The National Labor Relations Board petitions this court for enforcement of its order based on its determination that the company had engaged in an unfair labor practice in violation of section 8(a)(1) of the National Labor Relations Act. The alleged violation was the discharge of an employee for concerted activity protected by section 7. The issue presented is whether substantial evidence supports the Board’s finding that Douglas T. Martin was engaged in protected concerted activity which led to his discharge because he “voiced a series of complaints relating to working conditions at the job on which he was employed.”

Douglas T. Martin was discharged from his work with C & I Air Conditioning, Inc. (C & I) on December 5, 1969, assertedly because his work had slowed down. The Board concluded the reason for his discharge was that he had voiced complaints concerning safety on the job site. This conduct amounted to protected concerted activity, according to the Board, because Martin’s complaint was related to safety conditions on the job and was consistent with his rights set forth in the collective bargaining agreement his labor union had with his employer. Martin, a member of the Sheet Metal Workers’ Union, obtained work through the union with C & I in August 1969 installing heating and air conditioning units at a construction project in San Jose, California. C & I was the subcontractor on the project for MeKeon Construction. Three days before his discharge, Martin and a coworker were carrying a heating unit to an upstairs apartment when the temporary stairway they were using collapsed. Martin’s co-worker sustained injuries in the accident. Martin immediately approached Stanley W. Smith, McKeon’s general superintendent, and voiced his complaint about the unsafe condition of the temporary stairs. He declared that he would not carry furnaces up the stairs any more unless they were secured in place permanently. Smith replied, “Well, if you don’t want to carry the furnaces up the stairs, then get off my job.” (R.T. at 49). Martin agreed, “Okay, I will.” He did not, however, quit the job. Smith testified that he reported this incident to C & I’s project manager, Elwyn S. Dubey, and indicated that Martin had threatened to quit.

We deny the Board’s petition for enforcement based on our conclusion that there was no substantial evidence to establish the employee had engaged in protected concerted activity. Section 7 provides :

Our circuit has indicated that the term, “concerted activity” means that the employee must be acting “with or on behalf of other employees, and not solely by and on behalf of the discharged employee himself.” Pacific Electricord Co. v. NLRB, 361 F.2d 310 (9th Cir. 1966). We are unable to find any evidence that Martin’s complaint was made for the purpose of mutually aiding and protecting any employees other than himself.

We do not disagree in principle with the rule stated by the Second Circuit in NLRB v. Interboro Contractors, Inc., 388 F.2d 495, 500 (2d Cir. 1967) that:

Other circuits have adopted the Inter-boro Contractors rationale in finding protected concerted activity although the discharged employee was acting by himself. See, e. g., NLRB v. Ben Pekin Corp., 452 F.2d 205 (7th Cir. 1971). Contra, NLRB v. Northern Metal Co., 440 F.2d 881 (3d Cir. 1971). We recognize the emergence of that rule but fail to see any evidence showing that the purpose of Martin’s conduct was for the “mutual aid and protection” of other employees, or that it was an attempt to enforce the provisions of a mutual bargaining agreement. In our opinion Martin’s complaint was an individual protest “on behalf of the discharged employee himself.”

A close consideration of Martin’s conduct, alleged to amount to protected concerted activity, convinces us that this situation is distinguishable from those cases where courts have applied the Inter-boro Contractors rationale, and we therefore do not reach the problem. Edward B. Miller, Chairman of the NLRB, stated the distinction in his dissent to the Board’s Decision and Order:

We share the dissenting Board Chairman’s view and thus refuse to enforce the Board’s order.

We might note further that Martin’s complaint regarding the stairs was related to an isolated incident. Martin was never asked to go up improperly secured stairs on any other occasion. Moreover, his complaint was merely an off-the-cuff remark directed to the job site foreman of the general contractor, who was not directly related to Martin’s employer, C & I. That afternoon Martin talked to supervisors from his own company but he did not raise a complaint. Finally, there is not a scintilla of evidence that Martin intended to implement rights under the collective bargaining agreement. Martin’s answers to questions by the trial examiner are illuminating on these matters:

We agree that, under these circumstances, Martin did not engage in conduct amounting to protected concerted activity. Not only was he acting by himself, as were the employees in Inter-ioro Contractors and related cases, but he was also acting for himself. We fail to see that his actions were meant to be for the mutual aid and protection of any others.

The Board’s order is set aside and will not be enforced.