Trans Tech Electric, Inc.

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trans Tech Electric, Inc. and Ralph H. Lingo. Case 25-CA-16412 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 15 October 1984 Administrative Law Judge William A. Pope II issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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,' and conclusions2 only to the extent consistent with this Decision and Order. ORDER The Respondent, Trans Tech Electric, Inc., South Bend, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off, refusing to recall, or otherwise discriminating against any employee for engaging in union or protected concerted activity. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We do not rely on the judge's statement in the first sentence of fn 9 deeming it "suspicious" that the Respondent did not offer employee Lingo a job at LaGrange after it laid him off from the Angola project Art III of the parties' collective-bargaining agreement states that the Union is the "sole and exclusive source of referral of applicants for em- ployment" With limited exceptions, not relevant here, employers cov- ered by the agreement are prohibited from directly hiring employees without first requesting and obtaining a referral from the Union As there is no evidence the Union referred Lingo for the LaGrange project, the Respondent's failure to offer him a job there was entirely consistent with its obligations under the contract The judge's reliance on such conduct as evidence of the Respondent's discriminatory motive was therefore in error Contrary to the judge, we rely on Lingo's credited statement in fn i l of the judge's decision that Respondent's vice president Martell told him he had been laid off "for pressuring [Martell] through the Local" as evi- dence of the Respondent's discriminatory purpose in laying Lingo off 2 Contrary to the judge, we conclude that a narrow rather than a broad injunctive order is appropriate in this case See Hickmott Foods, 242 NLRB 1357 (1979) In addition, the judge inadvertently omitted from his recommended Order provisions requiring the Respondent to remove from its files all references to its unlawful action against Ralph Lingo, and to notify the Regional Director of its compliance with the Order We shall issue a new order to correct these errors, and a new notice to em- ployees 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Ralph H. Lingo immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful layoff of and refusal to recall Ralph H. Lingo, and notify him in writing that this has been done and that the layoff and refusal to recall will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its South Bend, Indiana facility copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 25, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicrous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply s If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 274 NLRB No. 89 TRANS TECH ELECTRIC WE WILL NOT lay off, refuse to recall, or other- wise discriminate against any of you for engaging in union or protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Ralph H. Lingo immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from our laying him off and refusing to recall him less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to the layoff and refusal to recall him, and that the layoff and refusal to recall him will not be used against him in any way. TRANS TECH ELECTRIC, INC. DECISION STATEMENT OF THE CASE WILLIAM A. POPE II, Administrative Law Judge In a complaint issued on June 18, 1984, the Regional Director for Region 25 of the National Labor Relations Board, In- dianapolis, Indiana, alleged that Respondent Trans Tech Electric, Inc. engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by laying off and refusing to recall employee Ralph H. Lingo because Lingo had en- treated Respondent to comply with the terms of a collec- tive-bargaining agreement, and had reported Respond- ent's actual or intended violations of the agreement to Local Union 305, International Brotherhood of Electrical Workers (the Union or Local 305). The charge in this case was filed by Ralph H. Lingo on May 11, 1984. Trial was held on August 1, 1984, in South Bend, Indiana, before me. FINDINGS OF FACT I. BACKGROUND The Respondent, Trans Tech Electric, Inc., is an Indi- ana corporation with its principal place of business in Osceola, Indiana. The Respondent also maintains a facili- ty in South Bend , Indiana, from where it is engaged in the business of providing and performing electrical con- tracting services. In 1983 and 1984, the Respondent was hired as a subcontractor to install electrical wiring for the fuel storage and distribution systems at several rest areas along the Indiana Toll Road. The prime contrac- tor, LaPorte Construction, entered into individual con- tracts with the Respondent for the performance of such services at the Angola, Portage, LaPorte, Elkhart, and LaGrange rest areas. The first two of these contracts were awarded to Respondent about September 1983. The 633 last three of these contracts were awarded in the begin- ning of March 1984. At the time Respondent contracted to do the electrical wiring at the Angola rest area, it was not a party to a collective-bargaining agreement with Local Union 305, International Brotherhood of Electrical Workers (IBEW), in whose geographical jurisdiction, for purposes of union organization, the Angola rest area was located. But, prior to starting work on the project, the Respond- ent agreed, on August 26, 1983, to be bound by the terms of a collective-bargaining agreement, which was then in effect between the Fort Wayne Division, Central Indiana Chapter, National Electrical Contractors Asso- ciation, and Local Union 305 The collective-bargaining agreement contains a provision prohibiting an employer from subletting, assigning, or transferring any work in connection with electrical work to nonunion firms or in- dividuals. i As provided in the collective-bargaining agreement, Local Union 305 operates an exclusive hiring hall, and is the sole source of applicants for employment by electri- cal contractors who are parties to the collective-bargain- ing agreement and are working on projects located within Local Union 305's geographical jurisdiction, which includes both the Angola and LaGrange rest areas. The Union maintains a preferential hiring register which is the basis of its employment referral system. The register is divided into four groups, according to the levels of work experience of the applicants. When an em- ployer, who has assented to the collective-bargaining agreement, requires the services of an electrician for a job located within the Union's jurisdiction, that employer must contact the Union and request referral of a job ap- plicant. The Union, with limited exceptions, will then refer particular applicants for employment based on their experience and length of time on the register. Each time an electrician finishes working for an employer, he is again placed on the register, and his seniority on the reg- ister is counted from that time, except that electricians who work for 40 hours or less for a particular employer do not lose their positions on the register These latter employees are informally known as "short call men," be- cause of the brief duration of their employment. Outside firms such as the Respondent, whose principal place of business is in another local union's jurisdiction, however, are permitted to bring in one nonresident jour- neyman to work on projects within Local Union 305's jurisdiction. In this case, Respondent brought in David Blosser, a journeyman electrician who was an IBEW member, but not a member of Local Union 305.2 ' Sec 2 04(b) states The subletting, assigning or transfer by an individual Employer of any work in connection with electrical work to any person, firm or corporation not recognizing the IBEW or one of its Local Unions as the collective bargaining representative of his employees on any electrical work in the jurisdiction of this or any other Local Union to be performed at the site of the construction, alteration, painting, or repair of a building, structure, or other work, will be,deemed a material breach of this Agreement 2 Blosser is a member of IBEW, Local 153, South Bend, Indiana, where the Respondent maintains a facility 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blosser's position was that of a working foreman, in charge of both the Angola and LaGrange projects. He began work on the Angola project, by himself, about mid-October 1983 Ralph H Lingo, the Charging Party, a member of Local Union 305, was employed by the Re- spondent on November 14, 1983, to work on the Angola project, after being referred by the Union. Lingo testified that because work was scarce, the Angola project was the first work he had had in 2 years Lingo and Blosser worked together on the job for several weeks, until early January 1984,3 when the necessity arose to install certain electrical wiring, by a procedure known as "pulling the wire," which requires three workmen.4 Lingo asked Blosser if he was going to get more help to do the wire pulling job, and Blosser replied that the Respondent would use its own truckdrivers to handle the spools Lingo testified that he was aware of the collec- tive-bargaining agreement provision prohibiting an em- ployer from subletting, assigning, or transferring electri- cians' work, and he told Blosser that having the work done by the Respondent's truckdrivers would violate the collective-bargaining agreement, and that the work should be done by men in the Union who were qualified and willing to work. Lingo also told Blosser that he was going to call John Smith, the Union's business manager Lingo testified that Smith told him that the Union's men had to do the work Within a few days the Respondent requested that the Union refer another electrician, and Bob Steffon, who was referred by the Union, was hired as a "short call man" to work on the wire pulling job with Blosser and Lingo Sometime thereafter, the Re- spondent also brought on Gene Parkinson as a "short call man " LaPorte Construction, the prime contractor, apparent- ly subcontracted separately with Petroleum Equipment, Inc. (PEI) for the purchase and installation of the fuel pumps, interconnection boxes, computers, ticket printers, and cash drawers required for the Angola rest area The installation of this equipment was performed by PEI's employees, and by late February or early March 1984, PEI's work had progressed to the point where it was necessary to hook up the computers to the electrical wiring installed by Respondent. According to Lingo's testimony, about that time, he asked Blosser if "we was going to do the hookup." Blosser, according to Lingo, evaded the question until a few days later, when he told Lingo that PEI would do the hookup Lingo called Smith and explained what Blosser had said. According to Lingo, Smith said that if PEI did not have an agreement with the IBEW, then the Union's members had to do the hookup. Apparently shortly after his conversations with Blosser and Smith, Lingo saw Bill Lyvers Jr., a PEI employee, about to All dates refer to 1984, unless otherwise stated ° One electrician pulls electrical cables, called "feeders," which are about an inch in diameter and come on a large wooden spool , through a conduit to an interconnection box where the wire can be hooked up to a power source Each wooden spool has 550 feet of cable and weighs be- tween 1500 and 2000 pounds The spools are placed on an axle on a truck and turned by two men while the third pulls the wires through the con- duit The two men turning the spools grease their axles and keep the cable from binding and the insulation from ripping off by soaping the wires hook up the wires in the interconnection boxes, program the computer, and test run the system. Lingo testified that he asked Lyvers if PEI had an agreement with the IBEW, but Lyvers said that he did not know what Lingo was talking about and, according to Lingo, got mad and left. Lingo said that Blosser pleaded with him to "not cause a big hassle," but that he told Blosser that it was not his decision, that he was "under orders of the hall that we had to do the work." Lingo testified that while Blosser apparently went to call to someone in the Respondent's management, he again called Smith, who said, "We had to do it, he didn't want to hear anymore about it " When Blosser returned, Lingo testified, he re- peated Smith' s message, and Blosser said he would get back to Lingo on it. According to Lyvers, Lingo came over to him and told him that Lyvers could not make any of the connec- tions. According to Lyvers, Lingo said, "We are going to do all the work ourselves . We are going to hook it up " Lyvers said that when Blosser told Lingo, "Just let him go ahead and do it, forget it," Lingo replied, "No we [are] not going to do that. If there is any prob- lem I can always call the hall." Lyvers said he replied, "Fine, do whatever you guys want to do," and went to call his office Lyvers said he was instructed by his em- ployer to let them hook it up and to return when the connections were completed.5 Lingo completed the final connections, and about 1 week later Lyvers returned to check the wiring and test run the system. On March 10, the Respondent's vice president John A. Martell received a letter from Smith designating Lingo as steward on the Respondent's La- Grange project. On Tuesday morning, March 13, Lingo was given a check and a layoff slip According to a ter- mination report filled out by Blosser, Lingo was laid off on March 12 as part of a reduction in the work force. Martell testified that he decided to layoff Lingo and retain "short call man" Steffon based on Blosser's recom- mendation.6 At the time Lingo was laid off, Steffon had worked between 6 and 8 weeks as a "short call man." Martell testified that there was about 1 week of work for two men remaining on the Angola project when he laid off Lingo on March 13. But about March 15, after Lingo had been laid off, Bob Steffon was taken off the job by the Union Martell wrote the Union that the Respondent wished to retain Steffon as an employee until about March 21, but the Respondent neither requested that Lingo be returned nor asked that any other electrician be referred. Blosser, working alone, finished the Angola job on April 4, roughly 3 weeks after Lingo had been laid off On April 13, Smith, Martell, and Lingo attended a labor-management grievance meeting concerning, among other issues, the question of why the Respondent had chosen to retain a "short call" employee while deciding 5 Blosser was not questioned about these conversations or the earlier discussion with Lingo about the wire pulling job 6 Parkinson had left the job sometime earlier after working approxi- mately 39 hours That left Blosser, Lingo, and Steffon working on the Angola project TRANS TECH ELECTRIC to lay off Lingo 7 During the meeting Smith asked Mar- tell why the Respondent had laid off Lingo. Martell told Smith that it was the Respondent's option to keep the better man. An argument followed between Martell and Lingo, and the two of them were asked to leave the meeting. Lingo testified that while he and Martell were waiting after leaving the meeting, he asked Martell why Martell considered Steffon the better man, and Martell replied that he had been placed in a bad position by Smith in the meeting and he had had to say that. Lingo testified that he then asked Martell why he had been laid off, and Martell said, "Well you put pressure on me through the Local." Martell, in his testimony, in effect conceded that he felt Smith's question had placed him in a bad position during the labor-management meeting. Martell testified that he felt his comments about Lingo in the meeting were "emphatically" stated, and that his criticism of Lingo's abilities was overstated. However, Martell denied that he told Lingo he was laid off for having put pressure on Martell through the Local Union 305 Mar- tell testified that when Lingo asked him after they left the meeting, "Am I as bad as all that or as you made it sound?" Martell had replied, "No, you are not as bad as I made it sound, but I still have the right to choose the better man " According to Martell, at the time of the labor-manage- ment meeting, he was upset over the trouble caused by the issue raised by Lingo over who would do the com- puter terminations. Respondent was supposed to have completed its work on the Angola rest area by January 5, but was still not through by the end of February, and faced a potential penalty of $500 per day for the delay Martell said it was important that the job be completed without problems of the type that developed, and that he communicated his concerns to Lingo on April 13. The problems, Martell testified, included Lingo's getting the Union involved and the length of time it took to get the terminations done Martell said it took a day "to get it worked out with John Smith," and that he agreed let Lingo do the terminations, because Smith said Lingo was the best man in the local, with the most experience, to do the job. Nevertheless, it took far longer for Lingo to do the job than it should have. Martell stated that Lingo's slowness in making the computer terminations was a factor in his decision to lay off Lingo, although he went on to say that the principal reason was Blosser's recommendation. The Respondent began working on the LaGrange, La- Porte, and Elkhart rest areas in the early part of March, and completed those projects by the end of June The Respondent is not presently doing any work in Local Union 305's jurisdiction. II ISSUE The issue in this case is whether or not the Respond- ent violated Section 8(a)(1) and (3) of the Act by discri- minatorily laying off and refusing to recall its employee 7 Lingo himself had failed to file a timely grievance , and the issue of the propriety of his layoff was not per se the subject of this meeting 635 Ralph H. Lingo for assisting a union and entreating the Respondent to comply with the terms of a collective-bar- gaining agreement The General Counsel contends that Lingo was laid off for complaining about actions which he thought would violate the terms of the collective-bargaining agreement, and which in fact would have violated that agreement had they been carried out. Furthermore, the General Counsel asserts, the Respondent's stated motives for se- lecting Lingo for layoff were false, and therefore an ad- verse inference should be drawn that the Respondent's true motive was an unlawful one. The Respondent's position is that Lingo was laid off as part of the winding down of its work on the Angola project. The Respondent contends that it selected Lingo for layoff, while retaining Steffon, based on Lingo's ex- cessive absenteeism, slow work performance, lack of in- terest in his work, and comparatively greater need for supervision The Respondent asserts that the General Counsel failed to establish it laid Lingo off because of his complaint regarding the "wire pulling" work, and the Respondent contends that Lingo's complaint about PEI making the final computer connections did not even amount to concerted protected activity, inasmuch as Lingo did not raise the complaint based on a good-faith- belief that the performance of such work by non-IBEW personnel violated the collective-bargaining agreement. III. FINDINGS AND CONCLUSIONS An employer has the right to terminate the employ- ment of an employee whose work it believes is unsatis- factory, and had that been Respondent's motive in this case, it would not have violated the Act However, even now Respondent does not claim it laid off Lingo because of poor work performance, although it does say that had it known then what it knows now, it would have been justified in firing Lingo. From the outset Respondent claimed it had to layoff one employee because of the small amount of work re- maining on the Angola project, and that it chose to lay off Lingo, rather than his coworker Bob Steffon because Steffon was the better worker. While Respondent now argues that Lingo made mistakes and took too long to complete the computer termination, those observations, even assuming they are valid, are quite clearly largely, if not entirely, the product of hindsight. Indeed, the record does not support the conclusion that at the time Lingo was laid off, the Respondent had a substantial basis for criticizing his work on the computer terminations at the Angola project Respondent's vice president John A. Martell admitted that he did not observe Lingo's work, and the project foreman, David Blosser, testified that he never informed Lingo that he felt Lingo worked too slowly. Thus, even if Martell or Blosser was critical of the amount of time taken by Lingo to do the computer terminations, they said nothing to him at the time, and took no steps, so far as the record reflects to find out what was slowing Lingo down or to see what could be done to get the work done quicker The charge by Respondent's witnesses that Lingo took an excessive amount of time to make the terminations 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was, in fact, based on a comparison between the amount of time it took Lingo to do the work on the Angola project and the amount of time it took other Local Union 305 employees and PEI employee Lyvers to do the work on subsequent projects In short, I find that at the time Lingo was laid off, Respondent had no real basis for concluding that he took an excessive amount of time to do the computer terminations on the Angola project, or that he made mistakes, as Lyvers testified.8 Whatever the quality or lack of quality of Lingo's work for Respondent, I conclude that was not the reason that Respondent decided to lay him off, and Respondent cannot use the bootstrap argument that it could have fired him for such a reason had it known'of it to justify the action which it did take. There is also no doubt that Respondent could have laid off Lingo without violating the Act, because it no longer needed three electricians on the Angola project, and that it selected Lingo for layoff, as opposed to an- other Local Union 305 employee, based on the assess- ment of Lingo's supervisor that he was not ' as good a worker as the employee who was retained. That of course was the original explanation offered by the Re- spondent, and the one on which it still principally relies. The question, therefore, is whether, in fact, that was Re- spondent's motivation, or whether it laid off Lingo for some other, undisclosed reason There is nothing in the record to contradict Martell's assertion that the Angola job was nearing completion at the time Lingo was laid off, nor is there any basis for discrediting his claim that there remained only enough work for two men for one more week. While it appears that it actually took Blosser, working by himself, 3 more weeks to complete the job after Lingo and, shortly there- after, Steffon left the job, I do not find that grossly in- consistent with Martell's contention that the work could have been done by two workmen in 1 week. Neither do I find any basis in the record for discredit- ing Blosser's assessment that Steffon was a better worker than Lingo. Blosser was, an IBEW member (although of a different local union) who worked on the job as a working foreman. He was obviously in the best position of anyone involved in this case to assess and compare the work performance of Lingo and Steffon, and there is no reason of record to conclude that his assessment on this question was biased or improperly motivated. I do not find it necessarily inconsistent with his overall assess- ment, moreover, that he may have earlier told Lingo, as Lingo testified, that the latter did good work and might be used on the LaGrange project. His assessment given to Martell prior to Lingo being laid off was only that he - thought that Steffon was the better employee, not that Lingo was an unsatisfactory employee.9 8 While Lyvers, whose testimony I find credible, testified that Lingo had made mistakes in the computer terminations, there is nothing in the record which firmly establishes when, if, or how Lyvers' observations were communicated to Respondent 9 But, it is suspicious that Martell chose to lay off Lingo, assuming that he was no longer needed on the Angola project, rather than offer him employment on the LaGrange project, upon which work was starting, and for which other Local Union 305 members were hired Possibly bearing on Respondent's decision not to continue to employ Lingo was receipt of notification on March 10 from Local Union 305 designating On the other hand, arguably there is a major inconsist- ency in Respondent's claim that Lingo's layoff was no more than a reduction in its work force, when it is taken into account that Respondent was nearly 2 months behind in meeting the completion date for performance of its contractual work on the Angola rest area, and faced the possibility of a $500-per-day penalty under its contract. It would not seem to have made much sense for Respondent to reduce its work force by one-third under such circumstances, since it seems reasonable to conclude that whatever two workmen could do in 1 week, three could do sooner and, when facing a possible penalty of $500 per day, time would appear to have been of the essence. Furthermore, it is hard to believe that under these conditions, after Local Union 305 removed Steffon from the job, the Respondent would have elected to take the seemingly self-defeating position of refusing to recall Lingo on the dubious grounds that doing so would have been to give into the Union, as claimed by Martell, while the Angola job dragged on for 3 more weeks, again, with the attendant risk of a penalty of $500 for each additional day completion of Respondent's work on the project was delayed. That particular approach to the problem by Respondent appears to fall into the cate- gory of "cutting off its nose to spite its face."1° In any event, if Respondent had laid off Lingo only for the rea- sons it claimed, there would not appear to have been any reason for it to take such a strong position against recall- ing him. The inference reasonably can be drawn that Re- spondent's reluctance to rehire Lingo was tied in with its motive for laying him off in the first place, and the only unusual occurrence to have taken place likely to have given the Respondent a motive to want to get rid of Lingo so abruptly was his interference in company af- fairs by asserting that certain work had to be done by union members If there was no other evidence bearing on the question of whether or not Respondent's reasons for laying off Lingo were discriminatory, the decision would be a close one But, that is not the case. There is additional evi- dence which bears on Respondent's 'motives and removes any doubt that its motives for laying off Lingo and refus- ing to recall him were discriminatory In testimony during the trial of this case, Respondent's vice president John A Martell made a series of admis- sions which dispel any notion that he laid off Lingo only in order to accomplish a reduction in the work force made necessary by a reduced amount of work to be done He testified that at the labor-management meeting on April 13, he had overstated his criticism of Lingo's work record, because he had been put in a bad position by John Smith, Local Union 305' s business manager. He also testified that he was upset over the trouble caused by Lingo when he raised the issue of who would do the Lingo as steward on the LaGrange project, although it must also be said here that while Lingo was not laid off until March 13, Respondent con- tends that the decision to lay him off was actually made prior to March 10 10 It does not make Respondent's action appear any more reasonable that ultimately no penalty was assessed against it Martell testified that he was concerned about the possibility of a penalty being imposed at the time TRANS TECH ELECTRIC computer terminations . He admitted that Respondent was 2 months behind in completing its contract, and faced the possibility of substantial penalties, and that he felt it was important that the job be completed without problems of the type that developed These concerns, said Martell, were communicated to Lingo on April 13 The problems, Martell admitted in his testimony, includ- ed Lingo's getting the Union involved and the length of time it took to get the termination work done. Accord- ing to Martell, it took a day to get the issue worked out with John Smith, and despite the fact that he gave the work to Lingo, upon Smith's representation that Lingo was best qualified to do it, it took far longer for Lingo to do the job than it should have. That slowness, said Mar- tell, was a factor in his decision to lay off Lingo, al- though the principal reason was Blosser 's recommenda- tion. In that moment of candor, Martell permitted a brief, but from the standpoint of Respondent's case, very dam- aging glimpse of his true concerns and motives . Martell was, beyond any shadow of a doubt, dissatisfied with Lingo as an employee, not because of poor work per- formance but because he interfered with management's control of work on the Angola job and delayed its com- pletion further at a time when the project was already seriously behind schedule and Respondent faced possible severe financial penalties . By his own admission, he was upset over Lingo getting the Union involved in an issue which the latter had raised over who would perform certain electrical work on the job. Martell made it clear in his testimony that he neither needed nor wanted the kind of problem that Lingo had created. Martell specifi- cally mentioned the delay of 1 day while an arrangement was worked out with the Union, and threw in the charge that Lingo had delayed completion of the work even longer by taking too much time to complete the comput- er hookups, although in a real sense this charge is largely based on Respondent's experience on subsequent jobs, and it probably was not all that clear at the time that Lingo had taken an excessive amount to time, even as- suming that, in fact, he did Bearing directly on Martell's credibility as a witness is his apparent willingness to shade the truth where Lingo is concerned, as demon- strated by his admission that he overstated his criticism of Lingo's job performance when put in a "bad position" by the Union's business manager at the April 13 labor- management meeting 11 Based on the entire record, I find that Respondent ac- tually laid off Lingo because he had asserted complaints on two occasions that certain work on the Angola project had to be done by IBEW members, and he had i i Lingo testified , and Martell dented, that Martell also said on April 13 that Lingo had been laid off, because , "Well you put pressure on me through the Local " Based on the demeanor of both witnesses, and con- sidering Martell's other admissions , I credit Lingo's testimony on this point over that of Martell The remark attributed by Lingo to Martell is consistent with Martell 's other statements However , I do not rely on this alleged remark , since the statements which Martell , by his own admis- sion , did make, combined with all the other circumstances referred to in this decision are sufficient to support the finding that the General Coun- sel has met his burden of proving by a preponderance of the evidence that the explanation offered by Respondent for laying off Lingo was a mere pretext 637 gotten Local Union 305, IBEW, involved in the issues which he had raised. In light of Vice President Martell's testimony, the suspicious circumstances previously de- scribed in this decision become decisive. Respondent, which had earlier indicated to Lingo that he might be employed on the LaGrange project, which was under- way at the time he was laid off, suddenly and without warning laid him off. The ostensible reason given by Re- spondent for the layoff, that a third electrician was no longer needed on the Angola project, makes little sense in view of the amount of time Respondent was already behind schedule in completing the project. Instead, Re- spondent's decision to lay off Lingo makes sense only when it is viewed in light of Martell' s admission that he was upset over Lingo raising the issue of who would do the computer hookup, the involvement of the Union, and further delay in completion of the project. As a result of Lingo's actions, the hookup work was done by Respond- ent not PEI, and the actual job was given to Lingo, on the basis of the Union's assertion that he was best quali- fied. Respondent could, under those circumstances, hardly have laid off Lingo until the computer hookup was complete but, shortly after it was completed, the Re- spondent did lay him off It is clear that Respondent, at that point, wanted only to be rid of an employee who not once but twice had interrupted work on the Angola project by demanding that certain electrical work be given to IBEW members, and who, by involving Local Union 305, put additional pressure upon the Respondent to comply with his demands.12 It being clearly established that Respondent laid off and refused to recall Lingo because of his demands that certain electrical work be given to IBEW members, the only remaining question is whether by doing so he en- gaged in concerted protected activity. Respondent argues that the latter of the two incidents, the one which involved who would do the computer ter- minations, was clearly not concerted activity protected by Section 7 of the Act Citing NLRB v. City Disposal Systems, 104 S Ct. 1505 (1984), and Interboro Contractors, Inc., 157 NLRB 1295 (1966), Respondent argues that Lingo lacked the necessary reasonable honest belief that the subcontractor clause (of the collective-bargaining agreement between the Union and the Respondent) was being violated. PEI, asserts the Respondent, was not a subcontractor of the Respondent, and Lingo did not have a reasonable honest belief that it was. The other in- cident, says the Respondent, which involved the wire pulling task, occurred in January 1984, and there is no evidence that it in any way motivated selection of Lingo for layoff. However, contrary to the Respondent's assertions, I find that Lingo was engaged in concerted protected ac- 11 It is clear that at the time Lingo was laid off, the Respondent knew that he had been selected by Local Union 305 to be the shop steward on the LaGrange project The full impact of this cannot be assessed , howev- er, because it is not clear from the record whether Respondent knew of it before the decision was made to layoff Lingo It is much more certain that it must have been a factor in Respondent's decision not to recall Lingo to complete the Angola job after the Union took Steffon off the job 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivity when he complained that the computer hookup work had to be performed by IBEW members. It is true that in this case there is no evidence that in making the complaint that the computer termination was union work, Lingo was joined by any other employee of Respondent (although it is clear that he made the com- plaint in concert with the business manager of Local Union 305). And Respondent' s counsel correctly points out that Lingo made no reference to the subcontractor clause of the collective-bargaining agreement when he complained to Respondent, and that he was not con- cerned with whether or not PEI was a subcontractor of Respondent. According to Lingo's testimony, a few days before March 5, "I asked Dave [Blosser] when we was going to do the hookup [referring to the computer hookup] " Around March 5, again according to Lingo, he told Blosser that he had spoken to John Smith, Local Union 305's business manager, and that "John told me if he [PEI] didn't have an agreement with the International to do the union work, we had to do the work." Lingo testi- fied that by "we," he meant "Union Local 305 mem- bers." According to Lingo, after the PEI employee had left the worksite, he had another conversation with Blosser during which the latter pleaded with him not to cause a "big hassle." Lingo testified that "I told him it wasn't my decision, I was under orders of the hall that we had to do the work." On cross-examination, Lingo acknowledged that he did not tell Blosser what part of the contract Respondent would be violating if PEI did the work When questioned about his knowledge of whether PEI was a subcontractor of Respondent, Lingo said that he did not know, and that it did not make any difference. As stated by Lingo, "No. It didn't make no difference unless they had an International agreement to do my electrical work." David Blosser, although called as a witness by both the General Counsel and the Re- spondent, was not questioned concerning his conversa- tions with Lingo about who would do the computer hookup. But, while Lingo did not make mention to Blosser, at that time, of any specific provision of the collective-bar- gaining agreement between Respondent and Local Union 305, it is clear that he was aware of section 2.04(b) of the agreement which prohibits the subletting , assigning, or transfer of electrical work by an employer "to any person, firm or corporation not recognizing the IBEW or one of its local unions as the exclusive bargaining rep- resentative." According to Lingo, in January 1983, in connection with his successful complaint that Respond- ent should hire another union member to help on the wire pulling job, and not use truckdrivers, he had read section 2.04(b) of the collective-bargaining agreement. Lingo testified concerning the wire pulling incident that: "I told David, well I had an agreement with me. I looked through the agreement. I know 204(b) [sic], if they did use truck drivers they would be in violation of the agreement, and I told Dave that electricians, I mean the work should be done by our men and we had many qualified workers in our union that were willing to work, and that truck drivers did not do electrical work." In NLRB v. City Disposal Systems, 104 S.Ct. 1505 (1984), the Supreme Court approved the Board's long- standing Interboro13 doctrine recognizing that an individ- ual's assertion of a right grounded in a collective-bar- gaining agreement is concerted activity protected by Section 7 of the Act The Court said The invocation of a right rooted in a collective-bar- gaining agreement is unquestionably an integral part of the process that gave rise to the agreement That process-beginning with the organization of a union, continuing into the negotiation of a collec- tive-bargaining agreement, and extending through the enforcement of the agreement-is a single, col- lective activity. Obviously, an employee could not invoke a right grounded in a collective-bargaining agreement were it not for the prior negotiating ac- tivities of his fellow employees. Nor would it make sense for a union to negotiate a collective-bargain- ing agreement if individual employees could not invoke the rights thereby created against their em- ployer. Moreover, when an employee invokes a right grounded in the collective-bargaining agree- ment, he does not stand alone. Instead, he brings to bear on his employer the power and resolve of all his fellow employees . . . . A lone employee's invo- cation of a right grounded in his collective-bargain- ing agreement is, therefore, a concerted activity in a very real sense.14 The Supreme Court also stated in its decision in City Disposal Systems, that the acts of joining and assisting a labor organization, even though by a lone employee, are also concerted action protected under Section 7: Furthermore, the acts of joining and assisting a labor organization, which Section 7 explicitly rec- ognizes as concerted , are related to collective action in essentially the same way that the invocation of a collectively bargaining right is related to collective action. When an employee joins or assists a labor organization, his actions may be divorced in time, and in location as well, from the actions of a fellow employees. Because of the integral relationship among the employees' actions, however, Congress viewed each employee as engaged in concerted ac- tivity. The lone employee could not join or assist a labor organization were it not for the related orga- nizing activities of his fellow employees.' s The Supreme Court made it clear, moreover, that an employee need not explicitly refer to the collective-bar- gaining agreement in order for his action to be concerted activity protected by Section 7. Nor, is it required that the employee be correct in his belief that the collective- bargaining agreement was violated. All that is required is that his belief be honest and reasonable, and that the nature of it be communicated to his employer. 13 Interboro Contractors, 157 NLRB 1295 (1966), enfd 388 F 2d 495 (2d Cir 1967) 14 NLRB v City Disposal Systems, supra, 104 S Ct at 1511 15 NLRB v City Disposal Systems, supra, 104 S Ct at 1512 TRANS TECH ELECTRIC As long as the nature of the employee's complaint is reasonably clear to the person to whom it is com- municated, and the complaint does, in fact, refer to a reasonably perceived violation of the collective- bargaining agreement, the complaining employee is engaged in the process of enforcing that agreement In the context of a workplace dispute, where the participants are likely to be unsophisticated in col- lective-bargaining matters, a requirement that the employee explicitly refer to the collective-bargain- ing agreement is likely to serve as nothing more than a trap for the unwary . . . The rationale of the Interboro doctrine compels the conclusion that an honest and reasonable invocation of a collective- ly bargained right constitutes concerted activity re- gardless of whether the employee turns out to have been correct in his belief that his right was violated. The NLRB's Interboro doctrine recognizes as con- certed activity an individual employee's reasonable and honest invocation of a right provided for in his collective-bargaining agreement. We conclude that the doctrine constitutes a reasonable interpretation of the Act.16 I find that under the facts of this case, the General Counsel has proven by a preponderance of the evidence that Lingo had a reasonable and honest belief that the computer termination work should, under the collective- bargaining agreement to which his employer, the Re- spondent, was a party,17 be performed by IBEW mem- bers, to include himself and his fellow employees, unless PEI was a party to a collective-bargaining agreement with the IBEW, which from the outset did appear to be the case, and that he perceived that the Respondent did not intend to comply with the provisions of the agree- ment. Lingo was familiar with the provision of the agreement prohibiting an employer from subletting, as- signing, or transferring electrical work, which the com- puter termination work clearly was, to non-IBEW em- ployees or employers, and, indeed, had successfully in- voked that provision of the collective bargaining agree- ment earlier against Respondent in connection with the wire pulling job. He ascertained, as best he could, that PEI was not a party to a collective-bargaining agreement with the IBEW, and complained to Respondent that the computer termination work had to be done by IBEW members, using on several occasions the pronoun "we" with reference to who should do the work, thus clearly encompassing himself and his fellow employee in his complaint. It is clear that he did not know what the con- tractual arrangement, if any, between PEI and the Re- spondent was, but he had no reasonable access to that in- formation in the first instance, and, in any event the Su- preme Court has made it plain that it does not matter whether he was correct, the only requirement being that his belief the collective-bargaining agreement was being 16 NLRB v City Disposal Systems, supra, 104 S Ct at 1516 17 As previously noted, the collective-bargaining agreement to which the Respondent gave its assent was between an association of electrical contractors and Local Union 305 639 violated was honest and reasonable, which, I find, it was. Neither, of course, is it significant that he made no spe- cific reference to the collective-bargaining agreement when he made his complaint to the Respondent There is no doubt but that Respondent knew that the basis of his complaint was his perception of the collective- bargain- ing agreement, particularly in view of the fact that this was the second time in 3 months that he had asserted that under the collective-bargaining agreement work be- longed to the IBEW Lingo was clearly attempting to invoke a right which he believed to be grounded in a collective-bargaining agreement, to which his employer was a party, his belief was honest and reasonable, it was communicated clearly to his employer; and, even if he acted alone, he was engaged in concerted activity pro- tected by Section 7 of the Act.18 Although I specifically find that Lingo was attempting to invoke a right grounded in a collective-bargaining agreement, his complaint to Respondent also amounted to concerted activity protected by Section 7 because he was assisting a union, an activity which the Supreme Court in City Disposal Systems, found to be analogous to the invocation of a collective-bargaining right by a lone employee. Regardless of whether or not Lingo was trying to secure the electrical work involved specifically for himself and his fellow employee, or for other union members, as a right under the collective-bargaining agreement, he was assisting Local Union 305, and active- ly consulted with its business manager, in attempting to secure the work for IBEW members. On that ground, alone, he was engaged in concerted activity protected by Section 7 In summary, I find that Lingo was engaged in concert- ed activity protected by Section 7 of the Act when he complained to Respondent that the computer termination work belonged to the International Brotherhood of Elec- trical Workers, and that the Respondent violated Section 8(a)(1) and (3) of the Act when it laid him off and re- fused to recall him, as alleged in the complaint, because it was motivated by his protected concerted activity. CONCLUSIONS OF LAW 1 The Respondent, Trans Tech Electric, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union 305, International Brotherhood of Electrical Workers is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Union and the Re- spondent have been bound by the terms of a collective- bargaining agreement 4 By complaining to Respondent that certain electri- cal work should be performed by members of the Inter- 18 This case is distinguishable from the Board's recent decision in Meyers Industries, 268 NLRB 493 (1984), in which the Board stated that it was not its intention to set forth the parameters of Interboro, noting that the issue of the validity of that doctrine was then pending before the Supreme Court in City Disposal Systems In Meyers Industries, the Board dealt with the issue of whether an employee acting alone, where there is neither a collective-bargaining agreement nor an attempt to enforce one, can be said to be engaged in concerted activity 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD national Brotherhood of Electrical Workers as a matter of right under a collective -bargaining agreement, the Charging Party, Ralph H. Lingo, engaged in concerted activity protected by Section 7 of the Act 5. By laying off its employee, Ralph H. Lingo, on March 13, 1984, and refusing to recall him since then in retaliation for his having invoked rights grounded in a collective-bargaining agreement, and his having assisted a union, the Respondent violated Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in unfair labor practices, I find it appropriate to order Respondent to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. Respondent, having engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, shall be ordered to cease and desist from engaging in these unfair labor practices. Respondent, having committed unfair labor practices by discriminatorily laying off and refusing to recall its employee, Ralph H. Lingo, for invoking rights grounded in the collective -bargaining agreement then in force be- tween Respondent and Local Union 305, International Brotherhood of Electrical Workers, and for assisting a union, shall offer Ralph H. Lingo full reinstatement to his former position or to a substanitally equivalent posi- tion, if that position no longer exists, without prejudice to his seniority or any rights or privileges, and shall make him whole for any loss of earnings which he may have sustained as a result of the Respondent unlawfully laying him off and not recalling him since March 13, 1984. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication ]