Omni Commercial Lighting, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 2016

364 NLRB No. 54 (N.L.R.B. 2016)

364 NLRB No. 54
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
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

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 No. 143 (2016), we shall modify the judge’s
recommended 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.
to our dissenting colleague, we agree with the judge’s
finding.3
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

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
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.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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,
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
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.

5 All dates hereafter are in 2014 unless otherwise noted.
OMNI COMMERCIAL LIGHTING, INC. 3
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
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-

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.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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

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
reasonable belief that the MA was, in fact, the contract that covered his
employment with Omni.
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.
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.
OMNI COMMERCIAL LIGHTING, INC. 5
(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
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-

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-
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.”
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,
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.
Dated, Washington, D.C. July 19, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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,

1 For a more complete discussion of these Sec. 7 requirements, see
Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 13
(2014) (Member Miscimarra, concurring in part and dissenting in part).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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

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.
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.”).
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
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

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
Market, supra, 361 NLRB No. 12, slip op. at 17–19 (Member Misci-
marra, concurring 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.
OMNI COMMERCIAL LIGHTING, INC. 7
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-
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
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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

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.
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-
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.
Dated, Washington, D.C. July 19, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

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).
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).
OMNI COMMERCIAL LIGHTING, INC. 9
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-
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

1 Charging Party Hopkins is also referred to throughout witness tes-
timony as “Tony.”
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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,
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

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.
OMNI COMMERCIAL LIGHTING, INC. 11
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
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 two 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-

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.)
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
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

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.
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
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.”
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.

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.
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.)
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”
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-

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.
OMNI COMMERCIAL LIGHTING, INC. 13
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
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

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.
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.)
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.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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

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.)
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
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

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,
OMNI COMMERCIAL LIGHTING, INC. 15
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
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.

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.)
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.
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
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

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.)
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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.

20 Johnson confirmed in his testimony that he had provided this in-
formation to Rioux.
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-
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

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.
OMNI COMMERCIAL LIGHTING, INC. 17
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-
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
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

22 Even had Omni and the Union unintentionally misled him, Hop-
kins nevertheless honestly and reasonably believed he was working
under the MA.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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-
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-

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.
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
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

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
(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.
OMNI COMMERCIAL LIGHTING, INC. 19
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
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-

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).
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.

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).
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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
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

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).)
lump-sum backpay awards covering periods longer than 1 year,
Latino Express, Inc., 359 NLRB No. 44 (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.
Respondent Union must post an appropriate notice, as de-
scribed in the order and attached Appendix B.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended29
ORDER
A. The Respondent, Omni Commercial Lighting, of Elgin,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, reprimanding, or otherwise discriminating
against/or otherwise taking adverse action against employees
because of their protective concerted activities, including their
attempts to enforce rights under their collective-bargaining
agreements.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the purposes of the Act.
(a) Offer Hopkins immediate and full reinstatement to his
former 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 his unlawful dis-
charge, 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.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Hopkins,
within 3 days thereafter notify him in writing that this has been
done and that the discharge will not be used against him in any
way.
(c) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its
facility at Omni Commercial Lighting, Inc., Elgin, Illinois,

29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
OMNI COMMERCIAL LIGHTING, INC. 21
copies of the attached notices marked “Appendix A.”30 Copies
of Appendix A, on forms provided by the Regional Director for
Region 13, after being signed by Respondent Omni’s author-
ized representative, shall be posted by Respondent Omni im-
mediately upon receipt thereof and be maintained for 60 con-
secutive 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 distribut-
ed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if Respondent Om-
ni customarily communicates with its employees by such
means. Reasonable steps shall be taken by Respondent Omni
to see that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, Respondent Omni has gone out of business
or closed the facility involved in these proceedings, Respondent
Omni shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent Omni at any time since June 18,
2014.
(e) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps Re-
spondent Omni has taken to comply herewith.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent Omni has taken to comply.
B. Respondent Union, International Brotherhood of Electri-
cal Workers Local 134, of Chicago, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to carry out its duty to fairly repre-
sent its employees/members in the processing of their grievanc-
es.
(b) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action.
(a) Within 14 days after service by the Region, post at its
business office in Chicago, Illinois, meeting halls, or other
places where it customarily posts notices, signed copies of the
attached notice marked “Appendix B.”31 Copies of said notice,
on forms provided by the Regional Director for Region 13,
shall, after being signed by Respondent Union’s authorized
representative, be posted by Respondent Union immediately
upon receipt thereof and be maintained for 60 consecutive days
thereafter. Additional copies of said appendix B shall be duly
signed by an authorized representative of Respondent Union

30 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.”
31 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.”
and furnished to the said Regional Director for transmission to
Respondent Omni for posting by Respondent Employer in ac-
cordance with the Order directed to Respondent Employer
above.
(b) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps Re-
spondent Union has taken to comply herewith.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 8, 2015
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL not discharge, reprimand, or otherwise discriminate
against our employees because they engage in protected con-
certed activities.
WE WILL not in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Anthony Hopkins full reinstatement 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 privi-
leges previously enjoyed.
WE WILL make Anthony Hopkins whole for any loss of earn-
ings or other benefits he may have suffered as a result of his
unlawful discharge on June 18, 2014, less any net interim earn-
ings, and plus interest in the manner set forth in the remedy
section of this decision and order.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Anthony Hopkins for the adverse tax
consequences, if any, of receiving one or more lump-sum back-
pay awards covering periods longer than 1 year. Within 14
days from the date of the Order, remove from its files, includ-
ing Anthony Hopkins’ personnel file, any reference to his un-
lawful discharge, and within 3 days thereafter notify Hopkins in
writing that this has been done and that the discharge will not
be used against him in any way.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps
that Respondent Omni has taken to comply.
OMNI COMMERCIAL LIGHTING, INC.
The Administrative Law Judge’s decision can be found at
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,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.
APPENDIX B
NOTICE TO 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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT restrain or coerce member employees, includ-
ing Anthony Hopkins or other employees of Omni Commercial
Lighting, Inc., in the exercise of their rights guaranteed by Sec-
tion 7 of the National Labor Relations Act by failing and refus-
ing to fairly represent them in the handling of their grievances.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps
that Respondent Union has taken to comply.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS LOCAL 134
The Administrative Law Judge’s decision can be found at
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,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273–1940.