Trans Tech Electric, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 632 (N.L.R.B. 1985)

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