failed to include his apartment number Torres testified that after Delga- do's letter was returned to the Union as undelivered, he made several at- tempts to reach Delgado at his sister's telephone number, but nobody an- swered the phone 25 Rodriguez testified that he had advised the Union that his address was 3032 Atlantic Avenue, Brooklyn, New York The Union sent his letter to Rodriguez' old address, 87-27 114th Street, Jamaica, New York 57 shop for lunch, about only to "punch in" when they re- turned. Chetrick spent "thirty, thirty-five minutes" ques- tioning Dominguez. Chetrick stated that Dominguez' account of what had occurred during the week of 12 May 1986 was consistent with what Torres and DeSilva related had happened that week and, therefore, "As far as I was concerned my strategy remained intact and I was going to approach the arbitration in exactly the manner that I had determined ahead of time." Chetrick testified that after returning to the hearing room, they found that neither the arbitrator nor Delgado nor Rodriguez had appeared and Chetrick called the ar- bitrator's office and was told that Knowlton was on his way to the arbitration hearing. Chetrick also called the Union's office and was apprised that Rodriguez had mis- takingly gone there instead of directly to the hearing. Rodriguez was instructed to come immediately to the ar- bitration hearing, which he did.26 Knowlton now ar- rived and Chetrick explained that only one of the griev- ants was present and another was definitely on his way there. When Rodriguez finally arrived, Chetrick request- ed time to confer with him, which Knowlton granted, and he, Rodriguez, Torres, DeSilva, and Dominguez went to the anteroom library where Chetrick asked Ro- driguez "the same general questions" he had previously posed to Dominguez. With Torres acting as interpreter, Rodriguez gave answers to these questions, which were similar to those as given by Dominguez previously. Chetrick then asked Rodriguez if he knew where Del- gado was and Rodriguez replied that he did not know. Chetrick maintained that it was now that he learned for the first time that the Union's letter to Delgado regard- ing the date, time, and place of the arbitration hearing had been returned to the Union as undelivered, and that the Union had been unable thereafter to get in touch with Delgado. Chetrick testified that he decided to pro- ceed with the arbitration despite Delgado's absence, and when Knowlton inquired about this, he advised Knowl- ton that the Union would make every effort to locate Delgado and then. "let [Knowlton] know where he stands "27 Chetrick's account of what then occurred at the.arbi- tration hearing was, in substance, that the hearing was held in an informal manner. The parties agreed that the issue involved in the matter was whether "the facts justi- fy the discharge of these two people." Marshak read an opening statement over Chetrick's vehement but unsuc- cessful objection, which stated that these employees had promised to, then failed to, work overtime on Monday, 12 May 1986, and then had returned excessively late 28 Dominguez testified that he had called Rodriguez that morning, 10 September 1986, and told him that the arbitration hearing was scheduled for that day, also giving him the address at which the hearing was to be held 27 Knowlton testified that he made inquiry about the absence of Dela- gado to both the Union and the Employer, "since it is highly unusual that a grievant is not present," and was informed by the Union that Delgado "had been properly notified of the date and place of hearing " Because Delgado never appeared at the arbitration hearing, Knowlton requested that the Union and Chetrick let him know the reason for Delgado's ab- sence 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from lunch on Tuesday, 13 May 1986, this being done notwithstanding the fact that the Employer had an im- portant refinishing job to complete. Marshak made refer- ence to the lateness records of these employees and his forebearance in not taking them to arbitration over this, and in payment for his goodness, they had betrayed him and conspired among themselves to cause him problems. Chetrick objected to the introduction of any evidence re- lating to the latenesses and absences of these employees and although such evidence was admitted by the arbitra- tor, Chetrick brought out that all such prior latenesses had been "always adjusted satisfactorily" between the Employer, the Union, and the employees, without resort to arbitration and without prior layoff or discharge. Mar- shak admitted on cross-examination that he had dis- charged these employees because of the "scenario of May 12th and May 13th" and that the Employer had in- troduced records of their prior latenesses "to show the background of these people." Chetrick indicated that there were some contentious and unfriendly exchanges between him and the Employer's attorney, Krupnick. He added that none of the witnesses were sworn and any "testimony" given was not under oath. Chetrick continued that he decided not to call either Dominguez or Rodriguez as witnesses because he did not want to open a "Pandora's box" of questions by the Em- ployer's attorney as to their latenesses, "if I started to talk about latenesses, which I did not feel, I'd be waiving the very defense that I thought was critical to the case based on the collective bargaining agreement." Chetrick therefore closed his case with a summation that these employees had been fired because they failed to work overtime on 12 May and returned from lunch late on 13 May and maintained that the arbitrator had to decide on "[W]hether the drastic remedy of discharge is warranted based on this." Chetrick added that the arbitration hear- ing ended on an unfriendly basis between the Union and the Employer. Knowlton again asked about Delgado and Chetrick told him that the Union would attempt to con- tact Delgado and Chetrick would then notify Knowlton whether Delgado was to be included in the arbitration award. Chetrick then left the building, leaving Torres, Dominguez, and Rodriguez in conversation together. The testimony of Torres, DeSilva, and Marshak was, in substance, similar in nature to that given by Chetrick. Both Torres and DeSilva testified that Chetrick had questioned Dominguez and Rodriguez as to the events that preceded their discharges and Marshak testified that he had been in an adjacent room with his attorney and overheard some of what was said during Chetrick's con- versation with Dominguez. Torres stated that Domin- guez had told Chetrick that he had been asked to work overtime on Monday, 12 May 1986, but could not do so. However, Torres recounted that Rodriguez had denied being asked to work overtime that Monday when Che- trick questioned him about this. Torres stated that the ar- bitrator was not told that Delgado had been absent from work on Monday, 12 May 1986. DeSilva related that most of the talking at the hearing was done by "Mar- shak's lawyer" and Chetrick. DeSilva testified that during the hearing Torres "once in awhile . . . would lean over to Dominguez and say something to him," and that "a couple of times [Torres] reached over and touched [Rodriguez] and he said something to him ... . He was speaking Spanish." Torres added that near the end of the hearing the arbitrator asked if Delgado should be included in the award and Chetrick responded yes. Torres also asked Dominguez and Rodriguez at the con- clusion of the hearing, to tell Delgado if they saw him, to contact Torres at the Union. Knowlton's account of what happened at the arbitra- tion was similar to Chetrick's except much less detailed and with less recall. Knowlton testified that he raised the question of the need for an interpreter because the griev- ants "were obviously Spanish speaking." Knowlton was told by Chetrick that there was a person at the hearing who was bilingual and who could translate if needed. The grievants themselves did not request an interpreter. Statements were made by the Company, its attorney, the Union, and Chetrick, but Knowlton could not remember if the grievants testified or if Marshak answered ques- tions. The parties respective positions on the issue in- volved in the arbitration was conveyed to Knowlton by their attorneys. Knowlton related that, as told to him at the hearing, the grievants had agreed to work overtime with regard to an important refinishing job. They had failed to do so and had thereby jeopardized the job 's delivery date. The Union agreed that this is what had occurred . The follow- ing day these employees took an extended lunch period, which additionally angered the Employer . The grievants had gone to cash their paychecks and had a flat tire along the way, resulting in their late return from lunch. These details were again not challenged by the Union. Knowlton stated that while he admitted the grievants at- tendance records into evidence, he paid little attention to them in deciding the matter. After Knowlton was asked to and did read the discharge letter in evidence (G.C. Exh. 4) he was asked: Q. Sir, after you read the letter, if you had heard testimony of the three grievants to the contrary of what's in this letter might your decision in the award have been different? A. If I believed their testimony possibly. Moreover, Knowlton characterized the conduct of the hearing as follows: It was informal. It was partly because perhaps I was late. It did not follow some of the usual pattern in which the employer states its case and the union an- swers. Because, A, there was not to many people there. B, I had the impression that neither attorney had had too much experience with arbitration.28 The account of what transpired at the aribitration hearing as given by Dominguez and Rodriguez differed substantially from that given by the Respondent's wit- 28 Knowlton is 78 years old and appeared to be frail in constitution He acknowledged that the hearing had been conducted by him in a "very informal manner." From Knowlton's testimony I received the impression that he felt deeply the realization that he had perhaps not exercised suffi- cient control of this arbitration hearing as was his usual practice. FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) nesses. Dominguez and Rodriguez testified that on their respective arrivals at the arbitration hearing, Chetrick had not questioned them about the events leading up to their discharge on 16 May 1986.29 Both Dominguez and Torres stated that they asked Torres to translate what was being said at the hearing30 and had requested the opportunity to testify regarding what had happened, but Torres failed to comply with these requests, although he initially told Dominguez, "Let's see. If it's possible, we'll see "31 Moreover, the tenor of their testimony appeared to imply some cooperation or collusion between the Em- ployer and the Union in this matter, to the detriment of these employees.32 After the hearing they spoke to Torres and asked him why they had not been called as witnesses to tell their story and why Torres had not translated what went on during the hearing and Torres responded that "[E]verything was finished and that ev- erything . . . had been said . . . why did we have to tes- tify?" Dominguez and Rodriguez also inquired regarding when the arbitrator's decision would be forthcoming and Torres said it would take "ten days to, two months." 6. What happened thereafter ' By letter dated 2 October 1986, Knowlton asked Che- trick to `let me know what has been decided with re- spect to [Delgado's] inclusion in the case "33 Chetrick testified that he then contacted the Union by letter in- quiring about Delgado, and the Union's response by letter was to the effect that they were trying to locate him but were unsuccessful to date. Chetrick stated that he then telephoned Knowlton but Knowlton was not there and Chetrick told the arbitrator's secretary, Jose- phine, that the Union was still attempting to contact Del- gado but had been unable to do So.34 "Several days" =9 However, on cross-examination, after denying consistently that Che- trick had spoken to him at all at the arbitration hearing, Dominguez ad- mitted that "Through Torres a few words were spoken," mainly he told Chetrick and Torres that he wanted to testify at the hearing Dominguez then testified that he had said nothing to Chetrick because he supposed that Torres had told Chetrick the full story of their discharge '0 However, in an affidavit given to a Board agent during the investi- gative stage of this proceeding, Rodriguez stated that , "The lawyers spoke in English and Torres didn't translate for us I didn't ask him to translate for me" Rodriguez explained this inconsistency as an incorrect translation of what he told the Board agent 4' Dominguez testified that he, Delgado, and Rodriguez had made the same request to Torres when they met with him on 19 May 1986 at the Union's office OZ Dominguez testified that during the arbitration Marshak, Krupnick, and Chetrick left the room and then returned subsequently and spoke to the arbitrator He also testified that after the hearing ended, Chetrick, Torres, and Krupmck had a conversation off to the side and when they returned they were laughing DeSilva testified that near the end of the arbitration hearing, the arbitrator and the two lawyers left the room for a discussion among themselves Torres testified that at one point during the hearing Chetrick and the arbitrator stepped out of the room ss The letter specifies no time limit within which Chetnck was to notify the arbitrator about Delgado's status in the matter Knowlton ac- knowledged that it may have been an error on his part not to set forth such a date in his letter and before issuing his decision that included Del- gado 14 Knowlton testified that he had received no reply from Chetrick re- garding his letter of 2 October 1986 and although Chetrick had told him subsequently, after he had issued his decision, that Chetrick had spoken to his secretary on the telephone soon after receipt of the letter and told her the Union was continuing its search for Delgado, Knowlton's secre- tary did not recall such a telephone call from Chetrick 59 after Knowlton had written to Chetrick regarding Del- gado, Knowlton issued his "Opinion and Award" in the arbitration case. Chetrick sent a copy of the decision to the Union and the Union forwarded copies to Domin- guez, Delgado, and Rodriguez. While Knowlton testified that he did not pay "too much attention" to the grievants' attendance records "in his final analysis," the "Opinion and Award" is replete with references to this The decision reads- All three of the- grievants were discharged on or about May 15th for various problems arising from their attendance records coupled with their depar- ture from work without notice after they had agreed to work overtime to finish a particular job . .. . The time-record of each of the grievants indi- cates frequent absences and/or latenesses in report- ing. There had been discussion between the Em- ployer, Mr. Marshak, and each of the three men re- garding their attendance. The decision then relates what occurred on 12 and 13 May 1986 (as discussed earlier) and concludes Mr. Marshak had informed the Union of his difficul- ties with all three of the grievants with respect to their attendance on a number of occasions but these "warning letters" quite obviously did not- have the desired effect In my opinion, there was sufficient cause for the discharge of each of the men, Moreover, there was much testimony and numerous exhibits introduced into evidence in the instant case re- garding the attendance records of Dominguez, Delgado, and Rodriguez and of other employees. In substance this evidence shows that these employees did have lateness and absenteeism problems but so did some of the other employees, at least two of whom worked in the Employ- er's refinishing department, Osorto and Lofton. I also note that the testimony of Dominguez, Delgado, and Ro- driguez regarding their attendance was at times evasive, guarded, and inconsistent with other documentary evi- dence in the record, such as warning notices and their timecards. B. Analysis and Conclusions 1. Credibility The resolution of some of the issues in this case re- quires a determination of the credibility of the respective witnesses. After carefully considering the record evi- dence, I have based my findings on my observation of the demeanor of the witnesses, the weight of the respec- tive evidence, established and admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the record as a whole.35 I tend to credit the account of what occurred here, as given by the Re- spondent's witnesses, and the General Counsel's witness, Arbitrator Knowlton, although I noted some inconsisten- 'S Northway Nursing Home, 243 NLRB 544 (1979), Gold Standard En- terprises, 234 NLRB 618 (1978), V & W Castings, 231 NLRB 912 (1977), Northridge Knitting Mills, 223 NLRB.230 (1976) 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cies in their testimony as given, primarily in that of Luis Torres. However, on the whole their testimony was given in a forthright manner, was generally corrobora- tive and consistent with each other, and most important- ly, apparently consistent with other uncontroverted evi- dence in the record and therefore most believable. Al- though I do not discredit all the testimony of the Gener- al Counsel's witnesses, yet I found that their testimony, especially that of Juan Dominguez, was at times guard- ed, defensive, and evasive, especially on cross-examina- tion, and contained inconsistencies with regard to other uncontradicted evidence in the record.36 2. The Respondent's affirmative defenses a. Failure to state a cause of action regarding Delgado and Rodriguez The Respondent alleges in its amended answer that the General Counsel has failed to state a cause of action on behalf of Julio Delgado and Rogelio Rodriguez , "inas- much as they have not been named as complaining par- ties in the complaint and have not charged the [Union] with committing any wrongful acts with respect to the Union's representation of their rights and interests in the subject arbitration which is that basis of the instant com- plaint." However, paragraphs 10 through 15 of the com- plaint clearly and specifically set forth "a cause of action" on behalf of Dominguez, Delgado, and Rodriguez and allege wrongful acts and conduct by the Union against all three in violation of Section 8(b)(1)(A) of the Act.97 In view of the above I assume that the Respondent means that the General Counsel, in not naming Delgado and Rodriguez in the title caption of the complaint there- by, failed to state a cause of action on their behalf. As the United States Court of Appeals for the Seventh Cir- 36 A significant inconsistency was Dominguez ' professed dental that he had not been asked by Marshak to work overtime on Monday, 12 May 1986. On direct examination he testified that he had never been asked by Marshak to work overtime for that Monday , but instead was requested by Zapata to work overtime for the next day, Tuesday Then he testified on cross-examination that it was possible that on Tuesday he had apolo- gized to Marshak for not having worked overtime the previous day, Monday, and gave as his reason for his failure to do so, that he had an "emergency." Then on redirect examination , after some effort on the part of counsel for the General Counsel, he stated that no one had ever asked him to work overtime for Monday The question remains why Domin- guez would admit having apologized to Marshak for not working over- time on 12 Monday 1986 if he had not been asked to do so, unless he was in actuality requested to work overtime that day. Moreover, the testimony of Dominguez, Delgado, and Rodriguez with regard to their incidence of lateness and absences was less than candid, to say the least, and even less accurate regarding their receipt of oral and written warning notices Their timecards and other documentary evi- dence in the record did not substantiate or corroborate their testimony thereon. Additionally, their account of the time it took at each step of the way concerning the incident that occurred during their lunchtime on Tuesday, 13 May 1986, was less than believable and was fraught with evasiveness, their testimony was guarded and, in the case of Dominguez, was given in a somewhat defensive and at times hostile manner 37 Moreover, the charge filed herein alleges a failure and refusal by the Union "to represent Juan Dominguez, Rogelto Rodriguez and Julio Del- gado, regarding their discharge by Office Furniture Service, Inc , for rea- sons that are arbitrary, invidious and capricious." cuit stated in American Newspaper Publishers Assn. v. NLRB, 193 F.2d 782, 800 (7th Cir. 1951): All that is requisite in a valid complaint before the Board is that there be a plain statement of the things claimed to constitute an unfair labor practice that the Respondent may be put upon his defense.38 Moreover, it is not uncommon and has been accepted by the Board and the courts, that the title caption of a Board complaint list only the name of the party filing the charge, although allegations in the charge and thereafter the complaint set forth the names of other aggrieved par- ties therein against whom unlawful acts and conduct has allegedly been perpetrated, and for which remedial action is sought. From all the foregoing, I find and conclude that the Respondent's "First Affirmative Defense" is without merit and is rejected. b. Lack of jurisdiction The Respondent asserts in its brief in elaboration of this, its second affirmative defense in its amended answer, that the "Board must meet volume standards which [the] Board has imposed upon itself as a minimum for exercising jurisdiction" and therefore, because the General Counsel has alleged in the complaint that during the past year, "the Employer derived gross revenues from retail sales in excess of [$500,000]"99 and "pur- chased and caused to be transported and delivered to its Long Island City place of business, products, goods and materials valued in excess of [$50,000J,"40 the General Counsel must meet both these standards in order that the Board exercise its jurisdiction in this matter. The Re- spondent is mistaken in this assertion. The Board has determined that where a single-inte- grated enterprise is engaged in both retail and nonretail operations, it will assert jurisdiction where the employ- er's operations meet either the retail or nonretail stand- ard provided that either aspect is not "de minimis."4 t According to the record evidence the Employer derived gross revenues during the past year of $4 million of which $460,000 was derived from retail sales . "De mini- mis"? No way! Since the Employer does a gross volume of business exceeding $500,000, I find that it meets the Board's retail jurisdictional standard, and this would be sufficient for the Board to assert jurisdiction herein.42 Moreover, the Employer purchased goods and materi- als from California and Canada in excess of $50,000 during the past year, which were delivered to its Long Island City, New York place of business. Thus the Em- ployer meets the Board's $50,000 direct inflow stand- 98 Also see Curtiss-Wright Corp. Y. NLRB, 347 F.2d 61 (3d Cir 1965), in which the court stated, "The propriety of a pleading is today judged by its effectiveness as a mechanism for giving an adverse party notice of the claim upon which relief is sought " 39 Carolina Supplies & Cement Co , 122 NLRB 88 (1958) 40 Siemons Mailing Service, 122 NLRB 81 (1958) 4t Indiana Bottled Gas Co, 128 NLRB 1441 (1960), Man Products, 128 NLRB 546 (1960). 42 De Marco Concrete Block Co., 221 NLRB 341 (1975 ) Also see Maaco Auto Painting & Body Work , 249 NLRB 1296 (1980). FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) ard43 and it would assert jurisdiction on this basis. It should be noted that the Board would assert jurisdiction of this Employer under either jurisdictional standard not- withstanding the General Counsel' s allegations in the complaint, and I therefore find that the Respondent's "Second Affirmative Defense" is without merit. c. Statute of limitations-the 10(b) period Section 10(b) of the Act provides- That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made Filing with the Regional Director and service on the Re- spondent both must occur within the 6-month period in order for the charge to be timely Section 10(b) is a stat- ute of limitations and is not jurisdictional in nature. It is an affirmative defense that must be pleaded and, if not timely raised, waived.44 The Respondent has timely raised such a defense. The Respondent contends in its brief that- Inasmuch as a copy of the charge in the instant pro- ceeding, allegedly filed by Dominguez on Novem- ber 19, 1986 was not served upon the Respondent by certified mail on November 20, 1986, the action on behalf of Juan Dominguez is now time barred by the six-month statute of limitations. The Respondent also contends , "[T]hat it has, unques- tionably , been denied minimum procedural due process " I do not agree. Section 102.14 of the Board's Rules and Regulations provides- Upon the filing of a charge, the charging party shall be responsible for the timely and proper service of a copy thereof upon the person against whom such a charge is made. The regional director will, as a matter of course, cause a copy of such charge to be served on the person against whom the charge is made, but he shall not be deemed to assume such responsibility for such service As indicated above, filing with the Regional Director and service on the Respondent both must occur within the 6-month period in order for the charge to be timely. Filing occurs when the charge is actually received by the Regional Director or other Board agent . In contrast, service on the Respondent occurs when the charge is placed in the mails or is hand delivered 45 Moreover, 4a American Homes Systems, 200 NLRB 1151 (1972), Siemons Mailing Service, supra 44 Federal Management Co, 264 NLRB 107 (1982), McKesson Drug Co„ 257 NLRB 468 fn- I (1981), Penn Corp, 239 NLRB 45 (1978) More- over, the burden of proving such an affirmative defense rests squarely on the party raising it, in this case the Respondent 4 s See Board 's Rules and Regulations Secs 102 111 (b)(1) and 102 112 61 Section 102.111(a) of the Board's Rules and Regulations provides in part. Charges . may be served personally or by regis- tered or certified mail . and the return post office receipt . when registered or certified and mailed . . shall be proof of service of the same The Respondent denied receipt of a copy of the charge filed with the Board in its amended answer to this complaint allegation , at the hearing, and in its brief General Counsel's Exhibit l(a-i) contains an affidavit of service of designated agent, Lillie Lampkin, which,-certi- fies that she served a copy of the charge on the Re- spondent by "postpaid certified mail" on 20 November 1986. Moreover, this exhibit also contains a green return receipt card for certified mail which shows a delivery date of "12/12/86" and which is addressed to the Re- spondent Significantly, the return receipt card is signed by a Ms. "Pietri" who is admittedly one of the Respond- ent's secretaries . Under the Board's Rules and Regula- tions the above is sufficient to establish a prima facie case as regards the allegation in the complaint that the Re- spondent was served with a copy of the charge filed with the Board. The burden of proof now shifts to the Respondent to refute this Additionally, as regards this issue as it impacts on the Respondent's 10(b) affirmative defense, the Respondent has the burden of proving such a defense. In its brief the Respondent "[directs the Court's atten- tion] to the fact that the green return receipt card does not have a stamp from the post office which is always present." However, return receipt cards do not always have a post stamp thereon, as evidenced by other green return receipt cards in evidence for certified mail regard- ing service of a copy of the complaint and notice of hearing herein on Chetrick and Delgado, and service of a copy of an order rescheduling the hearing on Che- trick.46 The Respondent also maintains that, "Moreover, it is quite difficult to imagine that ,a particular item sent by certified mail, return receipt requested, would be signed for some twenty-three to thirty days after it was first sent " Yet the Respondent provides a possible expla- nation for this occurring in its own argument The evi- dence shows that during the period from 20 November 1986 through 12 December 1986, the Respondent moved its union offices from Manhattan to Queens in the city of New York. The time lapse in delivery could well be ex- plained by the need of the U.S Post Office to transfer the certified letter from the Board containing the charge, from the old to the new office location post office for delivery Additionally, as mentioned by the General Counsel in her brief, the Respondent did not deny that it received some document by certified mail that is repre- sented by the return receipt card in question, but claims that there is no certainty that this card indicates that the document was the charge filed in this case Aside from the corresponding numbers on the return receipt card and the covering letter mailed along with the charge in 46 See G C Exhs l(a-i) Moreover, Chetrick did not deny receipt of these documents or that these return cards were deficient 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the same envelope as is done in the normal course of the Board's Regional Office procedure, the Respondent of- fered no proof that this return receipt card represented some other document served on it by the Board. The complaint alleges that the acts and conduct which comprise the unfair labor practices allegedly committed herein occurred on 10 September 1986. The charge was filed with the Board on 19 November 1986 and a copy of the charge was sent to the Respondent by certified mail on 20 November 1986, both services occurring well within the 6-month statute of limitations period. Incident- ly, actual delivery of the charge was accomplished on 12 December 1986, also within the 10(b) period. In view of the above, I find that the Respondent has failed to sus- tain its burden of showing that Section 10(b) of the Act bars consideration of the charges herein alleging unlaw- ful conduct on its part, or that its third affirmative de- fense has any merit.47 From all the foregoing, I find and conclude that the Respondent has failed to sustain its burden of establishing the above affirmative defenses, that these affirmative de- fenses are without merit, and that the Respondent's re- quest to dismiss the complaint on such grounds is denied. 3. The duty of fair representation Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor organization to "restrain or coerce" employees in the exercise of the rights guaranteed them in Section 7 of the Act, "Provided, that this paragraph shall not impair the right of a labor organization to pre- scribe its own rules with respect to the acquisition or re- tention of membership therein."48 Section 7 of the Act protects the right of employees to engage in union or other concerted activities or to refrain from such activi- ties. The rights protected by Section 7, however, are lim- ited by the principle of exclusive representation set forth in Section 9(a) of the Act.49 In view of the restraints im- posed on individual employee rights by the principle of exclusive representation, the Courts and the Board have imposed on labor organizations a reciprocal obligation of the Act to fully and fairly represent all the employees.50 97 As to the Respondent's assertion that it was denied "minimum pro- cedural due process," this assertion must fail in view of the above, and because the Respondent was served a copy of the complaint advising it of the "things claimed to constitute an unfair labor practice that the Re- spondent may be put upon his defense " American Newspaper Publishers Assn , supra. Moreover, as evidenced by the record , the Respondent was fully aware of the unfair labor practices alleged against it, appeared at the hearing apparently fully prepared to defend against these allegations, and at no time during the hearing offered any proof that would establish that it had been denied its due-process rights. 48 The purpose of and policy behind Sec 8(b)(I)(A), as set forth in Sec 10(b) of the Act, is "to protect the rights of individual employees in their relations with labor organizations " 99 Sec 9(a) of the Act provides. Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the em- ployees in such unit for the purposes of collective bargaining in re- spect to rates of pay, wages, hours of employment, or other condi. tions of employment See Emporium Capwell Co. v. NLRB, 420 U S. 50. 61-70 (1975), NLRB Y. Tanner Motor Livery, 419 F 2d 216, 218-221 (9th Cir 1969). SO Steele v Louisville A Nashville Railroad Co, 323 U S 192 (1944). NLRB a Postal Workers Si Louis. Missouri Local, 618 F 2d 1249 (8th Cir. As the Supreme Court of the United States stated in Vaca Y. Sipes, 386 U.S. 171, 177, 190 (1967): It is now well established that, as the exclusive bar- gaining representative of the employees . . . the Union [has] a statutory duty fairly to represent all of those employees, "and that this duty" includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid aribitrary conduct. A breach of the statutory duty of fair represen- tation occurs only when a union's conduct toward a member of the collective bargaining • unit is arbi- trary, discriminatory or in bad faith.61 A labor organization that fails to live up to this obliga- tion unjustifiably restrains employees in the exercise of their Section 7 rights and thereby violates Section 8(b)(1)(A) of the Act.52 The duty of fair representation gives employees a correlative right under Section 7 to be represented without arbitrary, irrelevant, or invidious discrimination by their exclusive representative. 53 More- over, it is also clear that the duty of fair representation extends to the investigation and representation of a griev- ance.54 At the same time, however, the Board and the Courts have recognized that unions must necessarily be allowed a "wide range of reasonableness" in servicing their constituencies, 65 i.e., processing grievances, but in the exercise of that discretion, a union must act in "good faith, with honesty of purpose, and free from reliance on impermissible consideration."56 Accordingly, a union 1980); Teamsters Local 315 (Rhode d Jamieson), 217 NLRB 616 (1975), enfd 545 F.2d 1173 (9th Cir. 1976) Si Also see Ford Motor Ca Y. Huffman, 345 U. S. 330 (1953), Wallace Corp. Y. NLRB, 323 US 248 (1944); H. H. Robertson Co, 263 NLRB 1344 (1982) SS In its landmark decision in Miranda Fuel Co, 140 NLRB 181 (1962), the Board held at 185 Viewing these mentioned obligations of a statutory representative in the context of the "right" guaranteed employees by Section 7 of the Act "to bargain collectively through representatives of their own choosing" we are of the opinion that section 7 thus gives employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting Their employ- ment. This right of employees is a statutory limitation on statutory bargaining representatives, and we conclude that Section 8(b)(IXA) of the Act accordingly prohibits labor organizations , when acting in a statutory representative capacity , from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair Although Miranda was reversed in 326 F 2d 172 (2d Or. 1973), the Second Circuit rejecting the Board's premises that a violation of the duty of fair representation constituted an unfair labor practice, the United States Supreme Court approved the doctrine in Vaca Y. Sipes, supra See U.S. Postal Service, 240 NLRB 1198 (1979), enfd in pertinent part 618 F 2d 1249 (8th Cir. 1980); Laborers Local 300 (Memorial Park), 235 NLRB 334 (1978). " Vaca Y. Sipes, supra at 177-178, 181-183; Kling Y. NLRB, 503 F.2d 1044 (9th Cir. 1975); Griffin P. Auto Workers, 469 F.2d 181 (4th Cir 1972). 54 Hines Y. Anchor Motor Freight, 424 U.S. 554 (1976). ss Hines Y. Anchor Motor Freight, supra, Ryan Y. New York Newspaper Printing Pressmen's Local 2 (N. Y. Times Ca), 590 F 2d 451 (2d Cir 1979); Carpenters Local 415 (Cincinnati Fixtures), 226 NLRB 1032 (1976) 56 P.P.G. Industries, 229 NLRB 713 (1977) FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) does not violate the duty of fair representation where it refuses to process a grievance pursuant to a reasonable interpretation of the collective-bargaining agreement57 and/or a good-faith evaluation regarding the merits of the complaint.58 However, the Supreme Court in Vaca v. Sipes explicitly held that a union will breach its duty of fair representation when it has "arbitrarily ignored a meritorious grievance or processed it in a perfunctory fashion."59 Once a union undertakes to present an employee's grievance, the obligation to represent him fully and fairly includes the duty to act as an advocate for the griev- ant.60 Moreover, as the Board stated in Teamsters Local 355 (Monarch Foods), 229 NLRB 1319, 1321 (1977), enfd. 597 F.2d 388 (4th Cir. 1979), However, the issue here is not whether the Re- spondent discharged its obligations with maximum skill and adeptness, but whether, in undertaking its efforts, it dealt fairly . The duty of fair representa- tion does not require that every possible option be exercised or that a grievant's case be advocated in a perfect manner. Thus a union is not liable under the duty of fair represen- tation for mere negligence, poor judgment , ineptitude, forgetfulness, or inadvertence.61 The Board as well as a majority of the courts have held that a union can violate its duty of fair representa- tion absent any evidence of bad faith if it is shown that the union acted in a perfunctory or arbitrary manner.62 54 Steelworkers Local 7748 (Eaton Corp), 246 NLRB 12 (1979), PPG Industries, supra, Carpenters Local 415 (Cincinnati Fixtures), supra 58 Communication Workers Local 3217 (Southern Bell), 243 NLRB 85 (1979) 58 Hines v Anchor Motor Freight, supra, Steelworkers Local 15167 (Memphis Stairs), 258 NLRB 484 ( 1981), enf denied 692 F 2d 1052 (7th Car 1982) Cf Service Employees Local 579 (Beverly Manor), 229 NLRB 692 (1977), in which the Board found that the union's grievance investi- gation was perfunctory and arbitrary, and San Francisco Web Pressmen Local (San Francisco Newspaper), 249 NLRB 88 (1980), in which the Board held that the investigation was reasonable 60 Hotel & Restaurant Employees Local 64 (HLJ Management), 278 NRLB 773 fn 3 (1986), Teamsters Local 705 (Associated Transport), 209 NLRB 292 (1974) Si Plumbers Local 195 (Stone & Webster), 240 NLRB 504 (1979), Labor- ers (Manganaro Masonry), 230 NLRB 640 (1977), King Soopers, Inc, 222 NLRB 1011 (1976), San Francisco Web Pressmen Local 4 (San Francisco Newspaper), supra, Teamsters Local 692 (Great Western), 209 NLRB 446 (1974), Operating Engineers Local 18 (Ohio Pipe), 144 NLRB 1365 (1963) In Service Employees Local 579 (Beverly Manor), supra, the Board found a violation of the union 's duty of fair representation when the union failed to conduct any investigation of the asserted reason for a discharge e2 See Service Employees Local 579 (Beverly Manor), supra, P.P.G In- dustries, supra, P & L Cedar Products, 224 NLRB 244 (1976), Newport News Shipbuilding & Dry Dock Co, 236 NLRB 1470 (1978), Teamsters Local 315 (Rhodes & Jamieson), 217 NLRB 616 (1975), Steelworkers (Inter-Royal Corp), 223 NLRB 1184 (1976), Figueroa de Arroyoyo Y Sindi- cato de Trabajadores Packinghouse, 425 F 2d 281 (1st Car 1970), cert denied 400 U S 877 (1970), Holodnak v Avco Corp, 514 F 2d 285 (2d Car 1975), cert denied 423 U S 892 (1975), Ryan v New York Newspaper Printing, 590 F 2d 451 (2d Car 1979), Griffin v Auto Workers, 469 F 2d 181 (4th Car 1972), Milstead v Teamsters Local 957, 580 F 2d 232 (6th Cir 1978), Ruzika v. General Motors Corp, 523 F 2d 306 (6th Car 1975), cert denied 104 S Ct 424 (1976), Miller v Gateway Transportation Co , 616 F 2d 272 (7th Cir 1980), Kesner v NLRB, 532 F 2d 272 (7th Cir 1976), cert denied 429 U S 983 (1976) 63 As the United States Court of Appeals for the Fourth Circuit explained in Griffin v. Auto Workers, 469 F.2d 181, 183 (1972): Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so un- reasonable and arbitrary as to constitute a violation of the duty of fair representation. A union may refuse to process a grievance or handle the griev- ance in a particular manner for a multitude of rea- sons, but it may not do so without reason, merely at the whim of someone exercising union authority. But, as the Board stated in Teamsters Local 692 (Great Western), 209 NLRB 446, 448 (1974): .. . it is clear that negligent action or nonaction of a union by itself will not be considered to be arbi- trary, irrelevant, invidious, or unfair so as to consti- tute a breach of the duty of fair representation vio- lative of the Act. Something more is required. [Em- phasis added.] And, in Miller v. Gateway Transportation Co., 616 F.2d 272 (7th Cir. 1980), the Seventh Circuit Court, citing Griffin stated: We note also that the duty of fair representation is of special importance when a grievance for wrong- ful discharge is involved . As the Fourth Circuit said, "A union must especially avoid capricious and arbitrary behavior in the handling of a grievance based on a discharge-the industrial equivalent of capital punishment." Griffin v., Auto Workers, 469 F.2d 191 (4th Cir. 1970). The complaint alleges that the Respondent represented Juan Dominguez, Julio Delgado, and Rogelio Rodriguez in a grossly negligent manner at their arbitration by, inter alia, engaging in the following conduct: (a) failing to give proper notice of said arbitration to employee Delgado so that he could participate in his defense, (b) proceeding with the arbitration on behalf of Delgado and failing to respond to the Arbitrator's inquiry as to whether or not he should rule upon Delgado's discharge notwithstanding Respondent's knowledge that Delgado had not received notice of the arbitration; (c) Failing to conduct a complete investigation and to conduct a complete defense with respect to all of the Employer's stated bases for the discharge of the three named employees; (d) failing to provide an interpreter and/or to translate for the named discharged employees, who did not speak English or understand English; and (e) failing to present as witnesses any of the dis- charged employees to testify as to the • circum- stances which resulted in their discharges, notwith- standing that they were the only witnesses compe- tent to testify to said events and circumstances. 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel alleges in her brief that: [I]n the instant case, not only did Respondent fail to conduct any investigation, but also failed to act as advocate for the three employees once it was at the arbitration. . . . In the instant case Respondent either conducted no investigation, or if it did con- duct one it only got the employer's version.63 Therefore, the only meeting which the three em- ployees had with the Respondent which appeared to have the look of an investigation was the one which took place on May 19 when the three em- ployees met with Torres at his office. . . . In view of the fact that Respondent chose to completely ignore the version of the facts which was presented by the three employees, and to accept the uncorro- borated version of the Employer, although there were questions of credibility, the May 19 meeting was tantamount to no investigation at all. I do not agree. The credited evidence shows that on 13 May 1986 after Dominguez, Delgado, and Rodriguez returned late from lunch, Marshak asked Zapata and DeSilva to find out the reason for their late return . On questioning these employees it was disclosed that they had returned late because of a flat tire experienced while driving to a res- taurant to buy lunch. It should be remembered that De- Silva is the Union's shop steward and presumably at the shop to protect the interests and rights of union member employees under the collective-bargaining agreement, and I find nothing in the record to counter this . Torres and DeSilva met with Marshak on 13 May 1986, after DeSilva had apprised him of the Employer's intent to discharge the three employees, and they sought to change the Employer's mind about firing them.84 More- over, DeSilva had previously attempted to save their jobs on 13 May 1986 when he reported to Marshak what the employees had told him and Zapata was the reason for their late return, and DeSilva asked Marshak not to fire them.65 On 19 May 1986, Dominguez, Delgado, and Rodriguez met with Torres at the Union's office and re- peated their account of what had occurred the previous week leading up to their discharges. Soon thereafter, Torres contacted the Union 's attor- ney, Chetrick, and explained the circumstances of the discharges of Dominguez , Delgado, and Rodriguez. Che- es The General Counsel questions the validity of the testimony of Torres and DeSilva that they met with the three employees on Fnday, 13 May 1986, and advised them that they might be fired and also "got their version of what happened on May 13," as unsupported by the facts since DeSilva later that day, after giving them their discharge letters, told them to take the letters to the Union and speak to Torres However, it is not implausible that DeSilva , even after he and Torres met with the employees earlier that day, would tell them to take the letters to Torres in order to have the Union process their grievances to arbitration, as Torres in DeSilva's presence had advised Marshak and the employees that the Union intended to do. 64 In Communications Workers Local 3217 (Southern Bell), 243 NLRB 85 (1979), the Board noted that the union had sought to have the disci- pline imposed on the employee (suspension) lifted or reduced and consid- ered this as part of the evidence that the union's efforts on behalf of the employee "rose above a perfunctory and arbitrary treatment of the em- ployee's matter " Also see Teamsters Local 355 (Monarch Foods), supra. 65 Ibid. trick then contacted DeSilva and got his account of what happened. Next Chetrick met with Torres at Che- trick's office to review the discharges in the context of the collective-bargaining agreement and to decide what the Union's course of action would be. In view of the admittedly poor lateness and absenteeism records of these three employees and mentioned in the Employer's discharge letter, Chetrick suggested that the Union's strategy at the arbitration be to oppose any attempt by the Employer to rely on their poor attendance records as justification for its discharge of the three employees as being immaterial, on the grounds that the Respondent's failure to grieve their prior incidents of lateness and/or absences, in effect, amounted to a "satisfactory adjust- ment" thereof within the meaning of the grievances and arbitration clause of the collective-bargaining agreement between the Employer and the Union . Therefore the Union would maintain at the arbitration hearing that the only issue presented therein for resolution was whether the incidents involving overtime work on 12 May 1986, and the employees late return from lunch on 13 May 1986, warranted and merited the extreme discipline of discharge.66 Additionally, credited evidence shows that just prior to the opening of the arbitration hearing on 10 Septem- ber 1986, Chetrick met with Dominguez and then Rodri- guez that morning and, with Torres interpreting, ob- tained their account of what had occurred the week of 12 May 1986 leading up to their being fired on 16 May 1986. He also asked them about their attendance records. Thus, except for Delgado, whose rendition of what had occurred could reasonably be presumed to be the same as that given by Dominguez and Rodriguez, and who did not appear at the hearing, the Union had obtained the stories of all the persons who were involved in or privy to the events leading to the firing of the three em- ployees and who could be considered as potential wit- nesses at the arbitration hearing in the Union's behalf. Under the circumstances present here, I cannot find that the Union failed to conduct "any investigation .. . or if it did conduct one it only got the employer's ver- sion." Given DeSilva's account of what he observed and heard of the conversation between Marshak , Zapata, Do- minguez, Delgado, and Rodriguez on 13 May 1986 before the employees left for lunch, and his account of what transpired after the employees returned late from lunch,67 and having heard Torres and DeSilva repeat 66 Under the circumstances present in this case , I do not find Che- trick's strategy as to how he would proceed at the arbitration to be so arbitrary or unreasonable as to constitute gross negligence. 84 As indicated earlier, DeSilva was the Union's shop steward and pre- sumably "on the Union's side" in the arbitration proceeding Moreover, the General Counsel offered no supportable evidence, nor do I find any preponderance of evidence showing that the Union was antagonistic to- wards these employees prior to and at the arbitration hearing , or that it was motivated by the employees ' exercise of any protected concerted ac- tivity, or that there was any personal hostility on the part of union offi- cials towards them See Auto Workers Local 417 (Falcon Industries), 245 NLRB 527 (1979); Buffalo Newspaper Guild Local 26 (Buffalo Courier), 220 NLRB 79 (1975), Electronic Workers Local 485 (Automotive Plating Corp), 170 NLRB 1234 (1968) FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) 65 what these employees had told them had happened re- garding their discharges, the Union and Chetrick could reasonably conclude as to what had actually occurred, notwithstanding any discrepancies in the employees' ac- count thereof or any change in their stories subsequently. I do find that the General Counsel has failed to sustain its burden of showing that the Respondent's investigation of the three grievants' matter in this case was perfuncto- ry or careless.68 With regard to the allegation in the complaint that the Respondent failed to present as witnesses any of the dis- charged employees to testify as to the circumstances that resulted in their discharges "notwithstanding that they were the only witnesses competent to testify to said events and circumstances," I do not agree that this con- stituted "gross negligence" or "arbitrariness." As stated by the Board in Teamsters Local 542 IBT (Golden Hill Hospital), 223 NLRB 533 (1976): In presenting the case to the arbitrator, the attorney supplied by the Union at all times represents the union as well as the grievants. It is for the attorney to determine what evidence is to be presented in support of the claim that the employer has violated the contract. A grievant has no special right to dic- tate what arguments are to be made or what testi- mony is to be sought. The arbitration was conducted in a "very informal" manner as acknowledged by Knowlton, the arbitrator.69 Marshak and the Respondent's attorney presented the Employer's side of what occurred in the form of un- sworn statements as testimony. Although Chetrick did ask questions of Marshak regarding his assertions, there was not the give and take of direct and cross-examina- tion under oath. The Union presented its version of what 11 San Francisco Web Pressmen Local 4 (San Francisco Newspaper), supra, Plumbers Local 195 (Stone & Webster), 240 NLRB 504 (1979) Con- trast, Service Employees Local 579 (Beverly Manor), supra, cited in the General Counsel's bnef The General Counsel in her brief also points to the fact that the Re- spondent did not request and inspect the timecards and/or work history of all the Employer's employees or to compare the three discharged em- ployees' lateness records with those of other employees whose latenesses were equal to or greater in number, as evidence of the Respondent's "ar- bitrary" and grossly negligent handling and processing of the grievances of the three discharged employees Again I do not agree While it might be anticipated that the Employer would submit the attendance records of Dominguez, Delgado, and Rodriguez at the arbitration hearing to bolster its justification for discharging these employees , and it may be argued that in the interest of thorough preparation for the arbitration hearing the better course of action might have been to counter this with the similarly poor or worse attendance records of other employees especially in the refinishing department , this might well constitute hindsight Chetnck's strategy and presentation of the grievants' case at the arbitration was based on a reasonable determination that they had been discharged mainly because of what occurred on 12 and 13 May 1986, the failure of Dominguez and Rodriguez to work overtime that Monday, and all three employees late return from lunch on Tuesday His apparently spirited at- tempts to preclude the Employer from offering evidence at that hearing of their attendance records, as being irrelevant and immaterial , was con- sistent therewith While another lawyer might have proceeded somewhat differently in the arbitration matter, this does not mean that Chetrick's handling of it, as he did, constituted gross negligence , or was "arbitrary" in nature 89 Without intending any criticism , the arbitrator is the person charged with the proper course and conduct of an arbitration hearing, procedural- ly. happened similarly, with Chetrick making its main pres- entation in the form of a comprehensive statement in de- fense of the grievants. Thereafter, although not too clear in the instant record, the Respondent's attorney asked questions of both Torres and DeSilva. This was in truth and fact a "very informal" arbitration hearing. Moreover, although Dominguez and Rodriguez were presumably the most knowledgeable witnesses to the events that transpired, having been participants therein, DeSilva also had first-hand knowledge of what had hap- pened and, additionally, Torres possessed material and relevant information as to what had transpired by virtue of his investigation of the grievances of these employees. Importantly, because DeSilva's account of what he heard and observed was significantly contrary in part to the grievants' story of what occurred on 12 and 13 May 1986, Chetrick's decision not to call Dominguez and Ro- driguez as witnesses at the arbitration does not appear to be so "arbitrary" and grossly negligent as to constitute a perfunctory treatment of the conduct of their grievance I do not find this to constitute a violation of the Re- spondent's duty of fair representation and therefore vio- lative of the Act.7 ° The complaint also alleges that the Respondent failed "to provide an interpreter and/or to translate for the named discharged employees, who did not speak English or understand English." The question of an interpreter was raised by the arbitrator at the hearing However, I believe that this was brought up in the context of the need for an interpreter in the event Dominguez or Rodriguez were to be called as witnesses or to give statements. Chetrick told Knowlton that Torres was bi- lingual and could act as an interpreter if need be. Che- trick's decision not to have them make statements negat- ed this. As to Torres' failing to advise Dominguez and Rodriguez concerning what was being said, because the hearing was being conducted in English, there is some testimony in the record that Torres did on occasion "lean over" and speak to Dominguez in Spanish. Howev- er, Torres' testimony concerning this was inconsistent and unclear,71 and I believe actually that he said little to them by way of translating what was being said in Eng- lish at the arbitration.72 My own observation of Domin- guez and Rodriguez during the instant hearing was that they do understand some English, enough to be general- ly aware of what goes on around them, but insufficient 70 Chetnck also offered as explanation , for not calling Dominguez and Rodriguez as witnesses or to have them make statements at the arbitra- tion hearing, that this would have opened "a Pandora's box" of testimony involving their latenesses and/or absences that he did not want to happen and that would be contrary to his "trial plan" therein That someone else would have proceeded differently in the presentation of a gnevant's case is no reason for finding that an attorney's own handling thereof was "ar- bitrary" or "perfunctory " 71 In his sworn statement given to a Board agent , Torres denied that Dominguez had asked him to translate what was occurring at the arbitra- tion hearing, although he did testify herein that both Dominguez and Ro- driguez had done so I did not believe Torres in this instance 72 However, a detailed interpretation of what was going on during the course of the actual proceedings, while Torres Dominguez and Rodri- guez were in the hearing room, might well have caused some disruption of the hearing, annoyance to the other parties there, or possibly conflict with Torres' absorption and attention regarding what was going on In truth this is conjecture on my part as an aside only 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to provide comprehension of the technicalities and nu- ances present in an administrative proceeding or were they to be required to testify therein . This is not to say that perhaps Torres should have attempted to translate in brief in general terms what was being said and/or occur- ring at the time. Be that as it may, I do not find this omission on the part of the Union to rise to the level of "grossly negligent" behavior or to constitute such unrea- sonable or arbitrary conduct as to be violative of the Re- spondent's duty of fair representation. From all the foregoing, I find and conclude that the General Counsel has failed to meet her burden of estab- lishing that the Respondent breached its duty of fair rep- resentation regarding Juan Dominguez and Rogelio Ro- driguez by its "arbitrary" and/or perfunctory processing of their grievances. I therefore recommend that the 8(b)(1)(A) allegations in the complaint regarding them be dismissed.7 3 The complaint alleges, in addition to the Respondent's failure to conduct a complete investigation and a com- plete defense, etc., regarding Dominguez, Delgado, and Rodriguez, as hereinbefore discussed, that the Respond- ent also breached its duty of fair representation by failing to give proper notice of the arbitration hearing to Del- gado, by proceeding with the arbitration on his behalf al- though he was not present at the hearing, and by failing to respond to the arbitrator's inquiry whether Delgado should be included in any award notwithstanding that it knew that Delgado had not received notice of the arbi- tration date and place of hearing. The record evidence shows that the Respondent sent Delgado written notice of the date, time, and place of the arbitration hearing but it was returned to the Union with the notation that Delgado was "Not Known" at the address indicated on the envelope enclosing the letter. The Respondent had addressed this letter to the address that Delgado had given it for receipt of mail, but had failed to include his apartment number .74 Moreover, the Respondent attempted to contact him by telephone sev- eral times at his sister's apartment, because Delgado has no phone of his own, but to no avail because no one an- swered the telephone . Thus the Respondent did make reasonable efforts to contact Delgado to apprise him of the arbitration hearing.75 79 San Francisco Web Pressmen Local 4 (San Francisco Newspaper), supra; Plumbers Local 195 (Stone & Webster), supra, Teamsters Local 355 (Monarch Foods), supra; Teamsters Local 542 (Golden Hill Hospital), supra. Contrast, Service Employees Local 579 (Beverly Manor), supra; P & L Cedar Products, supra. Moreover, the General Counsel's additional reli- ance on Teamsters Local 705 (Associated Transport), 209 NLRB 292 (1974), in support of her contentions appears misplaced . The Board in As- sociated Transport found that a union violated its duty of fair representa- tion because its representative openly stated at the hearing that he be- lieved that the grievance had no meal I do not find analogous to this statement, under the circumstances present in this case, and as alleged by the General Counsel, that by failing to conduct any investigation , by fail- ing to call the grievants as witnesses, and by failing to provide "any translator for them at the arbitration ," the Respondent, "in effect, told the arbitrator that the grievance of these three employees had no merit." 74 There is no evidence in the record to explain why a letter correctly addressed to someone was undeliverable because the apartment number was not included therein. Many explanations suggest themselves but none are supported herein 78 Although it was the obligation of the Union to advise Delgado of the arbitration , I have wondered why Dominguez and/or Rodriguez did The more troublesome fact, however, is the failure of the Respondent, through its attorney , Chetrick, or repre- sentative, Torres, to apprise the arbitrator that Delgado had not received notice of the arbitration hearing, ac- counting for his failure to appear at the hearing . Torres was aware of the returned undelivered notice letter and the unanswered telephone calls and Chetrick testified that it was on 10 September 1986, the day of the hearing, that he first learned that Delgado had not received notice of the arbitration. Instead, Chetrick told Arbitra- tor Knowlton that Delgado was not present, that he did not know where he was, and that he agreed to proceed with the arbitration hearing without his presence because Delgado's story was "exactly the same " as the other grievants, Dominguez and Rodriguez, who were there. Although Knowlton testified that the Union had in- formed him that all three grievants had been given notice of the hearing, his recollection of what occurred at the arbitration seemed at times unclear and he admit- tedly did not recall fully regarding what had transpired therein. However, Chetrick did indicate to Knowlton that the Union would seek to contact Delgado and find out if "[Delgado] wants to be a party to this arbitration and be bound."7 s Additionally bothersome is the Respondent's failure to advise the arbitrator that Delgado had been absent from work on Monday, 12 May 1986 , when Dominguez and Rodriguez were asked by the Employer to work over- time. In view of Knowlton's testimony that his award might have been different if he heard testimony "con- trary to what's in this [dismissal] letter," this piece of in- formation might well have had a mitigating effect on the arbitrator's decision regarding Delgado." As set forth earlier, a union breaches its statutory duty of fair representation when its conduct toward a member of the collective-bargaining unit is arbitrary, discrimina- tory, or in bad faith -78 There seems to be no contention in this case nor does the evidence support a finding that the Respondent acted in bad faith or out of hostility to- wards Delgado, or as found before, towards Dominguez and Rodriguez . However, the Respondent's duty of fair representation also encompasses an obligation to deal fairly with employees in taking certain actions or refrain- ing therefrom.79 Therefore, the key question in this in- siance is whether the Respondent has engaged in "arbi- trary conduct" regarding Delgado. As both the courts and the Board have held, for union action or nonaction to be considered arbitrary and, therefore, a breach of the duty of fair representation in violation of Section not contact Delgado about the hearing , especially in view of the admitted fact that all three were close friends and Dominguez called Rodriguez on the morning of the arbitration to make sure he was going to be present. This suggests the possibility that they too would have trouble contacting him as the Union had experienced . Be that as it may, the responsibility of advising the grievants of the date, time, and place of the arbitraton hear- ing remained with the Respondent. 18 1 am aware that under these circumstances Chetrick 's remarks could be construed as being somewhat misleading to the arbitrator at the time " This would appear to be more than mere conjecture because the ar- bitrator's award upheld the validity of Delgado 's discharge on the merits. 78 Teamsters Local 355 (Monarch Foods), supra, Carpenters Local 1104 (Law Ca), 215 NLRB 537 (1974). 7 ° Teamsters Local 355 (Monarch Foods), supra. FURNITURE WORKERS LOCAL 76B (OFFICE FURNITURE) 8(b)(1)(A) of the Act, "something more than mere negli- gence is required."80 "Mere negligence" standing alone, does not constitute arbitrary conduct.81 And as previous- ly set forth, the issue is not whether the Respondent dis- charged its obligations with maximum skill and adept- ness; but whether in undertaking its efforts, it dealt fairly. The duty of fair representation does not require that every possible option be exercised or that a griev- ant's case be advocated in a perfect manner.82 Therefore, whether I consider that the Respondent handled Delgado's grievance at the arbitration hearing in an inept manner, or used poor judgment therein, or was negligent, or exhibited a "lack of sensitivity" in its han- dling of the matter, I do not believe that its conduct was so "arbitrary" or egregious as to warrant a finding that the Union failed in its duty to fairly represent Delgado, nor has the General Counsel sustained its burden of proving so.83 Moreover, a review of the entire record fails to disclose circumstances that constitute the "some- thing more than mere negligence" necessary to convert the negligent act or omission on the Respondent's part into a violation of the Act. As the Board stated in Office Employees Local 2, 268 NLRB 1353 (1984): Exactly when conduct constitutes "something more than mere negligence" is not susceptible to precise definition. This is so because, as noted above, the totality of circumstances in each case must be exam- ined and evaluated. The Board in Office Employees Local 2 then reviewed various cases where the requisite "something more" or "arbitrariness" was present. In each of these cases the Board found the "something more" in a union 's hostility toward the grieving employee ,84 or a willful deception of the employee,85 or a conflict between a union official Bo Teamsters Local 692 (Great Westeri), supra 81 Ibid 81 Teamsters Local 355 (Monarch Foods), supra 83 Id at in 73 84 pacific Coast Utilities Service, 238 NLRB 599 (1978) 85 Auto Workers Local 417 (Falcon Industries), 245 NLRB 527 (1979) Also see Groves-Granite, 229 NLRB 56 (1977 ), in which the union dispar- 67 and the employee,86 or a union attempted to cause an employee to forfeit his senority rights on a groundless basis and in contravention of the collective-bargaining agreement.8 7 In this context and with the facts present in this case, I fail to find the circumstances that would constitute the "something more than mere negligence" necessary to convert the Respondent's acts or omissions into a viola- tion of Section 8(b)(1)(A) of the Act.88 Accordingly, I recommend the dismissal of the 8(b)(1)(A) allegations in the complaint regarding Julio Delgado. Based on all the foregoing, I recommend that the com- plaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondent, Amalgamated Industrial Union, Local 76B and its Divisions, Local 92-Local 76 (Local 76B Division) of the United Furniture Workers of Amer- ica, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Office Furniture Service, Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. The Respondent has not violated the Act as alleged. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed89 ORDER The complaint is dismissed in its entirety. aged the employee , harbored personal hostility, and willfully deceived the employees Also see Teamsters Local 814 (Beth Israel Medical), 281 NLRB 1130 (1986) 86 Electrical Workers Local 485 (Automotive Plating), 170 NLRB 1234 (1968) 8' Miranda Fuel Co, 140 NLRB 181 (1962), enf denied 326 F 2d 172 (2d Cir 1963) 66 Office Employees Local 2, supra 81, 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