Omni Commercial Lighting, Inc.

612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364 NLRB No. 54 Omni Commercial Lighting, Inc. and Anthony Hop- kins International Brotherhood of Electrical Workers Lo- cal 134 and Anthony Hopkins. Cases 13–CA– 134425 and 13–CB–135163 July 19, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA On May 8, 2015, Administrative Law Judge Donna N. Dawson issued the attached decision. The Respondent Employer filed exceptions and a supporting brief, and the General Counsel filed an answering brief. In addition, the General Counsel filed limited exceptions and a sup- porting brief, and the Respondent Union filed an answer- ing brief to the General Counsel’s limited exceptions and the Respondent Employer’s exceptions. The Respondent Union also filed a statement to the Board. The National Labor Relations Board has delegated 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,1 and conclusions and to adopt the recommend Order as modified and set forth in full below.2 The judge found, among other things, that the Re- spondent Employer (Omni) violated Section 8(a)(1) of the Act by terminating employee Anthony Hopkins for asserting rights he believed he had under a collective- bargaining agreement. As explained below, and contrary to our dissenting colleague, we agree with the judge’s finding.3 1 The Respondent Employer has excepted to some of the judge’s credibility findings. 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. 2 We amend the judge’s remedy to provide that interest shall be compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), we shall modify the judge’s rec- ommended tax compensation and Social Security reporting remedy. We shall modify the judge’s recommended Order and substitute a new Notice to reflect this remedial change. We shall also substitute a new notice to conform to the Order as modified. 3 There are no exceptions to the judge’s additional finding that the Respondent Union violated Sec. 8(b)(1)(A) by failing and refusing to carry out its duty to fairly represent Hopkins in the processing of his grievances. The judge found Omni solely liable for the backpay owed to Hop- kins. We agree. Contrary to the General Counsel’s and Omni’s con- tentions on exception, joint and several liability is not warranted in Facts Omni provides commercial lighting services to its cus- tomers. These services include electrical work on light- ing fixtures and underground wiring. When Omni’s owner, Christine Chwala, started the company in 2000, she took over a signage business and entered into a col- lective-bargaining agreement (CBA): a “sign agreement” (SA) with International Brotherhood of Electrical Work- ers, Local 134 (the Union). That agreement expired in 2009. The SA is one of three CBAs the Union offers em- ployers who employ class “B” maintenance electricians. The other two CBAs the Union offers for its “B” electri- cians are the “Maintenance Agreement” (MA) and the “Lighting Maintenance Agreement” (LMA). The SA covers work related to commercial signage. The MA covers a broad scope of electrical work on commercial buildings, including work on interior and exterior light- ing fixtures. The LMA is more limited in scope, cover- ing work inside of lighting fixtures. The MA provides the highest wages and benefits of the three “B” agree- ments while the LMA provides the lowest wages and benefits. Omni hired Hopkins on August 14, 2013.4 When he interviewed for a position with Omni, Hopkins was working for another company, Nucore Electric, and his terms and conditions of employment were governed by the MA. During his interview with Chwala, Hopkins specifically told her he wanted to continue working un- der the MA and receive the $32.50 hourly wage provided under that contract. Chwala agreed, stating she “would be fine with the maintenance agreement.” Thereafter, these circumstances, as the record contains no facts showing any con- duct by the Union in connection with Hopkins’ discharge. See Tubari Ltd., Inc., 287 NLRB 1273, 1274 (1988) (having ordered respondent employer to reinstate and make whole the employees it unlawfully discharged, unnecessary to additionally order an affirmative remedy for union’s failure to fairly represent employees at a subsequent arbitration proceeding), enfd. mem. 869 F.2d 590 (3d Cir. 1989); compare New- port News Shipbuilding & Dry Dock Co., 236 NLRB 1470, 1471 (1978) (joint and several liability ordered where facts showed union contemporaneously consented to employer’s unlawful discharge and thereafter refused to appeal the employee’s discharge to next step of grievance procedure), enf. granted in part, denied in part 631 F.2d 263 (4th Cir. 1980); Pacific Coast Utilities Service, Inc., 238 NLRB 599, 599, 606–607 (1978) (joint and several liability ordered where facts showed union’s decision to “acquiesce to” employer’s termination of union steward motivated by animus toward steward’s extensive dissi- dent activities), enfd. 638 F.2d 73 (9th Cir. 1980); Sargent Electric Co., 209 NLRB 630, 630 fn. 1 (1974) (joint and several liability ordered where facts showed union official had “extraordinary power to remove employees from the job” and the union’s approval of the employee’s discharge assumed “the characteristic of an affirmative rather than quiescent act.”), enfd. 506 F.2d 1051 (3d Cir. 1974). 4 All dates hereafter are in 2013 unless stated otherwise. OMNI COMMERCIAL LIGHTING, INC. 613 Hopkins submitted a job application, wherein he reiterat- ed his request for the $32.50 wage rate, consistent with the MA. From the beginning of his employment with Omni, Hopkins performed work similar to the electrical work he performed at Nucore and, consistent with Chwala’s as- surance, received the MA wage rate ($32.50 an hour). However, about 2 weeks into his employment, the Un- ion’s business representative, Paul Johnson, notified Hopkins that Omni did not currently have a collective- bargaining agreement with the Union. Johnson advised Hopkins to keep working while the Union negotiated a new contract. Johnson did not specifically reference the MA, or any other contract, in this conversation. Hopkins continued performing the same work at the same wage rate. Shortly after November 8, Hopkins received notification that his health and welfare benefits would be terminated effective December 1. Hopkins contacted Johnson, who said the benefits were terminated because Omni still had not signed a contract, as it had not yet secured the bond necessary to implement the con- tract. When Hopkins informed Chwala of his loss of coverage, Chwala offered to pay for interim health insur- ance until Omni signed a collective-bargaining agree- ment. Afterward, Hopkins spoke again with Johnson, asking why his MA had not yet been signed. Johnson did not dispute that the MA was the applicable CBA, replying that he [Johnson] “[knew] what agreement goes in place.” In mid-December, Hopkins’ health insurance was rein- stated, and Chwala informed Hopkins that Omni and the Union had finally signed a collective-bargaining agree- ment. Chwala did not mention, however, that the con- tract they executed was not the MA, as previously repre- sented to Hopkins, but the LMA. Nor had Hopkins rea- son to suspect it was not the MA, because he thereafter continued to perform the same work, continued to re- ceive the same (MA) wages, and heard nothing from Omni or the Union that called into question Chwala’s assurances that the MA was “fine.” Further, although the benefit contributions were $4 an hour less in the LMA than the MA, Hopkins was not aware of this reduction as it was not reflected on Hopkins’ pay stubs or in his bene- fit statements. In May 2014,5 Hopkins received a letter from the Un- ion recommending ratification of a newly negotiated MA. The new contract included a $1 hourly wage in- crease and an increase in benefits effective June 1. Hop- kins voted to ratify the agreement. Shortly after June 1, Hopkins learned that his brother, who worked for another 5 All dates hereafter are in 2014 unless otherwise noted. employer and was covered by the MA, received the $1 hourly wage increase. Hopkins, however, did not receive the increase. On about June 9 or 10, Hopkins asked Omni’s General Manager, William Milbourn, why he had not received the pay increase provided in the new MA. Milburn con- sulted with Chwala, and on June 12 he told Hopkins that Omni and the Union had executed the LMA. Milbourn added that Hopkins was already being paid more than what the LMA required, and he gave Hopkins a 1-page summary of the LMA wages and benefits. Hopkins thereafter questioned both Omni’s manage- ment and the Union about their execution of the LMA rather than the MA. Hopkins insisted that Omni and the Union had executed the wrong contract, and he requested that the Union resolve the matter on his behalf. Johnson responded that he would get back to him because he did not know what contract was actually in place. On June 17, Johnson told Hopkins that Omni and the Union had indeed executed an LMA, under which the scope of work covers any work inside of a light fixture. Hopkins dis- puted that his work at Omni was limited to such work. After receiving a copy of the LMA from Johnson, Hop- kins emailed Johnson and a second Union Business Rep- resentative, Don Finn, stating that Johnson fully under- stood that a MA contract should have been put in place to cover his work at Omni. At the end of the workday on June 18, Milbourn ap- proached Hopkins to discuss Hopkins’ concerns. Mil- bourn explained that Johnson had confirmed that Hop- kins could perform his work under the LMA and added that the benefit contributions under the LMA were $4an hour less than required under the MA. Hopkins respond- ed that the work he performed for Omni was outside the scope of work set forth in the LMA, and he was entitled to the higher wages and benefits under the MA. Hopkins then suggested that they “talk about it” with Johnson at a later date, but Milbourn responded that Chwala would not change the contract. Milbourn then told Hopkins that, “if you want to find another job, you can.” Before Hopkins could respond, Milbourn said, “[y]ou know what, you’re fired. Give me your [work] phone.” Mil- bourn then ordered Hopkins to get his work tools out of his truck. Hopkins complied. That afternoon, Hopkins emailed Chwala, informing her of the conversation with Milbourn. Chwala respond- ed that she supported Milbourn’s decision and stated that Hopkins’ final paycheck would be delivered by courier. The Judge’s Decision The judge found that Omni violated Section 8(a)(1) of the Act by discharging Hopkins. Applying NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984), the judge 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD found that Hopkins engaged in protected concerted activ- ity by asserting rights he reasonably and honestly be- lieved he had under the MA, and that Omni discharged him for making this claim. In so finding, the judge re- jected Omni’s contention that City Disposal is inapplica- ble because Hopkins tried to invoke the terms of the MA rather than those in the contract that Omni and the Union actually executed. The judge observed that under City Disposal it matters not whether Hopkins was correct in his assertion of contractual rights but whether his belief was honest and reasonable. As explained below, and contrary to the Respondent and our dissenting colleague, we agree with the judge. Discussion As the record establishes that Omni discharged Hop- kins for claiming he was entitled to the rights set forth in the MA, the issue whether the discharge violated the Act turns on whether Hopkins’ assertion constituted protect- ed concerted activity. In NLRB v. City Disposal Systems Inc., the Court approved the Board’s Interboro doctrine, under which the assertion by an individual employee of a right grounded in a collective-bargaining agreement is concerted activity protected by Section 7 of the Act. 465 U.S. 822, 832–834. The Court explained that an em- ployee does not lose protection simply because he was incorrect in his belief that he had a contractual right: [t]he rationale of the Interboro doctrine compels the conclusion that an honest and reasonable invocation of a collectively bargained right constitutes concerted ac- tivity, regardless of whether the employee turns out to have been correct in his belief that his right was violat- ed. Id. at 840. Thus, the question of whether Hopkins engaged in protected concerted activity requires a determination of whether Hopkins had a reasonable and honest belief that he was entitled to the contractual terms in the MA. We find that the record clearly shows Hopkins held such a belief. From the outset, Hopkins was led to believe that the terms and conditions of his employment with Omni were governed by the MA. Indeed, in his interview and job application, Hopkins made clear his desire to continue working under the MA, the contract governing his cur- rent employment, and Chwala assured him she was “fi- ne” with that agreement. Further, when Hopkins began working for Omni, and for nearly 9 months thereafter, Hopkins received the hourly wage set forth in the MA, and performed work similar to that performed at his pre- vious job, where he worked under the MA. Even when informed of the delay in executing the contract, neither Omni nor the Union mentioned any possibility of execut- ing a contract other than the MA, which Chwala had as- sured Hopkins would apply to him. Indeed, Hopkins was reassured that an MA would be executed when Johnson told him that he “[knew] what agreement goes in place.” Significantly, after Omni and the Union executed the LMA in December, neither Chwala nor anyone else at Omni ever informed Hopkins of this fact, despite Chwa- la’s previous assurance that the MA would be “fine.” We find that these facts clearly demonstrate that Hop- kins held a reasonable and honest belief that the MA was the applicable contract governing his employment with Omni. The facts further establish that when Hopkins learned, months later on June 12, that Omni and the Un- ion had actually executed the LMA, he reasonably be- lieved that Omni and the Union mistakenly executed the wrong contract, as it was the MA rather than the LMA that reflected the wages he was paid, the scope of work he was performing, and the assurances he was given. As explained above, it matters not whether Hopkins’ con- tractual claim was factually correct, but only whether his claim was a reasonable and honest one; that is all that City Disposal requires. See generally, K-Mechanical Services, Inc., 299 NLRB 114, 118 (1990) (employee’s honest and reasonable assertion that he was entitled to overtime pay protected even though employee was not, in fact, covered by the portion of the agreement that formed the basis for the assertion); Yellow Transporta- tion, Inc., 343 NLRB 43, 47 (2004) (employee’s asser- tion of reasonable and honest belief that employer violat- ed past practice, and thereby the contract, in failing to hire him was protected under the Interboro doctrine even though employee was incorrect and had no contractual right to be hired). 6 Our dissenting colleague contends that Hopkins’ con- duct falls outside the Interboro doctrine because he did not invoke his rights under the LMA, the contract actual- ly executed. Our colleague’s contention, however, ig- nores the facts that establish that Hopkins was indeed invoking the terms of the agreement he reasonably and honestly believed applied to him.7 His contention also 6 Our colleague contends that K-Mechanical Services and Yellow Transportation are distinguishable because Hopkins “did not reasona- bly and honestly believe that the LMA entitled him to the terms provid- ed in the MA.” Our colleague’s contention is without merit, as it rests on a mischaracterization of the issue at hand. In these circumstances, the application of the Interboro doctrine requires a determination of whether Hopkins had an honest and reasonable belief that the MA applied to him and that the parties had mistakenly signed the wrong contract. 7 Our colleague erroneously characterizes Hopkins’ assertion as a claim “that he should have been covered by a different CBA (emphasis added).” This characterization ignores the critical point here, that Hop- kins’ assertion of rights under the MA was grounded in his honest and OMNI COMMERCIAL LIGHTING, INC. 615 ignores the fact that, under City Disposal and its proge- ny, employees do not lose the protection of the Act if it turns out that their belief was incorrect. Id. at 840. The cases our colleague relies on are distinguishable and, as such, do not support his contention. In Newark Morning Ledger, 316 NLRB 1268, 1271 (1995), the Board adopted the judge’s finding that an employee’s conduct was not protected because it amounted to an attempt to change a term of the collective-bargaining agreement and a longstanding past practice. Unlike here, the facts in Newark demonstrated that the employee lacked a reasonable and honest belief that he was seeking to enforce existing contractual terms. Id. In Carolina Freight Carriers, 295 NLRB 1080, 1080 fn. 1, 1083 (1989), the Board adopted the administrative law judge’s dismissal of an allegation that an employee was unlaw- fully terminated for asserting a contractual right. The judge found, among other things, that the employee’s complaint, that the processing of his job application was deliberately delayed to avoid paying him holiday pay, was not protected because the employee either knew he had no contractual right to a more expeditious processing or any belief in that regard was “too unreasonable” to implicate City Disposal. And, in K-Mart Corp, 341 NLRB 702, 703 fn. 6 (2004), the Board rejected the General Counsel’s contention that the Interboro doctrine applied to an employee’s protest of a work rule where there was no collective-bargaining agreement in place, let alone an attempt to invoke a right from a collective- bargaining agreement. Plainly, none of these cases sup- port a finding here that Hopkins’ claim of rights under the MA was unprotected under City Disposal and the Interboro doctrine. Finally, we find no force in the dissent’s contention that Hopkins sought to modify the LMA in a manner contrary to Section 8(d). Any reasonable interpretation of the facts reveals that Hopkins was not trying to modify the LMA. Rather, as explained above, Hopkins sought to enforce the terms of the MA, the contract he believed was applicable because it reflected the wages he re- ceived, the scope of work he performed, and the assur- ances he received from his employer upon his hire. In these circumstances, where Hopkins acted upon a rea- sonable belief that the parties mistakenly executed the wrong contract, there is no basis to construe his actions as an attempt to modify the LMA. Accordingly, for all these reasons, we adopt the judge’s finding, that Omni violated Section 8(a)(1) by discharging Hopkins. reasonable belief that the MA was, in fact, the contract that covered his employment with Omni. ORDER The National Labor Relations Board orders that A. The Respondent, Omni Commercial Lighting, Inc., Elgin, Illinois, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against its employees because of their protected concerted activities. (b) In any like or related manner, interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Anthony Hopkins full reinstatement to his former position or, if that position no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. (b) Make Anthony Hopkins whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge’s decision, as amended here- in. (c) Compensate Anthony Hopkins for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 13, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allo- cating the backpay award to the appropriate calendar years. (d) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charge of Anthony Hopkins, and within 3 days thereafter notify Anthony Hopkins in writing that this has been done and that the discharge will not be used against him in any way. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director for Region 13 may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records, includ- ing an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility in Elgin, Illinois, copies of the attached notice marked “Appendix A.”8 Copies of the notice, on forms 8 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 Judg- 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 18, 2014. (g) Within 21 days after service by the Region, file with the Regional Director for Region 13 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. B. The Respondent, International Brotherhood of Electrical Workers Local 134, Chicago, Illinois, its offic- ers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to carry out its duty to fairly represent members and employees in the processing of their grievances. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its Chicago, Illinois office, copies of the attached notice marked “Appendix B.”9 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to members and employees are customarily posted. In additional to physical posting of paper notices, notices shall be distributed electronically, ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 9 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent custom- arily communicates with its members by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (b) Within 14 days after service by the Region, deliver to the Regional Director for Region 13 signed copies of the notice in sufficient number for posting by the Em- ployer at its Elgin, Illinois facility, if it wishes, in all places where notices to employees are customarily post- ed. (c) Within 21 days after service by the Region, file with the Regional Director for Region 13 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. MEMBER MISCIMARRA, dissenting. In relevant part, Section 7 of the National Labor Rela- tions Act (NLRA or the Act) gives employees the right “to self-organization, to form, join, or assist labor organ- izations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or oth- er mutual aid or protection” (emphasis added). Thus, for employees to enjoy the protection of the Act under the language of Section 7 italicized above, two elements must be satisfied: the activity they engage in must be “concerted,” and it must be engaged in “for the purpose of collective bargaining or other mutual aid or protec- tion.”1 To determine whether an activity is concerted, the Board applies the standards set forth in its decisions in Meyers Industries.2 Under these standards, activity is usually deemed concerted only if engaged in by two or more employees.3 However, actions of a single employ- ee may sometimes constitute “concerted activity,” pro- vided they are sufficiently linked in some way to group action.4 The Board and the courts have held that one 1 For a more complete discussion of these Sec. 7 requirements, see Fresh & Easy Neighborhood Market, 361 NLRB 151, 163 (2014) (Member Miscimarra, concurring in part and dissenting in part). 2 Meyers Industries, 268 NLRB 493 (1984) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), on remand Meyers Industries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). 3 “In general, to find an employee’s activity to be ‘concerted,’ we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Meyers I, 268 NLRB at 497. 4 For example, an individual employee engages in concerted activity when he or she seeks “to initiate or to induce or to prepare for group action” or brings “group complaints to the attention of management.” Meyers II, 281 NLRB at 887. OMNI COMMERCIAL LIGHTING, INC. 617 such circumstance is when an employee invokes “a right grounded in his collective-bargaining agreement.” NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 832 (1984). Thus, under the Board’s longstanding Interboro5 doc- trine, approved by the Supreme Court in NLRB v. City Disposal, an employee who invokes a right grounded in his or her collective-bargaining agreement (CBA) is en- gaged in concerted activity, provided that the invocation of that collectively bargained right is “honest and reason- able.”6 In this case, I believe the judge and my colleagues have fundamentally misapplied the Interboro doctrine. Charging Party Anthony Hopkins was discharged. There is no dispute that Hopkins was discharged for protesting the fact that Omni Commercial Lighting (Omni or the Employer) and IBEW Local 134 (the Union) had entered into what Hopkins believed was the wrong CBA. There is also no dispute that in voicing his protest, Hopkins acted alone. Nonetheless, the judge and my colleagues find—I believe improperly—that Hopkins’ solitary pro- test constituted “concerted activity” under the Interboro doctrine. In this regard, the judge and my colleagues fail to recognize that Hopkins never invoked “a right provid- ed for in his collective-bargaining agreement.” City Dis- posal, 465 U.S. at 841 (emphasis added). To the contra- ry, Hopkins, knowing that he was covered by one CBA, urged Omni to execute a different CBA and pay him the higher wages and benefits set forth in that different agreement. This is not “concerted activity” within the scope of the Interboro doctrine. Accordingly, I believe the Board cannot properly find that Hopkins engaged in protected Section 7 activity, which means the record fails to support a conclusion that Omni violated Section 8(a)(1), which only renders unlawful an employer’s ac- tions that interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Accordingly, I re- spectfully dissent.7 5 Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). 6 City Disposal, 465 U.S. at 840 (“The rationale of the Interboro doctrine compels the conclusion that an honest and reasonable invoca- tion of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated.”). 7 In addition to finding that Hopkins’ activity was concerted, the judge also found it was protected, i.e., engaged in for the purpose of mutual aid or protection. As stated above, both elements must be met for the Act’s protection to apply. Because I believe that Hopkins did not engage in concerted activity, I need not reach whether Hopkins’ activity had as its purpose mutual aid or protection. However, if I were to reach that issue, I would find that Hopkins acted for himself alone and therefore his activity was not for the purpose of mutual aid or pro- tection. For a fuller discussion of the meaning and scope of Sec. 7’s “mutual aid or protection” element, see Fresh & Easy Neighborhood Facts Hopkins is a class B maintenance electrician. The Un- ion is party to three different types of CBAs covering class B maintenance electricians: the “Maintenance Agreement” (MA), the “Sign Agreement” (SA), and the “Lighting Maintenance Agreement” (LMA).8 Of the three, the MA provides the highest wages and best bene- fits and covers the broadest scope of work, and the LMA the lowest wages and poorest benefits and covers the narrowest scope of work. Hopkins had always worked for employers that had signed the MA. At the time Hop- kins applied for employment with Omni, “B” mainte- nance electricians covered by the MA earned $32.50 an hour. Hopkins was interviewed by Christina Chwala, the Employer’s owner. Chwala asked Hopkins what salary he desired and which contract he worked under. Hopkins answered that he wanted $32.50 and the MA. Chwala said the Employer “would be fine with the [MA],” and Hopkins was hired in August 2013 at $32.50 an hour. At the time Omni hired Hopkins, it was not party to any CBA with the Union, MA or otherwise.9 Omni and the Union entered into a CBA in December 2013—but it was the LMA, not the MA. Hopkins learned that a CBA had been executed, but he did not know that it was the LMA, and circumstances would not have alerted him to that fact. His wage rate remained at $32.50 an hour—the MA wage rate—and any reduction in benefits was not reflected in his pay stubs or any statements he received. In June 2014, Hopkins learned that a new MA effec- tive June 1 had been ratified that included a wage in- crease. Hopkins asked William T. Milbourn, the Em- ployer’s general manager, why he had not received his raise. Milbourn checked with Chwala and, on June 12, informed Hopkins that he was working under the LMA and was already receiving a higher wage than required under that agreement. Upset at this turn of events, Hop- kins questioned the Employer and Union why he was working under the LMA and not the MA. He maintained that the parties had signed the wrong contract. Matters culminated in a conversation between Hopkins and Mil- Market, supra, 361 NLRB 151, at 167–169 (Member Miscimarra, con- curring in part and dissenting in part). As noted by my colleagues, no party filed exceptions to the judge’s finding that the Union breached its duty of fair representation to Hop- kins in violation of Sec. 8(b)(1)(A) by failing to file a grievance over Hopkins’ termination. Because I would find that Omni did not violate the Act, I do not reach an issue my colleagues address, i.e., whether Omni and the Union should share backpay liability. I would remedy the Union’s 8(b)(1)(A) violation in the manner set forth in Iron Work- ers Local 377 (Alamillo Steel Corp.), 326 NLRB 375 (1998). 8 These are area-wide agreements that the Union bargains with mul- tiemployer associations. Individual employers, such as Omni, sign on to these agreements on a “me-too” basis. 9 Hopkins was Omni’s only employee represented by the Union. 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bourn on June 18. Milbourn told Hopkins the Union had confirmed that the work Hopkins was performing could be performed under the LMA. Hopkins replied that the work he was performing for Omni was outside the LMA’s scope and he was entitled to the wages and bene- fits under the MA. Hopkins suggested to Milbourn that the two of them discuss the matter with Paul Johnson, the Union’s business representative. Milbourn responded that Chwala would not change contracts and added, “If you want to find another job, you can.” Before Hopkins responded, Milbourn said, “You know what, you’re fired. Give me your phone.” Discussion The legal issue that must be decided here is whether Omni violated the Act when it discharged Hopkins based on his insistence that he should be covered by a different agreement—the MA—rather than the agreement that Hopkins knew Omni and the Union had entered into, the LMA. It is impossible not to sympathize with Hopkins’ situation, given his good-faith belief—until he learned the truth on June 12, 2014—that Omni and the Union had entered into the MA. However, the Board is duty- bound to apply the statute that Congress gave us, and “[t]he Board was not intended to be a forum in which to rectify all the injustices in the workplace.” Meyers II, 281 NLRB at 888. It is uncontroverted that the agreement applicable to Hopkins—the LMA—did not even colorably confer up- on Hopkins the right to be covered by a different agree- ment or to receive wages and benefits provided under a different agreement. Similarly, although Hopkins claimed that some of the work he was performing was beyond the scope of the LMA, there is no allegation or evidence that Hopkins invoked or sought to enforce his rights under the LMA. Nor is there any evidence that Hopkins refused to perform work based on a belief that it was outside the LMA’s scope or that Hopkins’ discharge was related to such a refusal. Indeed, rather than reason- ably and honestly invoking a right grounded in the appli- cable agreement—the LMA—Hopkins did precisely the opposite: he spurned any rights afforded by the LMA and contended that the rights arising under a different contract (the MA, to which the Employer and Union were not signatory) should govern his employment. The Interboro doctrine simply does not apply to these facts. See, e.g., Newark Morning Ledger, 316 NLRB 1268, 1271 (1995) (finding an employee’s activity was not concerted under the Interboro doctrine where employee “was acting with the intent of unilaterally changing the terms of the agreement”); Carolina Freight Carriers Corp., 295 NLRB 1080, 1083 (1989) (finding an em- ployee’s activity was not concerted under the Interboro doctrine where the employee complained about delays in the employer’s processing of holiday pay even though he could not have reasonably believed that the employer’s actions contravened the CBA); cf. K-Mart Corp., 341 NLRB 702, 703 fn. 6 (2004) (“In the absence, as here, of a collective-bargaining agreement, the Interboro doctrine is inapplicable.”) The Board in Meyers II stated: “It is protection for joint employee action that lies at the heart of the Act,” and the Board must distinguish “between an employee’s activities engaged in ‘with or on the authority of other employees’ (concerted) and an employee’s activities en- gaged in ‘solely by and on behalf of the employee him- self’ (not concerted).” 281 NLRB at 883, 885 (quoting Meyers I, 268 NLRB at 497). Under the Interboro doc- trine, when an employee acts to enforce a collectively bargained right, the employee may be acting alone in that moment, but his or her actions are considered an exten- sion of the concerted activities that produced the agree- ment. Such activity is materially different from the acts of a single individual who, like Hopkins, does not invoke or rely on any collectively bargained right grounded in his or her CBA. As the Supreme Court explained in its decision approving the Interboro doctrine: The invocation of a right rooted in a collective- bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. That pro- cess—beginning with the organization of a union, con- tinuing into the negotiation of a collective-bargaining agreement, and extending through the enforcement of the agreement—is a single, collective activity. Obvi- ously, an employee could not invoke a right grounded in a collective-bargaining agreement were it not for the prior negotiating activities of his fellow employees. Nor would it make sense for a union to negotiate a col- lective-bargaining agreement if individual employees could not invoke the rights thereby created against their employer. Moreover, when an employee invokes a right grounded in the collective-bargaining agreement, 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 invocation of a right grounded in his collective-bargaining agreement is, therefore, a concerted activity in a very real sense. City Disposal, 465 U.S. at 831–832 (footnote omitted). Here, Hopkins was not invoking his collective-bargaining agreement and the concerted activity behind it. Instead, he was engaging in individual action to improve his, and only OMNI COMMERCIAL LIGHTING, INC. 619 his, wages and benefits. There is no tie-in here to “joint employee action.” Meyers II, supra.10 To the extent that Hopkins sought to persuade Omni to modify or replace the LMA, his actions were unprotected for another reason. Under Section 8(d) of the Act, a CBA can be modified or superseded only if the parties to the agreement—the employer and union—mutually agree to do so.11 Because Omni was party to the LMA— which unquestionably was in effect throughout the peri- od relevant in this case—Omni was entitled to rely on that agreement during its term. Indeed, if Hopkins de- sired to pursue a grievance with Omni that a different agreement covered his employment, the Act would not protect Hopkins’ efforts to seek such an adjustment be- cause Section 9(a) requires that grievance adjustments “not [be] inconsistent with the terms of a collective- 10 My colleagues reason that the Interboro doctrine applies because Hopkins was “invoking the terms of the agreement he reasonably and honestly believed applied to him.” Hopkins knew at the time of his protestations, however, that the LMA, not the MA, was the agreement that Omni and the Union had entered into. As explained above, the Interboro doctrine only applies if Hopkins asserted rights he reasonably and honestly believed were “grounded in his collective-bargaining agreement,” the LMA. City Disposal, supra (emphasis added). Only then would his individual action have been an extension of the collec- tive action that brought his agreement into existence and have “[brought] to bear on his employer the power and resolve of all his fellow employees.” Id. Even if Hopkins reasonably and honestly be- lieved that he should have been covered by a different CBA, his indi- vidual complaint to that effect was simply not concerted activity under the Interboro doctrine. My colleagues cite no authority for the proposition that the Interboro doctrine applies when an employee invokes rights in someone else’s collective-bargaining agreement, based on a reasonable and honest belief that he should be covered by that agreement and not by the agreement that actually applies to him. In support of their position, they cite K-Mechanical Services, Inc., 299 NLRB 114 (1990), and Yellow Transportation, Inc., 343 NLRB 43 (2004). In K-Mechanical Services, the Interboro doctrine was held applicable when the employee incorrectly but honestly and reasonably believed he had a right under his agreement to preferential weekend overtime work. 299 NLRB at 118. In Yellow Transportation, the Interboro doctrine was held appli- cable when the employee incorrectly but honestly and reasonably be- lieved that the employer had violated the contract that applied to him by not converting him from a casual to a regular employee. 343 NLRB at 47. In both cases, the employee was asserting rights he mistakenly but reasonably and honestly believed he had under his agreement. In contrast, Hopkins did not honestly or reasonably believe that his agreement, the LMA, entitled him to the terms and conditions of em- ployment provided under a different agreement, the MA. 11 Absent a reopener clause, neither party is obligated under the Act to even discuss modifications to the agreement, and neither party can exert economic pressure in support of modification proposals. See C & S Industries, Inc., 158 NLRB 454, 457 (1966) (“[A] bargain having already been struck for the contract period and reduced to writing, neither party is required under the statute to bargain anew about the matters the contract has settled for its duration.”); see also NLRB v. Lion Oil Co., 352 U.S. 282 (1957). bargaining contract or agreement then in effect.”12 In short, Hopkins did not have a protected right—under either our statute or the LMA—to insist that Omni repu- diate the LMA in favor of a different agreement, and Section 8(d) clearly indicates that such a repudiation would be permissible only if Omni and the Union mutu- ally consented to it.13 For these reasons, I respectfully dissent. APPENDIX A 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge or otherwise discriminate against you because of your protected concerted activi- ties. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Anthony Hopkins full reinstatement to his former position or, if that position no longer exists, to a substantially similar equivalent position, without preju- 12 NLRA Sec. 9(a) states: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employ- ees in a unit appropriate for such purposes, shall be the exclusive repre- sentatives of all the employees in such unit for the purposes of collec- tive bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances ad- justed, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective- bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.” 13 See, e.g., Waddell Engineering Co., 305 NLRB 279, 281–282 (1991) (unlawful direct dealing where the employer, without the un- ion’s involvement or agreement, convinced all but one employee to accept a change to the health-insurance carrier provided for in the exist- ing CBA). 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dice to his seniority or any other rights or privileges pre- viously enjoyed. WE WILL make Anthony Hopkins whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, less any net interim earnings, plus interest. WE WILL compensate Anthony Hopkins for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Di- rector for Region 13, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar years. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Anthony Hopkins, and WE WILL, within 3 days thereafter, notify Anthony Hopkins in writing that this has been done and that the discharge will not be used against him in any way. OMNI COMMERCIAL LIGHTING, INC. The Board’s decision can be found at https://www.nlrb.gov/case/13-CA-134425 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washing- ton, D.C. 20570, or by calling (202) 273-1940. APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to carry out our duty to fairly represent you in the processing of your grievances. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS LOCAL 134 The Board’s decision can be found at https://www.nlrb.gov/case/13-CA-134425 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washing- ton, D.C. 20570, or by calling (202) 273-1940. Christina Hill, Esq., for the General Counsel. Scott A. Gore, Esq., for the Respondent. Nicholas E. Kramer, Esq., for the Union. DECISION STATEMENT OF THE CASE DONNA N. DAWSON, Administrative Law Judge. This case was tried in Chicago, Illinois, on December 3–4, 2014. The Charging Party, Anthony A. Hopkins (Hopkins)1 filed a charge against Respondent Omni Commercial Lighting, Inc. (Omni) on August 11, 2014 (Case No. 13–CA–134425). On August 21, 2014, Hopkins filed a charge against Respondent Interna- tional Brotherhood of Electrical Workers Local 134 (the Un- ion/Local 134) (Case No. 13–CB–135163). On October 20, 2014, the Region issued an order consolidating cases, consoli- dated complaint, and notice of hearing (the complaint). The complaint alleges that Omni violated Section 8(a) (1) and (3) of the National Labor Relations Act (the Act) when it discharged Hopkins because he asserted terms and conditions of his em- ployment under a collective-bargaining agreement. It also al- leges that the Union violated Section 8(b)(1)(A) of the Act because it unlawfully failed to process a grievance concerning Hopkins’ discharge. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Omni, and the Union, I make the fol- lowing 1 Charging Party Hopkins is also referred to throughout witness tes- timony as “Tony.” OMNI COMMERCIAL LIGHTING, INC. 621 FINDINGS OF FACT I. JURISDICTION Omni is a corporation with an office and place of business in Elgin, Illinois, and provides commercial lighting services to customers in the retail, commercial, and industrial industries. Omni admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is further admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. As admitted, I find that at all material times, Christina Chwa- la (Chwala), Omni’s owner, and William T. Milbourn (Mil- bourn), Omni’s general manager, have been supervisors of Omni within the meaning of Section 2(11) of the Act and agents within the meaning of Section 2(13) of the Act. Similar- ly, it is admitted, and I find, that at all material times, Paul Johnson (Johnson), the Union’s business representative, is the Union’s agent within the meaning of Section 2(13) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Respondents Omni and IBEW Local 134 Since 2000, Omni has provided commercial lighting services to its customers. These services mostly include maintenance of commercial light bulb fixtures on poles in parking lots of shop- ping centers or malls using a cherry picker or bucket truck, repairing and replacing bad electrical parts inside light fixtures and underground wiring between two light poles; and some- times putting up, taking down, and replacing light poles. When Chwala started Omni, she took over a signage business and/or its employees, and Omni was signatory to a “B” sign agreement (SA) with the IBEW Local 134. The Union offers three types of collective-bargaining agree- ments to companies under which “B” maintenance electricians can work. One is the SA, which typically covers electricians who install, service, and maintain light fixtures affixed to commercial signage as one might see at a fast food restaurant or bank. The other two types are the “B” maintenance agreement (MA) and the “B” lighting maintenance agreement (LMA), and they are central to the dispute in this case. The MA covers the broadest range or scope of interior and exterior work, including but not limited to, maintenance, repair, replacement and care of “all electrical wiring, electrical appliances, and electrical equipment of any nature.” This involves work related to refrig- eration systems, escalators, conveyors, private telephone sys- tems, air conditioning systems, and other systems in post- construction facilities. This agreement actually refers to “B maintenance electricians.” (GC Exh. 19.)2 The LMA is more limited in its scope, and covers work related to the maintenance and care of interior or exterior commercial lighting fixtures, 2 Abbreviations used in this decision are as follows: “Tr.” For Tran- script; “GC Exh.” for General Counsel Exhibit; “R. Exh.” for Respond- ent Omni Exhibit; “U. Exh.” for Respondent Union Exhibit; “GC Br.” for General Counsel’s brief; “R. Br.” for Respondent Omni’s brief; and “U. Br.” for Respondent Union’s brief. with some emphasis on green technology retrofitting. The LMA refers to its “B” members as lighting technicians who “[i]nstall magnetic or electronic replacement ballasts . . . in- cluding wiring within the fixture; . . . replacement lamp holders and/or sockets including necessary wiring within a fixture in- cluding relocating sockets within a fixture;” and “[i]nstall re- placement lighting circuit breakers when necessary.” The LMA excludes, however, “reconfiguring of the existing lighting grid” and “alteration or reconfiguring to the existing circuits.” (GC Exhs. 10 and 17, Attachment B; U. Exh. 2.) In order of wage rates and some benefits (employer health and welfare, annuity, and pension contributions), the MA has the highest tier of wages and benefits most favorable to employees; the SA has the second highest tier, and the LMA has the third or lowest tier of wage rates and benefits. (Tr. 197.) Each of these types of agreements has an area-wide version that has been negotiated by the Union and employer/contractor groups or their associations. These area-wide agreements (and some major standalone agreements) are ratified by applicable Local 134 members (e.g., “B” electricians ratify “B” agree- ments). However, other (nonarea wide) companies/contractors, such as Omni, may enter into one of these area-wide agree- ments by signing a standalone agreement with a union business representative, such as Johnson, without the need for ratifica- tion by the members. Initially, the Union only represented one Omni employee, Mike Pytel (Pytel), under a SA with Omni, until sometime in 2009, when he was transferred to an “A” agreement, described as that covering “A” wiring electricians, on advice by the Un- ion. As described below, Omni’s SA subsequently expired, and Omni ultimately entered into a LMA with the Union. Omni’s other electrician, Alan Wagner (Wagner), worked under a con- tract with another IBEW local–Local 174 to perform exterior signage and lighting maintenance work. (Tr. 117.) There is no evidence, however, that Pytel’s work changed after he transi- tioned to an “A” agreement. (Tr. 134–136, 153–155.) 2. Wage and Benefits under the LMA and the MA. Effective from July 1 through December 31, 2013, the wage rate per hour under the LMA was $26.36. From January 1 through June 30, 2014, the wage rate increased to $27.67 an hour. (GC Exhs. 17, Attachment D, and 7.) In comparison, the wage under the MA from at least July 2013 through June 1, 2014, was $32.50. (GC Exhs. 6, 19.) This wage rate increased to $33.50 under a newly ratified MA effective on June 2, 2014. There is no dispute that the fringe benefits under the MA, in- cluding the various pension and annuity plan contributions were about $4 an hour greater than those under the LMA. 3. Charging Party Hopkins is hired by Omni and believes he is working under a MA. On about August 14, 2013, Omni hired Charging Party Hop- kins as a maintenance electrician. Omni employee Wagner, who had worked with him in the past, recommended him to replace Pytel, who was set to retire at the end of August. (GC Exhs. 2, 20.) Hopkins shadowed Pytel before he retired on August 31. When he applied and interviewed for the job with Omni, Hopkins worked for Nucore Electric (Nucore), where he had 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been employed since about 2010. He worked there as a “B” maintenance electrician and union card holder under the MA. In fact, he had worked in the same position under a MA since becoming a journeyman maintenance electrician while working for another electrical lighting company, Magun Electric (Ma- gun), in about 2006. Hopkins assumed that Omni, like Nucore, maintained a MA with the Union, and that he would be work- ing under it. His assumption was based on Chwala’s agreement to pay him the same wage rate that he made at Nucore under a MA, and on his Local 134 history and membership as a “B” maintenance mechanic under a MA. During his interview, Hopkins was asked what salary he desired and which contract he worked under. He told Chwala that he wanted the $32.50 wage rate and the maintenance agreement (i.e., the MA) he worked under at Nucore. Chwala agreed, stating that “it would be fine with the maintenance agreement.” (Tr. 33–34.)3 Hop- kins also indicated on his application, submitted after his inter- view, that his desired salary was “134 contract $32.50,” and explained that this was based on the pay scale for the “B” maintenance contract discussed in the interview. (Tr. 36; GC Exhs. 2, 20.) Subsequently, he also assumed that Omni maintained a MA with the Union because his work there was similar to the work he performed at Nucore. He admitted that at Omni he worked mostly on outdoor light fixtures and that at Nucore, he per- formed both indoor and outdoor lighting maintenance, but there is no dispute that at both companies, Hopkins maintained and repaired light fixtures. (Tr. 81–82.) Within 2 weeks after Hopkins began working at Omni, the Union’s business representative, Paul Johnson (Johnson), called Hopkins to tell him that Omni did not have a current collective- bargaining agreement to cover him. Nevertheless, Johnson advised Hopkins to keep working while the Union negotiated a new contract with Omni. There is no evidence that Johnson mentioned in this initial conversation with Hopkins the type of agreement that Omni might sign.4 Shortly after November 8, 2013, Hopkins received a letter from the EIT benefits fund, informing him that his health and welfare benefits would terminate effective December 1, 2013. (GC Exh. 3; Tr. 40–41.) Hopkins contacted Johnson, who told him that he did not have coverage because Omni had not yet signed a contract or secured the bond necessary to implement one. (Tr. 40–41.) After his benefits expired on December 1, Chwala offered to pay for Hopkins’ interim health expenses. (GC Exh. 4.) Hopkins also recalled her mentioning that the Union had sent over the “wrong contract,” and that she had to renegotiate and wait for an old bond to expire before obtaining 3 I credit Hopkins’ testimony regarding what he was told during his interview. Although Chwala claimed that she did not “directly inter- view” Hopkins, she admitted that she was present “at times” during his interview, and agreed to pay him the same wage rate that he was mak- ing at Nucore. She neither admitted nor denied saying that “it would be fine with the agreement,” and her general manager, Milbourn, did not mention what was specifically said during the interview or that Chwala was not present during parts of the interview. (Tr. 150.) 4 At all material times in this case, all contact between Hopkins and Johnson or other union representatives was either by telephone, email, or letter mail. a new one.5 Next, Hopkins asked Johnson why his MA had not been signed, Johnson responded that he “[knew] what agree- ment goes in place.” (Tr. 44.) In about mid-December 2013, Hopkin’s health insurance was reinstated, and Chwala told him that Omni and the Union had finally executed a valid contract. (Tr. 140–141; GC Exhs. 5, 10; U. Exh. 2.) Unbeknownst to him, Omni had become signatory to the LMA, and not the MA. He admitted that he never asked to see the agreement or asked what type of agree- ment was signed because he believed, for much the same rea- sons discussed above in connection with his hiring, that Omni and the Union would sign and had signed a MA such as he worked under at Nucore. His pay rate remained the same, and any resulting reductions in benefit contributions, which might have alerted him to a change in his wage and benefits package from what he received under the MA, were not reflected in any pay stubs or statements he received. (GC Exh. 20.) In fact, Hopkins did not discover that Omni and the Union had entered into the LMA until June 2014. Chwala, Milbourn, and Johnson claimed that Hopkins knew that Omni and the Union would be signing the LMA as early as late August/early September 2013, and had reviewed it and agreed with them that it was the best contract option for Omni. They also maintained that during that time, Johnson explained to Hopkins the details of the wage rates, benefits, and scope of work under the LMA versus the MA. According to Johnson, Hopkins was “fine” with the terms of the LMA as long as he continued to receive $32.50 an hour. Hopkins denied being shown any collective-bargaining agreements, or being included in any discussions about them or the LMA, at any time in 2013. For the reasons discussed below, I fully credit Hopkins’ testi- mony over that of Chwala, Milbourn, and Johnson regarding his honest belief that he had been working under the MA.6 The evidence shows that in late August or early September, Chwala and other Omni representatives began to discuss with Johnson the type of maintenance agreement that would best suit Omni. Johnson recommended that the LMA was more appro- priate. However, the correspondence between Chwala and the Union belies their assertions that Johnson sent Chwala copies of the LMA and the MA, which she in turn shared with Hop- kins. Johnson sent Chwala a letter dated September 20, 2013, with three enclosed copies of the “Maintenance and Lighting Maintenance agreement between [Omni] and Local 134.” 5 Chwala denies telling Hopkins that she had the “wrong contract,” but admits that she had to wait for a bond associated with her former agreement to expire before obtaining a new bond and executing a new contract. 6 Chwala’s testimony was vague, evasive at times, and inconsistent with other evidence, including some of her own testimony. When asked if Hopkins provided any feedback or opinion about the agree- ments, she hesitated, and then responded that, “I assume he did. I don’t know . . .” When asked again if Hopkins gave his opinion, she said, “No, not that I recall.” (Tr. 138–141.) When asked by the General Counsel on cross if she told Hopkins about the new agreement, she said that she was “aware of discussing or letting everybody know which agreement we had because we had been in negotiations for so long. I didn’t keep it a secret.” Even then, she was unable to say that she spe- cifically told Hopkins that she had signed the LMA. (Tr. 162–163.) Similarly, I discredit Johnson and Milbourn’s testimony in this regard. OMNI COMMERCIAL LIGHTING, INC. 623 However, a close read of this letter, along with an earlier email from Chwala, reveals that Johnson only referenced and attached three copies of one agreement, and asked Chwala to send back two signed copies to the Union’s contract department, and to keep a third copy for her files. He also advised that a “fully executed copy” would be sent to her once all parties signed it.7 (GC Exh. 21.) In the email sent by Chwala to the Union two days earlier, entitled “Agreement and bonds,” she referenced a telephone call with Johnson on September 17, during which she agreed to sign “the Lighting/Retro agreement instead of the sign agreement.” 8 She also asked that a copy of the LMA be emailed to her for her review. No mention was made of the MA. Contrary to her testimony, this email shows that as of September 18, Chwala had already decided which contract to sign before she even saw a copy of the LMA, much less a copy of the MA. It is therefore unbelievable that she showed any agreements to Hopkins or sought his advice on them.9 (U. Exh. 1; GC Exh. 17, Attachment C.) It is also implausible that Hopkins would have been “fine” with an agreement that likely would have precluded (future) significant raises above what he was making, and decreased his employer’s annuity and pension contributions by almost $4 an hour. In comparison, Hopkins’ testimony was fairly straight for- ward and mostly consistent throughout. Therefore, I credit his testimony. 4. Hopkins finally discovers that the Union and Omni executed an LMA (and not a MA). In May 2014, the Union, through its Business Manager, Ter- ry Allen, sent Hopkins a letter stating that Local 134 and the Electrical Contractors Association (NECA) had negotiated the new MA, to become effective from June 1, 2014, through May 31, 2017. It recommended ratification of the agreement, with an attached business reply card by which Hopkins could indi- cate his acceptance or rejection of the new contract. The Un- ion’s letter also described how the MA’s new wage and bene- fits package would increase by $4.68 over the life of the con- tract, and that on June 1, there would be a $1.44 increase in the first year, with $1 going to wages, and the rest going to health and welfare benefits. (GC Exh. 6.) Hopkins ratified the new MA. According to the Union, Hopkins and all other “B” 7 Neither Omni nor the Union was able to provide the exact date on which they signed/fully executed the final LMA in December 2013, or produce a copy of it. Johnson, who was hesitant and evasive at first, finally (and reluctantly) admitted that there was one back in his office. The Union, did not, however, produce this copy in response to the General Counsel’s subpoena. 8 I also note that contrary to testimony, evidence shows that Chwala and the Union first signed a LMA much earlier than December 2013. (Tr. 148–150.) The Union’s position statement presented to the Board reveals that the LMA was fully executed in September 2013, but was backdated to August 2013 “to reflect the period that Omni . . . hired Mr. Hopkins and began performing work under the contract.” (See GC Exh. 17, p. 2 and Attachment C, pp. 17–18.) 9 Milbourn’s testimony was also inconsistent. He claimed that he did not discuss the LMA with Hopkins until June 2014, but then back- tracked, and said that he “[p]eripherally” talked to Hopkins about the LMA in 2013. (Tr. 168–170.) maintenance electricians received this letter and vote card as card-holding “B” maintenance electricians—regardless of what contract their employers had signed. However, the receipt of this letter and opportunity to vote further bolstered Hopkins’ belief that he was working at Omni under a MA, and would receive a raise pursuant to that contract. Shortly after June 1, Hopkins learned that his brother, another Local 134 member with another employer, had received his $1-per-hour wage increase under the new MA. Hopkins did not receive one. B. Hopkins’ Termination 1. Events leading to termination. On about June 9 or 10, Hopkins began to ask Milbourn why he had not yet received his $1 wage increase under the new MA. Milbourn in turn spoke to Chwala, and on about June 12, related her response that under the existing LMA between Om- ni and the Union, he (Hopkins) was already receiving a higher wage rate than required under LMA. At the same time, Mil- bourn gave Hopkins a copy of a one-page summary of the LMA wage rate and benefits package effective at the time— from January 1, 2014, through December 31, 2014.10 (GC Exh. 7; Tr. 48–52.) For reasons stated, I credit Hopkins’ assertion that this is when he discovered that Omni and the Union had signed the LMA instead of the MA. Next, Hopkins continued to question Omni management and union officials about how and why he was working under the LMA instead of the MA as expected. He insisted that Omni and the Union had signed the wrong contract and requested that the Union resolve the matter on his behalf. On June 12, Hop- kins called Johnson, who said that he would get back to him because he did not know what was in place.11 On the same day, he emailed the Union, via Johnson and Business Manager Al- len, telling them that the Union had signed a different agree- ment without notifying him. He claimed that the LMA was not the contract he should be working under, and asked them to respond in writing as to whether the benefits, pension, and an- nuities were the same under both contracts (the LMA and MA) since the wage rates were different. He also expressed his de- sire to work this out, but stated that he would not be “down- grading [his] card.” In another June 13 email, he told Johnson that he was “very upset that [he had] to be fighting for [his] own contract.” (GC Exh. 8.) Hopkins admitted that he never produced additional documentation, requested by Omni to sup- port his claim for higher wages and benefits, because he did not have any. Johnson called Hopkins on June 17 to explain that Omni was signatory to the LMA, under which the scope of work was “an- ything inside of a light fixture,” and that Hopkins was already making more than the LMA called for. Hopkins disagreed that the work he performed at Omni was limited to the light fixture 10 Milbourn did not recall giving Hopkins this document, but Chwala corroborated Hopkins’ testimony that he did. 11 I believe this was Johnson’s response since Johnson admitted that he received a multitude of calls and emails from his members every day, who apparently worked under different Local 134 contracts. 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD itself, and asked for a copy of the LMA.12 After this conversa- tion, Johnson sent Hopkins an email with an attached copy of the LMA, and its new wage and benefits package summary effective July 1, 2014, through December 31, 2014. (GC Exhs. 9–10.. Hopkins responded via email, with a copy to Don Finn, the Union’s business representative/Recording Secretary, that he believed that the Union and Johnson knew that he was a “B” maintenance electrician, and that a MA should have been put in place. Hopkins also asked for a copy of the MA so that he could compare the two contract packages. He also hoped and noted that Omni would “possibly pay the difference.” (GC Exh. 9.) Hopkins also sent a separate email to Finn later that day, asking for a copy of the MA. (GC Exh. 27.) 2. Hopkins’s termination on June 18. There is no dispute that at the end of the workday on June 18, Milbourn approached Hopkins to discuss Hopkins’ ques- tions and concerns about the LMA. Milbourn told him that Johnson had confirmed that he could perform the work under the LMA, and that he was making $4-per-hour less in annuity contributions than he made with Nucore under the MA. Hop- kins agreed that he was capable of performing work set forth in the LMA, but voiced his concern that the work he was doing at Omni was outside the scope of work set forth in the LMA. He told Johnson that he wanted the higher wages and benefits to which he believed he was entitled under the MA. Hopkins next suggested that he, Milbourn, and Johnson “talk about it,” but Milbourn insisted that Chwala would not change the contract, and told him that, “if you want to find another job, you can.” Before he could respond, Milbourn said, “[y]ou know what, you’re fired. Give me your phone.” He then told him to get his work tools out of his truck, which he did. That same afternoon, Hopkins emailed Chwala that he had talked to Milbourn after completing his service calls, and that he was not sure what “went wrong but [Milbourn] ended the conversation by telling me to go home and that I’m fired.” Hopkins said that [Milbourn] had not given him a reason for terminating him, and that he wanted to continue working for Omni. Chwala responded the next morning that “[r]egarding yesterday’s situation, I support Bill [Milbourn] in the decision he had to make. Your check will be delivered today via couri- er. Unfortunately, it seems the Company and you were not on the same page.” (GC Exh. 11.) She did not give any other reason for Hopkins’ termination. The next morning (June 19), Hopkins called Johnson and told him that he had been fired. Johnson told him to call him back at 2:30 p.m. because he wanted to make some calls. When he called back that afternoon, he had to leave a message. He did not hear back from Johnson that day. At about 11:44 a.m., on the same morning, Hopkins sent Johnson an email referencing his intent to call him back that afternoon per their conversation earlier that morning. He also wrote that he want- ed to file a grievance against Omni for letting him go without any warning, making him work outside the scope of the LMA, and for any benefits owed to him. (GC Exh. 12.) 12 I credit Hopkins’ testimony, over that of Johnson’s, regarding the substance of their telephone discussion on June 12, and his next tele- phone contact with Johnson on June 17. Milbourn, on the other hand, gave a very different account of what transpired on June 18. He testified that Hopkins became “very excited” when he learned that he made less in annuity contributions than he had at Nucore. He said that Hopkins began to yell and curse, accusing the “fucking union” and “fucking Christina” of “screwing [him]” and of lying and “cheating [him] out of money,” and insisted that he was not “going to work for less than [he] made before.” According to Milbourn, it was at this point, due to Hopkins’ behavior and comment that he would not work for less, that he said, “Okay. We’re done then,” and collected Hopkins’ keys, phone, and credit card. Milbourn contended that, “[i]t felt like he was ask- ing to quit honestly.” (Tr. 172–173). Milbourn also emailed and then talked to Johnson the next day (June 19). (GC Exh. 25.) During his telephone conversa- tion, Milbourn gave Johnson his “full rundown of exactly how it transpired,” referring to his encounter with Hopkins on June 18. Johnson then “reminded [him] that Mr. Hopkins might want to go on unemployment, so [they] wrote a letter to Mr. Johnson [on June 25] stating that he [Hopkins] was laid off so he could possibly get his unemployment.” (R. Exh. 2.) In his email account to Johnson at 10:24 a.m. on June 19, Milbourn stated that: Paul: I thought I should fill you in regarding Tony [Hop- kins]. Yesterday afternoon I took Tony aside and relayed to him (again) that we thought that he was under the correct agree- ment. I reminded him that you had informed him of that last August—and that we (Omni) had no reason to change any- thing. Tony became very excited and accused us and Local 134 of misleading and lying to him, regarding the 4.00 dis- crepancy in his annuity contributions. I told him (again) that his previous agreement with Nucore had no relevance with our current agreement with you. Unfortunately, he continued his rant—and I decided at that time to sever our relationship. His check is being couriered to him right now. Sorry for the news—and hope you don’t have further issues with him.” (GC Exh. 25.) On June 20, Chwala sent an email to Johnson thanking him “for help with this matter,” and attaching a detailed “account of the past few weeks with Anthony Hopkins” prepared by Mil- bourn and entitled “Chronology of Anthony Hopkins/Laid off June 19, 2014.” In his written rendition of events, Milbourn stated that Hopkins began coming to him on June 9 or 10 ask- ing for a $1 increase in his wages due him, as well as an extra $1 for ruining his clothes at work. On subsequent days, he complained that he was losing “thousands and thousands of dollars” because of the differences between the LMA and the MA he had at Nucore. He claimed that at about this time and after, he heard from other employees that Hopkins had been complaining to them that Omni and the Union were misleading and cheating him. (GC Exh. 26; Tr. 178.) He contended that by about June 13, Hopkins had become “very uncommunicative and seemed very moody and angry,” which was in contrast to OMNI COMMERCIAL LIGHTING, INC. 625 his former “informal and friendly” manner. Finally, Milbourn explained that: On Wednesday afternoon (18th) I took Tony aside and related that we had talked to Mr. Johnson- and that Omni and Mr. Johnson concurred that we had the correct agreement in place. Mr. Johnson recalled telling Tony explicitly (August 2013) what the parameters of his new agreement were. I also related to Tony that we had been informed that the annuity contribu- tion was 4.00 less than what he had at Nu-core…Tony be- came very agitated when this was related to him and began calling Paul Johnson a ‘f****** liar’ and that he and Omni had deceived him and tricked him into agreeing to the new contract. He also screamed that he would ‘sue Paul John- son.’…[and] that there was ‘no way that he would work for less than he had been receiving at Nu-core’…Tony continued his yelling and I cut him off at that point—and told him that his services were no longer required at Omni Lighting. (Id). Milbourn concluded that “[t]here had been no intent prior to this, to layoff Tony- so his final check was messen- gered to him the following morning . . . [a]t this time (June 19, 2014) Omni Lighting Inc. has opted to reduce its’ work force until further notice.” (Id.).13 I also resolve the factual dispute between Hopkins on the one hand, and Union and Omni officials on the other, regarding his termination in Hopkins’ favor. His testimony was more direct and consistent with the evidence as a whole than that of Mil- bourn, Chwala, Johnson, and Omni’s nonsupervisory witness (Wagner) (see below). In contrast, their testimony was evasive, contradictory, and largely self-serving. In Milbourn’s June 19 email to Johnson, he failed to mention Hopkins’ use of profanity, refusal to work for less money, or his belief that Hopkins had essentially resigned. (GC Exh. 25.) Not until his chronology sent by Cwhala on June 20 did he mention Hopkins’ alleged unsatisfactory or angry manner prior to June 18 or Hopkins’ use of profanity, screaming, and threat to sue Johnson. (GC Exh. 26.) He also failed to mention these incidents in the termination letter, dated June 25, that he sent to Johnson (see below). Similarly, Chwala did not mention these incidents or Hopkins’ progressively angry behavior in her email to Hopkins denying his request for reinstatement or in her tes- timony. Moreover, Milbourn never mentioned in his detailed account that Wagner was present and a witness to at least part of Hopkins’ alleged “rant” and refusal to continue working for less (discussed below). He could not recall if he had one or two conversations with Johnson, but believed it was an email and one conversation on June 19. (Tr. 175–176.) On cross- examination, Milbourn denied that he terminated Hopkins be- cause he questioned his contract, or because he believed Hop- kins accused him of lying and cheating, but on the other hand, admitted that Hopkins “made [him] angry when he said that he 13 When asked if he told Johnson, in his June 19 email that Hopkins would be laid off in order to receive unemployment benefits, Milbourn answered, “[n]o not at all. We laid him off because we were a little short of work at that point which was the case.” I do not credit Mil- bourn’s belated testimony that Hopkins was let go due to a work short- age. This is not evident in his June 19 email and his written statement sent to Johnson on June 20. (Tr. 173–174.) didn’t want to work for us if he wasn’t going to make the same money as before and we couldn’t change that.” (Tr. 179–180.) Milbourn’s June 25 notice of termination that he sent to the Union, but not Hopkins, stated: This letter is written to inform Local 134 of the decision by Omni Commercial Lighting Inc. to sever their relationship with Mr. Anthony Hopkins. Anthony is a B card 134 lighting electrician- and had been employed by Omni since August of 2013. On June 18th, 2014—Omni made the decision to reduce its’ workforce and Mr. Hopkins was notified that his employment was no longer needed. Mr. Hopkins did not seem to enjoy his employment with Omni and displayed a rather poor work ethic. (See GC Exh. 17, Attachment; R. Exh. 2.) There is no evidence that anyone at Omni told Hopkins on June 18, or at any other time, that a “reduction in the workforce” was the reason for his termination. Wagner, who worked at Omni with Hopkins, first testified that he was present for about the first 10 minutes of the discus- sion between Milbourn and Hopkins on June 18, and heard Hopkins say that “he would not work for less money, that who work[s] for less money.” He then said that he left Milbourn and Hopkins to go to another area in the facility which was about 20–30 feet away, and did not see or hear anything else said, except “voices [emphasis added] being very loud.” He admitted that there was no background noise, but also that he never heard Hopkins use any profanity with or directed toward Milbourn or anyone else. In fact, it was only when led by the Union’s counsel, did he testify that it was “mostly Mr. Hop- kins’ voice,” that was loud, and that Milbourn “was more, you know mellow tone, calm down.” (Tr. 117–123.)14 I doubt that Wagner was present with Hopkins and Milburn during any part of their conversation. Milbourn never mentioned Wagner’s presence during his conversation with or email to Johnson on June 19, his detailed account of events emailed to Johnson on June 20, or in the termination notice sent to the Union on June 25. Rather, he said that he “took Tony aside.” (GC Exh. 25.) Furthermore, if Wagner left Milbourn and Hopkins to go 20–30 feet away, allegedly close enough to distinguish Hopkins’ raised voice from Milbourn’s “calm” tone, I believe that he would have also heard Hopkins if he had screamed expletives as claimed by Milbourn. According to Johnson, Hopkins called him on June 18 to tell him that he was “being let go, that they took his keys, they took his truck and that he was being discharged from Omni Light- ing.” When asked further about what Hopkins specifically told him, he said Hopkins mentioned the “wrong contract,” and questioned “how could this happen to him.” These are the only 14 Wagner also related that Hopkins told him that Johnson “does nothing to help the union members,” and that he (Hopkins) “was not happy with Mr. Johnson or 134 in the whole.” He did not, however, specify when Hopkins shared these feelings with him. This testimony was not inconsistent with Hopkins’ testimony that he spoke to him about his situation after his discharge, and not on June 18. (Tr. 132.) 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD details that Johnson provided, which are fairly consistent with Hopkins’ testimony that he did not get a chance to go into de- tails with Johnson about his termination. Johnson also testified that he told Hopkins that, “it sounds like you’re being dis- charged for just cause,” and that he would contact Omni to see what happened, which is interesting given the fact that Hopkins had not given him any details and he had not yet talked to Mil- bourn. (Tr. 223.) Further, Johnson’s account of his first conversation with Milbourn after Hopkins’ discharge was not entirely consistent with Milbourn’s.15 He related Milbourn’s reasons for letting Hopkins go, and Milbourn’s claim that, “there was a lot of yell- ing and screaming that went on and that he was going to let him go for insubordination, just cause.”16 (Tr. 224–226.) However, he subsequently admitted that he was the one who told Mil- bourn that Omni had just cause for terminating Hopkins for insubordination, in addition to recommending that Omni lay off rather than terminate Hopkins so that Hopkins could receive unemployment benefits.17 It was not until he was later asked by Omni’s counsel what else he did to try to resolve the matter, that he suddenly recalled that he asked Milbourn if he would give Hopkins his job back. (Tr. 238.) I do not believe that Johnson, who so quickly insisted that Milbourn was justified for firing Johnson for insubordination, actually tried to get him to reinstate Hopkins. C. The Union Refuses to Pursue a Grievance on Hopkins’ Behalf. By letter to Local 134 dated June 20, Hopkins made another request that a grievance be filed against Omni for “wrongful termination.” He also added that after his termination, he was not given a paycheck until the next day, and pursuant to article VII, was not paid for “10 paid days of wage and benefits” owed by Omni. On June 24, Hopkins sent yet another email to John- son, with a copy to Finn, stating his belief that Omni owed him 10 day’s pay for letting him go without warning, and asking Johnson to “please get back to [him] with an update” on the grievance process. (See GC Exh. 12, p. 1.) Hopkins recalled that he wrote, “termination/layoff” in these letters because he believed it was the language used in article VII of the MA, and not because he knew at the time that he had in fact been let go due to a reduction in force. Although this MA section immedi- ately follows an article that discusses termination, it does not use the words, “termination/layoff.” Instead, it states that an employer must pay an employee “ten (10) days’ pay” who was 15 Johnson also insisted, as he did regarding Hopkins, that he talked to Milbourn numerous times between June 18 and 19. Milbourn re- called that he only spoke to Johnson about Hopkins’ discharge once or twice. 16 Johnson wavered considerably in his testimony regarding whether Milbourn discharged Hopkins on June 18 or was still deciding to do so on June 19, but Milbourn and Chwala made it clear that Hopkins was discharged on June 18. (Tr. 229–230; GC Exh. 11, p. 1.) 17 Hopkins admitted that he ultimately received unemployment bene- fits, but there is no evidence that he was told on June 18 or 19 that he was let go due to a reduction in force or layoff. In fact, I credit his testimony that he was not given a reason for his layoff other than what was in Chwala’s June 19 email. not given “at least ten (10) working days’” advance notice that he was to be “laid off.” (GC Exh. 19, MA article VII.)18 On July 1, Johnson, on behalf of the Union, finally respond- ed to Hopkins’ numerous emails. He advised him for the first time about Omni’s notice of termination due to layoff/reduction in force, and of his review of the LMA, which did not contain a provision that he would receive 10 days of pay. He finally advised that, “[t]his concludes this issue.”19 (GC Exh. 13, p. 1.) By letter (and email) dated July 9 or 10, Hopkins wrote to Allen regarding “Lack of Representation per Contract,” and informed him about the Union and Omni signing the LMA without his knowledge, his not receiving a reason or notice about impending layoffs, and working outside the scope of the contract. He felt the “unsupportive nature and lack of represen- tation for [him] as a member to be quite alarming,” as well as the Union’s failure to try to get him back to work. He also expressed concern that, “this is happening not only to me but potentially others as well.” (GC Exh. 14, pp. 1–2.) On July 30, Hopkins also sent a similar email to Lonnie R. Stephenson (Stephenson), international vice president of the IBEW Sixth District Office. He added that he wanted to handle the matter internally with the Union’s cooperation, but also asked that a grievance be filed against Local 134. (GC Exh. 14, p. 3.) On September 2, Hopkins sent the Union’s officials two more emails asking for an update and report on his grievance and documentation of Omni’s reduction in force. He also in- formed them that Omni had hired someone from Local 701 to replace him. (GC Exh. 15.) Finn finally replied on September 2, confirming that Johnson’s July 1 email had concluded the grievance process. He also informed Hopkins that the reason for his discharge was a reduction in force, and that, “per our agreement it is not something that a grievance can be submitted on.” (GC Exh. 15.) In stark contrast, Johnson testified on cross-examination that a reduction in force “was grievable . . . you can grieve a layoff if you need to.” (Tr. 245.) On September 3, Union attorney Karen Rioux (Rioux), re- confirmed the Union’s decision that a grievance would not be filed on his behalf. (GC Exh. 16.) She explained that, [Y]ou became engaged in an argument with Manager, Bill Milbourn, regarding your belief that you were entitled to a wage raise negotiated under a contract to which Omni is not signatory. Based upon statements that you made to Omni about not wanting to work for less than what you were making at Nucore and that you believed that Omni 18 In light of the many contradictions in Respondents’ witnesses’ tes- timony, this inconsistency does not diminish Hopkins’ overall credibil- ity. Hopkins’ use of “termination/layoff” in late June does not lead me to conclude that he believed that he had been laid off at the time, as opposed to terminated. Nor does it mean that Johnson, as he claimed, told him about the layoff, or any other reason, for his discharge prior to July 1. 19 Johnson testified that he did not include Hopkins’ insubordination and “aggressive” behavior in this email because he wanted to provide him with documentation he could use to obtain unemployment benefits. (Tr. 233–234.) Johnson also testified (and claimed) for the first time that Hopkins had gotten angry with and cursed at him during an un- specified conversation, in which both of them used profanity with each other. (Tr. 227, 250.) OMNI COMMERCIAL LIGHTING, INC. 627 and Local 134 were cheating you, Omni made the decision to release you from employment . . .While the company’s official reason for terminating you is listed as a ‘reduction in force’ Local 134 believes that was done so that you might be able to collect unemployment insurance . . . Fi- nally, all of the facts surrounding your termination and Local 134’s refusal to process a grievance on your behalf are currently under investigation by Region 13 of the Na- tional Labor Relations Board as a result of the unfair labor practices charges you have filed. Unless directed to do otherwise by the NLRB, Local 134 will not prosecute a grievance against Omni on your behalf based upon the facts stated above. (GC Exh. 16.)20 According to Johnson, his investigation, which resulted in his conclusion that Hopkins’ termination was justified, included his discussions with Hopkins and Milbourn, a review of Mil- bourn’s written statements, and Hopkins’ “aggressive behavior towards [him].” (Tr. 231–234.) In the Union’s position statement to the Board dated August 26, 2014, Rioux did not mention any argument between Hop- kins and Milbourn, or that Hopkins was terminated in whole or part due to his use of profanity or insubordination towards his supervisors. Rather, she stated that he was terminated “due to the fact that he demanded to be paid a wage rate that was higher than the one set forth under the collective-bargaining agreement that he was working under, and because he had displayed a “poor work ethic.” (GC Exh. 17.) She explained Local 134’s position that Hopkins was not really laid off, but terminated. Omni maintained in its position statement to the Board, dat- ed September 17, 2014, that Hopkins resigned his employment with Omni “because it was his belief he should have been paid higher wages under his Union contract.” It further stated that Omni “accepted his resignation and thereafter, as a favor to Mr. Hopkins converted the resignation to a layoff based on a reduc- tion in force.” The same statement also provided in part that, [Hopkins] became angry, shouting at the owner of the Com- pany and informed the Company he would not work for the wages set forth in the Agreement and left work. The Compa- ny accepted his resignation, but as a courtesy to the Charging Party (who then requested to return to work) they converted the resignation to a layoff as they really had no need for his services due to a reduction in force which then allowed Charging Party to apply for overtime. The Company in- formed the Union of this decision on June 25, 2014. (GC Exh. 18.) Omni’s statement also fails to mention that Hopkins cursed at Milbourn; it also ignores the credited testi- mony that Milbourn discharged Hopkins. In sum, crediting Hopkins over others, I find that he truly be- lieved that Omni and the Union had executed a MA, and did not discover they had not done so until June 2014; he was ter- minated, and did not resign or refuse to return to work, in the course of questioning the terms and conditions of his contract; and he did not yell, scream, or use profanity during his encoun- 20 Johnson confirmed in his testimony that he had provided this in- formation to Rioux. ters with Milbourn and Johnson. In addition, I find that John- son did not interview him, tell him the various reasons for his discharge, or give him an opportunity to respond to the charges lodged against him.21 III. DISCUSSION AND ANALYSIS A. Respondent Omni Violated Section 8(a)(1) of the Act When it Discharged Hopkins for Engaging in Protected Concerted Activity Employers who discharge employees for engaging in pro- tected concerted activity violate Section 8(a)(1) of the Act. The complaint alleges that Respondent Omni violated Section 8(a)(1) when it terminated Hopkins for engaging in protected concerted activity. The General Counsel contends that Omni’s unlawful termination was based solely on his protected and concerted efforts to enforce his collective-bargaining agree- ment. Omni, on the other hand, argues that Hopkins attempted to enforce the wrong contract which amounted to nothing more than a personal gripe over the denial of wages to which he was not entitled. Omni also asserts that if Hopkins’ activity is found to be protected, he lost the protection of the Act because of his insubordinate, aggressive behavior, as well as his decla- ration that he would not work for fewer wages and benefits. Based on the credibility findings previously made and those discussed below, I have determined that Hopkins’ actions were concerted and protected, and that Omni terminated him because of those actions, in violation of the Act. In doing so, I also find that Hopkins did not, in the course of that protected activi- ty, forfeit the protection of the Act. In NLRB v. City Disposal Systems, 465 U.S. 822 (1984), the Supreme Court approved the Board’s longstanding doctrine set forth in Interboro Contractors, 157 NLRB 1295 (1966), enfd., 388 F.2d 495 (2d Cir. 1967). In Interboro, the Board estab- lished that an employee engages in protected concerted activity when he or she, acting alone, relies on and asserts a right con- ferred through a collective-bargaining agreement. The Su- preme Court accepted the Board’s reasoning that the assertion of such a right “is an extension of the concerted action that produced the agreement,” and therefore a single employee’s invocation of that right generally affects all employees covered by the agreement negotiated on their behalf. The Court found that “[t]his type of generalized effect, as our cases have demon- strated, is sufficient to bring the actions of an individual em- ployee within the ‘mutual aid or protection’ standard [set forth in Section 7 of the Act], regardless of whether the employee has his own interests most immediately in mind.” NLRB v. City Disposal Systems, supra at 829 (citing Bunny Bros. Construc- 21 A credibility determination may rely on a variety of factors, in- cluding the context of the witness testimony, the witness’ demeanor, the weight of the respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-nothing propositions--indeed, nothing is more common in all kinds of judicial decisions than to believe some, but not all, of a wit- ness’ testimony. Daikichi Sushi, 335 NLRB at 622. 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion Co., 139 NLRB 1516, 1519 (1962), and Interboro Con- tractors, supra at 1298). See also, Tillford Contractors, 317 NLRB 68, 68–69 (1995). The Supreme Court also emphasized the Board’s intent in In- terboro to mitigate the potential inequality that exists through- out the duration of the employer-employee relationship, and stated: Moreover, by applying § 7 to the actions of individual em- ployees invoking their rights under a collective-bargaining agreement, the Interboro doctrine preserves the integrity of the entire collective-bargaining process; for by invoking a right grounded in a collective-bargaining agreement, the em- ployee makes that right a reality, and breathes life, not only into the promises contained in the collective-bargaining agreement, but also the entire process envisioned by Congress as the means by which to achieve industrial peace. Id. at 835–836. The Court also found that, The rationale of the Interboro doctrine compels the conclu- sion that an honest and reasonable invocation of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his be- lief that his right was violated . . . No one would suggest, for instance, that the filing of a grievance is concerted only if the grievance turns out to be meritorious. As long as the griev- ance is based on an honest and reasonable belief that a right had been violated, its filing is a concerted activity because it is an integral part of the process by which the collective- bargaining agreement is enforced. The same is true of other methods by which an employee enforces the agreement. Id. at 840–841. Based on the credibility findings in this decision, I conclude that Hopkins’ belief that he was working for Omni under the MA was reasonable and honest. It appears that the Union and Omni knowingly misled him into believing that he would be working under an agreement that would include not only the same wage rate, but also the same fringe benefits that he en- joyed at Nucore.22 This would include any raises and increases in benefits under the agreement, or any revisions or renegotia- tion of the agreement. It is inconceivable at best that Hopkins would have left his job at Nucore to work for Omni had he known that he would be relinquishing a much more favorable wage and benefits package. Indeed, as Johnson pointed out, the MA contained the highest tier of wages and benefits, while the LMA contained the lowest. It is equally beyond belief that Hopkins, who was shocked and dismayed in June 2014 to learn his employer and his exclusive collective-bargaining repre- sentative had signed a less lucrative contract and wage and benefits package, would have been so content and agreeable with the LMA in the Fall/Winter of 2013 had Omni and/or the Union actually disclosed its terms. It was under those circumstances, that upon learning for the first time in June 2014 that he had not received the expected 22 Even had Omni and the Union unintentionally misled him, Hop- kins nevertheless honestly and reasonably believed he was working under the MA. raise under the new MA, Hopkins began to invoke his rights under the agreement between Omni and the Union. When Om- ni and the Union finally made him aware that they had signed the LMA, and of its less favorable terms, he continued to de- mand the wage and benefits package to which he believed he was entitled, and was terminated in the course of doing so. I find that pursuant to the Interboro doctrine, adopted by the Supreme Court, those attempts constituted concerted activity protected under the Act. I further find that since Hopkins was terminated while asserting his rights, and thereby engaging in protected concerted activity, that Omni violated Section (a) (1) of the Act. B. Omni’s Affirmative (and Other) Defenses I understand that Omni and the Union had no obligation to have Hopkins ratify, or otherwise accept, their standalone agreement. However, his ratification would not have been a prerequisite for exercising his rights. Nor would my findings here, as Omni insists, undermine the Union’s authority as the exclusive collective-bargaining representative of its employees. I reject Omni’s argument that Interboro and City Disposal are inapplicable here because Hopkins tried to invoke terms not included in the LMA—or, in other words, terms of a contract not negotiated by the Union. In doing so, I find that Hopkins, who honestly and reasonably believed his contractual rights were violated, need not have been correct in his interpretation of the contract in order to invoke his rights under the contract. I further find that Board and Supreme Court rationale extends to the unique circumstances in this case, in which Hopkins truly and reasonably believed that Omni and the Union entered into another collective-bargaining agreement. Further, I find that Hopkins not only asserted rights that he believed he had under the MA, but also reasonably questioned Milbourn about the scope of work he performed under the LMA during the same encounter that led to his discharge. Likewise, pursuant to City Disposal, it matters not whether Hopkins was correct about his understanding of the LMA’s scope of work as long as it was honest and reasonable.23 Omni asserts that Hopkins’ actions would not have been concerted under the Interboro doctrine because he was the only Local 134 employee who worked for Omni at the time. This argument is contrary to the Board’s explanation that, “[w]hen an employee makes an attempt to enforce a collective- bargaining agreement, he is acting in the interest of all employ- ees covered by the contract. It has long been held that such activity is concerted and protected under the Act.” Tillford Contractors, supra, citing Interboro, 157 NLRB 1295 (1966). First, Omni (and the Union) knew when it signed the LMA and agreed to its terms that Hopkins was its only Local 134 em- ployee. In following Omni’s rationale, Hopkins would not have been protected under any circumstances, including at- 23 I credit Hopkins’ testimony, which was somewhat corroborated by Wagner’s, that his work involved more than just changing light bulbs from a crane (as told by Milbourn) or that performed inside of the light fixture (as told to him by Johnson). For example, it also involved fix- ing bad underground between two light poles (digging up and pulling wire between poles), and other work that he honestly and reasonably believed to be outside the scope of the LMA. OMNI COMMERCIAL LIGHTING, INC. 629 tempts to enforce the terms of the LMA if, for example, Omni had decided not to pay him wages or overtime, or had him working outside the scope of the contract. Second, when it entered into the LMA with the Union, Omni signed onto a col- lectively-bargained agreement and agreed to its terms and con- ditions already negotiated by the Union on behalf of similarly situated employees who worked for various other employers who initially or subsequently signed onto the LMA as did Om- ni. This is evident by language in the LMA referring to “[c]ontractors” who enter into the agreement, and by Johnson’s explanation of the various prenegotiated “B” agreements to which Omni could have become signatory. Thus, signing onto such an agreement does not absolve Omni from its responsibili- ties to Hopkins or to any other employees it might hire under the LMA. Next, I reject Omni’s argument that Hopkins’ activities, if protected and concerted, lose the protection of the Act because of his alleged combative behavior, yelling, and use of profanity on June 18. I agree that the Court in City Disposal recognized that, “[t]he fact that an activity is concerted, however, does not necessarily mean that an employee can engage in the activity with impunity. An employee may engage in concerted activity in such an abusive manner that he loses the protection of § 7.” In addition, the Board has long held that disciplinary action for conduct protected by the Act violates Section 8(a)(1) of the Act unless the employee’s actions were so threatening, egregious, or opprobrious as to cause him to lose that protection. Nor-Cal Beverage Co., 330 NLRB 610, 611 fn. 5 (2000). The credited evidence shows that Hopkins did not engage in such alleged yelling and cursing, or any other behavior that would have cost him protection of the Act. Even had I found that Hopkins had used the term “fucking” in describing how the Respondents and their agents had been “screwing” or misleading him, and in accusing them of lying to and cheating him, I still would not have found that he forfeited protection under the Act. It is well settled that some profanity and even defiance must be toler- ated during confrontations over contractual rights. See, for example, NLRB v. Chelsea Laboratories, 825 F.2d 680, 683 (2d Cir. 1987) (protection not lost because grievance presented in a rude and disrespectful manner); Severance Tool Industries, 301 NLRB 1166, 1169 (1991) (protection not lost when employee raised his voice at respondent’s president and called him a “son of a bitch”); Winston-Salem Journal, 341 NLRB 124, 125–127 (2004) (protection not lost when employee called his supervisor a “bastard” and “redneck son-of-a-bitch”). Therefore, I find that Respondent Omni discharged Hopkins for engaging in protected concerted activity in violation of Sec- tion 8(a)(1) of the Act, and that he did not in the course of that protected activity, engage in any conduct that caused him to lose the Act’s protection. Fresenius USA Mfg., 358 NLRB 1261, 1264 (2012); Atlantic Steel Co., 245 NLRB 814, 816 (1979).24 24 Omni cites several cases in support of its arguments, but they can be distinguished based on the factual findings in this decision. For example, Tampa Tribune & Richard Banos, 346 NLRB 369, 371 (2006), and Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 Both Omni and the General Counsel also analyze these alle- gations under the frame work set forth in Wright Line, 251 NLRB 1083, enfd., 662 F.2d 899 (1st Cir.), cert. denied 455 U.S. 989 (1982).25 However, Wright Line is inapplicable in this case, because a review of the credible evidence and the reasons set forth by Omni for Hopkins’ termination show that he was terminated in the course of asserting his rights under the LMA and the agreement under which he honestly and reasonably believed he worked. Both Omni and the Union admitted that a reduction in force layoff was not the real reason for Hopkins’ discharge. Omni’s other reasons for terminating Hopkins—his continued insistence that he was due a raise; his alleged com- bative behavior; yelling, and swearing at his supervisor; and his alleged declaration that he would not work for the unfavorable wages and benefits package under the LMA—were inextricably intertwined with his insistence on having Omni honor rights under both the LMA and the MA. Therefore, given my finding on Omni’s 8(a)(1) violation, I need not pass on the General Counsel’s alternative dual-motivation, retaliation theory that Hopkins’ discharge violated Section 8(a)(3) of the Act. See Aluminum Co. of America, 338 NLRB 20, 22 (2002) (dual- motive analysis inappropriate where there was a causal connec- tion between alleged protected activity and resulting disci- pline). See also Kingsbury, Inc., 355 NLRB 1195 (2010); La- Z-Boy Midwest, 340 NLRB 80 (2003). C. The Union Violated Section 8(b)(1)(A) of the Act When it Breached its Duty of Fair Representation The General Counsel alleges that the Union breached its duty to fairly represent Hopkins when it failed to file a grievance on his behalf, and in doing so violated Section 8(b)(1)(A) of the Act. A breach of this duty occurs when a union’s conduct is “arbitrary, discriminatory, or in bad faith” Vaca v. Sipes, 386 U.S. 171, 190–191, 207 (1967). In Airline Pilots Assn. v. O’Neill, 499 U.S. 65, 66 (1991), the Supreme Court clarified the nature of a union’s duty, extending it to all union activities, and holding that its “actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasona- bleness,’ as to be irrational.”26 Thus, the law clearly affords unions a broad range of discretion in carrying out its represen- tational duties, and an individual employee does not have an absolute right to compel arbitration or have a grievance filed on his behalf. Vaca, supra at 191. In addition, the Board has es- tablished that “[m]ere negligence, poor judgment, or ineptitude in grievance handling are insufficient to establish a breach of the duty of fair representation.” Service Employees Intl. Union, Local 579 (Beverly Manor Convalescent Center), 229 NLRB 692, (1977); King Soopers, Inc., 222 NLRB 1011 (1976); Truck Drivers, Oil Drivers and Filling Station and Platform Workers, Local No. 705 (Associated Transport, Inc.), 209 NLRB 292, 304 (1974). Similarly, a union does not violate the duty of fair (3d Cir. 1964), did not involve an employee asserting his rights under a collective-bargaining agreement. 25 The General Counsel poses this as an alternative argument. 26 It is also clear that the duty of fair representation extends to the in- vestigation and representation of a grievance. Hines v. Anchor Motor Freight, 424 U.S. 554 (1976). 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD representation where it refuses to process a grievance pursuant to a reasonable interpretation of the collective-bargaining agreement and/or a good-faith evaluation as to the merits of the complaint. In addition, the duty does not require that every possible option be exercised or that the union provide perfect advocacy. Teamsters Local 814 (Beth Israel Medical), 281 NLRB 1130, 1146–1147 (1986). However, the Board has established that in the exercise of that discretion, a union must still act in “good faith, with hones- ty of purpose, and free from reliance on impermissible consid- eration.” P.P.G. Industries, 229 NLRB 713 (1977). In Team- sters Local 355, 229 NLRB 1319 (1977), enfd. 597 F.2d 388 (4th Cir. 1979), the Board explained that, “the issue here is not whether the Respondent discharged its obligations with maxi- mum skill and adeptness, but whether, in undertaking its ef- forts, it dealt fairly.” And, the 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 pro- cessed it in a perfunctory fashion.” Vaca, supra. Based on the proven facts, I find that the Union clearly acted in bad faith when it failed to file a grievance on Hopkins’ be- half, and dismiss the Union’s arguments to the contrary. First, I reject the Union’s argument that it sufficiently inves- tigated Hopkins’ termination. Although Hopkins told Johnson that he had been terminated, I gave credence to his testimony that Johnson never returned his telephone call, or replied to his emails until the July 1 email. Nor did he apprise Johnson of the charges made by Milbourn and Omni in support of his dis- charge. Johnson’s recollection of his discussion with Hopkins on June 19 was actually supportive of Hopkins’ testimony that Johnson cut the conversation short before he could provide the details of his encounter with Milbourn. However, the evidence shows that Johnson had already presumed that Omni was justi- fied in its decision to terminate Hopkins. When Johnson talked to Milbourn on June 19, he instantly sided with him, and ad- vised him that Hopkins’ termination was valid due to insubor- dinate conduct, and later, Chwala thanked Johnson for his assis- tance with this matter. (GC Exh. 26.) In essence, Johnson made up his mind about Hopkins’ fate without relating to Hop- kins the charges against him (i.e., insubordination, aggressive conduct, swearing, yelling, and refusal to continue working for less money), and failed to give Hopkins an opportunity to tell his side of the story. I understand that the law does not require a union to interview all parties involved or to try to resolve all inconsistencies in deciding whether or not to file a grievance, but it does require an honest, fair, and real attempt to at least interview the discharged employee to whom he has a duty to represent. See Newport News Shipbuilding & Dry Dock, 236 NLRB 1470, 1471 (1978) (union agreed with employer’s deci- sion to terminate before it interviewed the grievant). Next, I disagree with the Union’s argument that it was up to Hopkins to investigate and find out why he was terminated, or to defend or give additional details about alleged conduct of which he was unaware. It is difficult to believe that Hopkins, given his zealous quest to ascertain what happened with his contract and finally the status of his grievance, would not have defended his actions in his emails to the Union had he been apprised of Omni’s allegations. Instead, I agree with the Gen- eral Counsel that the Union had every reason not to assist Hop- kins with his grievance (and never intended to do so) and not to keep him informed.27 Rather, Johnson was incensed that Hop- kins continued to assert his rights and question why the Union and Omni had misled him, and he made sure that he supported Omni in sustaining Hopkins’ termination. He did so with a sham investigation and what otherwise would have been an altruistic act of ensuring that Hopkins would be able to obtain unemployment benefits. Johnson also emphatically insisted that the Union could have filed a grievance on a reduction in force layoff, but his testimony in this regard was inconsistent with business agent Finn’s September 2 email explanation to Hopkins that the Union did not file a grievance because he was laid off due to a reduction in force. (GC Exh. 15.) I have considered all of the Union’s arguments and cases cit- ed in support thereof, and conclude that they are not applicable here where the evidence supports a conclusion that it breached its duty of fair representation. Based on all of the credited evi- dence in this case, I find that the Union failed to investigate or proceed with a grievance on Hopkins’ behalf, and that its ac- tions in doing so “[transcend] the concept of ‘mere negligence’ and ‘ineptness.’ Teamsters Local 814 (Beth Israel Med.), 281 NLRB 1130, 1149 (1986). I further find that the Union’s ac- tions were perfunctory, and in light of the evidence, exceeded a wide range of reasonableness such that they were arbitrary and irrational. Accordingly, I find that the Union breached its duty of fair representation when it failed to file a grievance on Hopkins’ behalf, and in doing so, violated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Respondent Omni is an employer who has engaged in un- fair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Omni, by discharging Hopkins because of his protected concerted activity, has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 4. Respondent Union, by failing and refusing to file a griev- ance on Hopkins’ behalf in connection with his discharge, and thereby breaching its duty of fair representation, has engaged in unfair labor practices within the meaning of Sections 8(b)(1)(A) of the Act. REMEDY Having found that both Respondent Omni and Respondent Union have engaged in certain unfair labor practices, I find that they must be ordered to cease and desist therefrom and to take 27 Additionally, a union may not willfully misinform a grievant con- cerning the action being taken on his case. Security Personnel (Church Charity), 267 NLRB 974 (1983). Similarly, the duty of fair representa- tion also imposes a duty not to “purposely keep [an employee] unin- formed” about his grievance. Id. at 1150; Groves-Granite, 229 NLRB 56 (1977). OMNI COMMERCIAL LIGHTING, INC. 631 certain affirmative actions designed to effectuate the purposes and policies of the Act.28 Having found that Respondent Omni unlawfully discharged Hopkins, I find that it must be ordered to offer him immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by payment of a sum equal to that which he would normally have earned from the date of the discrimination, June 18, 2014, to the date of Respondent’s offer of reinstatement. The amount of back pay due shall be computed according to the Board’s policy set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987). Respondent Omni shall also remove from its files, including Hopkins’ personnel files, any references to his discharge, and shall therefore notify Hopkins in writing that this has been done 28 Since I have found Respondent Omni liable for Hopkins’ unlawful termination, it is not necessary to require, as requested in the complaint, that Respondent Union seek reinstatement, or in the alternative, a grievance on Hopkins’ behalf, or that it make Hopkins whole for any loss of earnings or benefits suffered from the time of his discharge on June 18, 2014, until such time as he would be reinstated by Omni or obtains substantially equivalent employment. (GC Exh. 1(e).) and that the discharge will not be used against him in any way. Respondent Omni shall, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including electronic copies of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of the order. Respondent Omni shall file a report with the Social Security Administration allocating backpay to the appropriate calendar quarters. Respondent shall also compensate Hopkins for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards covering periods longer than 1 year, Latino Express, Inc., 359 NLRB 518 (2012). Respondent Omni shall post an appropriate notice as de- scribed in the order and the attached Appendix A. Having found that Respondent Union violated Section 8(b)(1)(A) of the Act by failing and refusing to properly repre- sent Hopkins after he was discharged on June 18, 2014, I find that it must be ordered that Respondent Union refrain from so failing and refusing to properly represent its member employ- ees, including Hopkins. [Recommended Order omitted from publication.]