(dissenting).
I. The Concerted Activity Issue
Section 7 of the National Labor Relations Act states that “[e]mployees shall have the right * * * to engage in * * * concerted activities for the purpose of collective bargaining or other mutual aid or protection * * Section 8(a) (1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights. The question presented for our determination is whether efforts by an employee to enforce a provision of the collective bargaining agreement are per sé “concerted activity.”
Since there are no Third Circuit cases which consider the specific issue sub judice, I would adopt the teaching of a recent Second Circuit opinion by Chief Judge Lumbard in NLRB v. Interboro Contractors, Inc., 388 F.2d 495 (1967). In that case the court stated:
“[W]hile interest on the part of fellow employees would indicate a concerted purpose, activities involving attempts to enforce the provisions of a collective bargaining agreement may be deemed to be for concerted purposes even in the absence of such interest by fellow employees.” Id. at 500.
Thus, this case holds that efforts by an employee to enforce a collective bargaining agreement are considered concerted activity per sé.1
I think that this court should adopt the holding of Interboro not only because it has been followed by the National Labor Relations Board for many years 2 but also because it represents a sound interpretation of Sections 7 and 8(a) (1) *888of the Act. When an individual employee attempts to enforce a provision of a collective bargaining agreement, he is asserting a “collective” right under a collective contract. Although an individual employee, in processing his complaint based upon a contractual provision, might be concerned primarily with accomplishing a result which will benefit him personally, his success will redound to the direct benefit of all employees similarly situated. In the instant case, Davis was concerned primarily with convincing Rose that he was entitled to the holiday pay under the collective bargaining agreement. However, Davis was, in effect, representing all other probationary employees (both present and future) for, if successful, his efforts would benefit this class of persons. “Where an individual employee asserts a right found in a collective-bargaining agreement, it is reasonable to state he is extending the terms protecting union activity.” Illinois Ruan Transportation Corp. v. NLRB, 404 F.2d 274, 285 (8 Cir. 1968) (dissenting opinion of Judge Lay). Also see NLRB v. Century Broadcasting Corp., 419 F.2d 771, 780 (8 Cir. 1970).
It might be argued that the adoption of the Interboro rule will encourage employees to bypass the regular grievance procedure. This result is unlikely, except in the rare situation, where the employee is not entitled to union representation. Where an employee belongs to the union and is entitled to union representation, he would undoubtedly request the union to process his grievance. Furthermore, Congress has put its imprimatur on individual processing of grievances. Section 9(a) of the Act, 29 U.S.C. § 159(a), provides:
“Representatives * * * selected for purposes of collective bargaining by the majority of the employees * * * shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee * * * shall have the right at any time to present grievances to [his] employer and to have such grievances adjusted, 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.”
The first proviso was meant to be a buffer between the employee and his union, so that the employer may hear an individual’s grievance without running afoul of Section 9(a), which makes the union the exclusive bargaining agent. Black-Clawson Co. Paper Machine Division v. International Ass’n of Machinists, 313 F.2d 179, 185 (2 Cir. 1962); Comment, Federal Protection of Individual Rights Under Labor Contracts, 73 Yale L.J. 1215 (1964).
The majority opinion indicates that even if the Interboro rule were adopted, a remand to the Board would be necessary for a finding as to whether Davis had a reasonable basis for his belief that he was entitled to the holiday pay under the collective bargaining contract. I agree that this procedure should be followed and, if the Board determines that Davis did have a reasonable basis for his belief, the Board’s order, as amended, should be enforced.
II. The Cause for the Discharge
I conclude that Davis was engaged in concerted activity within the meaning of the Act. I think I should go further and give my view as to whether this was the reason for his discharge. Although one could conclude that Davis was discharged for a proper purpose I think that the record does not lack substantial evidence to support the finding of the Board that Davis was discharged for pressing for the holiday pay to which he thought he was entitled. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The resolution of questions of credibility rests with the Board. NLRB v. Wings & Wheels, Inc., 324 F.2d 495, 496 (3 Cir. 1963).
*889III. This Court’s Duty to Assure Reasonableness and Fairness of Board Decisions
(1) As an alternative basis for denying enforcement of the Board’s order, my Brother Rosenn indicates that the trial examiner failed to follow the teaching of Universal Camera by crediting all of Davis’ testimony needed to make out a case against the company even when it conflicted with testimony offered by the company while rejecting part of Davis’ testimony as implausible. Thus, my Brother strongly implies that Universal Camera requires a court of appeals to scrutinize the credibility findings and reasoning of the Board. I think that Universal Camera merely stands for the proposition that the scope of review of NLRB decisions under the National Labor Relations Act, 29 U.S.C. § 160(e), is precisely the same as the scope of review under the Administrative Procedure Act, 5 U.S.C. § 705— whether the decision of the agency is supported by substantial evidence on the record considered as a whole. Universal Camera does not purport to alter the primary function of the agencies in making fact determinations. As we recently stated in Ginsburg v. Richardson, 436 F.2d 1146 (1971): “[i]t is unnecessary for this court to be in accord with all of the examiner’s findings and reasoning as long as his ultimate conclusion is based upon substantial evidence.” Also see Lester v. Celebrezze, 221 F.Supp. 607, 611 (E.D.Ark.1963). While it was certainly permissible for the examiner to discredit all of the employer’s testimony (see NLRB v. John Langenbacher Co., 398 F.2d 459 (2 Cir. 1968)), it was likewise permissible for him to reject only part of Davis’ testimony without rejecting all of it. The rule “Falsus in uno, falsus in omnibus” is merely permissive and not mandatory in a trial examiner’s evaluation of credibility.
(2) The majority opinion also states that the trial examiner “erected a presumption against the veracity of testimony offered by the employer and thereby improperly altered the burden of proof.” In order to demonstrate this the majority lists four situations where lack of corroboration was held against the company while noting that lack of corroboration was not held against Davis. While I agree that the burden of proving an improper discharge is upon the General Counsel, I do not understand how the General Counsel’s failure to corroborate Davis’ testimony and the trial examiner’s omission of any reference to such lack of corroboration can constitute a shifting of the burden of proof. Under the trial examiner’s view of the law, and what I deem to be the correct view, Davis was only required to prove that he had been discharged for pressing his contractual grievance with Rose. The only person who ever overheard these conversations between Davis and Rose was Ellison — the company’s main witness. Thus, the opportunity to corroborate Davis’ testimony never reasonably presented itself. It was unnecessary for the General Counsel to corroborate Davis’ denial of the company’s version of the circumstances surrounding his discharge — that he had been discharged because he was an unsatisfactory employee. While such a course would have made the General Counsel’s case even stronger, I do not think that this lack of corroboration and the failure of the examiner to note such lack of corroboration constituted a shifting of the burden of proof, particularly where the General Counsel had already introduced substantial evidence showing that the discharge was improper. In other words, the burden on the General Counsel of proving that the discharge was improper does not mean that he was required to corroborate the negation of the employer’s version of the facts.3
For these reasons I respectfully dissent.
. In NLRB v. Selwyn Shoe Mfg. Corp., 428 F.2d 217, 221 (8 Cir. 1970), the court stated: “We think it obvious that rights secured by such * * * [a collective bargaining] agreement, though personal to each employee, are protected rights under § 7 of the Act because the collective bargaining agreement is the result of concerted activities by the employees for their mutual aid and protection.” The court held that it was an unfair labor practice for the employer to discharge an employee for vigorously presenting a personal grievance based upon a clause in the collective bargaining agreement. The only fact in Selwyn Shoe which distinguishes that case from the instant case is that the employee in that case properly invoked the union grievance procedure which was available to her. In the case at bar, Davis could not utilize the grievance machinery that was available to regular employees since he was not a member of the union.
It would be unfair to deny the benefits of the Act to probationary employees who are not yet entitled to utilize the union grievance machinery while extending benefits to regular employees who are entitled to process their grievances through the union. The artificiality of such a distinction has been pointed out in a recent decision of the Board, J. A. Ferguson Constr. Co., 172 NLRB No. 165 (1968). The Board, affirming the trial examiner’s findings and conclusions, stated:
“As to the May 1 discharge, the only reason assigned by the employer for the discharge was Tolot’s alleged conduct on April 30 in leaving his work station without permission to protest a violation of the union contract, instead of processing his complaint through the steward under the contract’s grievance procedure.
* * $ 4 *
“Even assuming that Tolot’s request was in derogation of the grievance provisions of the contraet, his conduct, nevertheless, constituted concerted activity since the ‘grievance’ pertained to a violation of a condition of employment prescribed in the contract, affecting not only Tolot but also all the bricklayers on the job. Since Tolot’s conduct was protected concerted activity, the employer, therefore, violated Section 8(a) (1) of the Act by discharging Tolot because of such conduct.” (Emphasis added.)
. See, e. g., H. C. Smith Construction Co., 174 NLRB No. 180 (1969) ; New York Trap Rock Corp., 148 NLRB No. 41 (1964).
. In the instant case, Davis negated the employer’s version by denying that he had ever been warned of liis unsatisfactory work performance.