Wayne J. Griffin Electric, Inc. v. National Labor Relations Board , 36 F. App'x 138 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WAYNE J. GRIFFIN ELECTRIC, 
INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,  No. 01-2258
Respondent,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, Local 103,
Intervenor-Respondent.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.
 No. 01-2423
WAYNE J. GRIFFIN ELECTRIC,
INCORPORATED,
Respondent.

On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations Board.
(1-CA-34180, 1-CA-34280, 1-CA-34346, 1-CA-34478)
Argued: April 4, 2002
Decided: June 7, 2002
Before WIDENER, WILKINS, and KING, Circuit Judges.
Petition for review denied, and cross-application for enforcement
granted, by unpublished per curiam opinion.
2 GRIFFIN ELECTRIC v. NLRB
COUNSEL
ARGUED: Dion York Kohler, JACKSON, LEWIS, SCHNITZLER
& KRUPMAN, Atlanta, Georgia, for Griffin Electric. William M.
Bernstein, Senior Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Board. Burton E. Rosenthal,
SEGAL, ROITMAN & COLEMAN, Boston, Massachusetts, for
Union. ON BRIEF: Jonathan J. Spitz, JACKSON, LEWIS,
SCHNITZLER & KRUPMAN, Atlanta, Georgia, for Griffin Electric.
Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Frederick
Havard, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Board. Elizabeth A. Sloane, SEGAL,
ROITMAN & COLEMAN, Boston, Massachusetts, for Union.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Petitioner Wayne J. Griffin Electric, Incorporated seeks review by
this Court, pursuant to 29 U.S.C. § 160(f) of the National Labor Rela-
tions Act, of the Decision and Order of the National Labor Relations
Board entered on September 27, 2001. By its Order, the Board con-
cluded that Griffin Electric had engaged in various unfair labor prac-
tices, and it directed Griffin Electric to cease and desist from violating
the Act. The Board has cross-appealed for enforcement of its Order.
Finding no error, we deny the petition for review and we enforce the
Order of the Board.
GRIFFIN ELECTRIC v. NLRB 3
I.
A.
Griffin Electric is in the building construction business, and it is
one of the largest non-union contractors in the northeastern United
States. Wayne Griffin ("Mr. Griffin"), who founded Griffin Electric
more than twenty years ago, continues to serve as its President, and
he is closely involved in all aspects of its operations, including the
promotion and discipline of employees.
The organization and structure of Griffin Electric is relatively
straightforward. Reporting directly to Mr. Griffin is Gerald Richards,
the company’s Operations Manager, who is responsible for supervi-
sion of the various Griffin Electric Project Managers. The Project
Managers work out of Griffin Electric’s headquarters in Holliston,
Massachusetts, and they are responsible for oversight of its ongoing
construction projects. Reporting to the Project Managers are Project
Foremen, who are present at each job site to supervise day-to-day
operations. The responsibilities of the Project Foremen include: inter-
acting with subcontractors; coordinating and assigning work to job-
site employees; conducting safety meetings; preparing and collecting
time sheets, leave requests, and other paperwork; and reporting viola-
tions of work rules to company headquarters.
B.
The controversy underlying this proceeding had its genesis in the
summer of 1995, just before Griffin Electric was scheduled to build
the Suffolk County Courthouse in Boston, Massachusetts. Griffin
Electric had previously negotiated project labor agreements with the
International Brotherhood of Electrical Workers, Local 103, AFL-
CIO (the "Union"), and it attempted to do so with respect to the Suf-
folk County Courthouse project.1 Negotiations failed, however, and in
early 1996 the Union began an organizing campaign at Griffin Elec-
tric’s Massachusetts job sites. In its campaign, the Union utilized four
of its long-time members who were also Griffin Electric employees.
1
A "project labor agreement" establishes work rules, wages, and bene-
fits for all employees, regardless of union affiliation.
4 GRIFFIN ELECTRIC v. NLRB
One of the Union’s campaign weapons was the procedure known as
"union salting," by which its members and organizers ("salts") sought
employment with Griffin Electric for the purpose of creating pro-
union sentiment.2
Griffin Electric became aware of the Union organizing campaign
on May 31, 1996, when some of its union-affiliated employees staged
a walk-out. Along with non-employee union sympathizers, these
employees picketed several of the company’s job sites in Massachu-
setts. In response to the organizing campaign, Mr. Griffin promptly
visited several of Griffin Electric’s construction sites. During these
visits, he met with non-picketing employees, both individually and in
small groups, and he expressed his distaste for the union organizing
effort. Among other assertions, Mr. Griffin advised employees that
unionization would result in current employees being "out on the
bench," because they would be replaced by workers on the Union’s
out-of-work list. He also claimed that Griffin Electric "would never
be Union," and he advised employees that, if they had already signed
union authorization cards, "I can tell you, if you call me, whom to
send a letter requesting your card back." Finally, Mr. Griffin advised
his employees that signing a union authorization card would be like
"stabbing him in the back." On June 6, 1996, the Union concluded its
six-day "walk-out" and picketing effort.
C.
In June of 1996, the Union filed its "Charge Against Employer,"
with the Board, alleging various unfair labor practices against Griffin
Electric. On March 12, 1997, the Board issued a complaint against
2
In our recent decision in Aneco Inc. v. N.L.R.B., 285 F.3d 326, 328
(4th Cir. 2002), Judge Luttig described salting as the process "where
union organizers seek to become employees of a company targeted by
the union," and they work for the targeted employer "as long as there is
a prospect of success at organizing its workers." The Board has utilized
a similar definition of salting. See Robert Geller, Decision, 16-CA-
21363, 2002 WL 464548 (March 22, 2002) (describing "salting" as "the
Union’s practice of sending members or organizers to nonunion employ-
ers [to] seek[ ] employment" for the purpose of "organizing the
employer").
GRIFFIN ELECTRIC v. NLRB 5
Griffin Electric, asserting numerous violations of the Act. Griffin
Electric promptly filed its answer to those charges, denying that it had
violated the Act and, in the alternative, asserting affirmative defenses.
The charges were tried in early 1998 before an administrative law
judge (the "ALJ") in Boston, and the ALJ concluded that Griffin Elec-
tric had committed various unfair labor practices in violation of
§§ 8(a)(1) and (3) of the Act.3 Wayne J. Griffin Electric, Inc., Deci-
sion, JD(NY)-4-99, (Feb. 4, 1999) (the "ALJ Decision").4 A three-
member panel of the Board then affirmed the ALJ Decision.5 Wayne
J. Griffin Electric, Inc., 335 N.L.R.B. No. 104 (Sept. 27, 2001) (the
"Order").
The Board supported its conclusion that Griffin Electric had
engaged in unfair labor practices, in contravention of §§ 8(a) (1) and
(3) of the Act, with detailed findings of fact. These factual findings
include the following:
• On February 20, 1996, the company distributed a memo-
randum to its employees asking them to "[p]lease let
[Mr. Griffin] know of any situations you experience
which are union based activities, as we are attempting to
track the location and frequency of such issues."
• Griffin Electric distributed a second memorandum to its
employees on March 21, 1996, which drew attention to
recent union activity and stated that Mr. Griffin "would
3
An employer engages in an unfair labor practice in violation of
§ 8(a)(1) when it "interfere[s] with, restrain[s], or coerce[s] employees in
the exercise of the rights guaranteed [by the Act]." It engages in an unfair
labor practice in contravention of § 8(a)(3) if it "discriminat[es] in regard
to hire or tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organization."
4
The ALJ Decision ruled in favor of Griffin Electric on several of the
allegations of the complaint. The Board does not challenge any of the
dismissed allegations.
5
Because the Board adopted the ALJ Decision without modification,
the findings and conclusions of the Board are those made in the ALJ
Decision.
6 GRIFFIN ELECTRIC v. NLRB
appreciate hearing of any other union activity that you
may become aware of."
• In June and July 1996, Mr. Griffin instructed Sean
Schultheis that he was sending Boylan, a known union
member, to Schultheis’s job site and that Schultheis
should assign "someone you can trust to keep an eye on
him." Mr. Griffin also advised Schultheis that "it’s not
too late to get the [union] cards back," and he suggested
that Schultheis try to find out which employees had
signed union cards. Finally, after Schultheis was seen
eating lunch with a known union member, Mr. Griffin
suggested that associating with union sympathizers
would negatively impact Schultheis’s opportunities for
advancement with the company.
• Mr. Griffin met with an employee, Steven Kinsella, in
September 1996 to discuss the possibility of a pay raise.
During this meeting, Kinsella complained that he was
getting a "bum rap" because of a rumor that he had
signed a union card. Mr. Griffin retorted that "[D]id your
mother ever tell you that you were judged by who you
hang about with" and, at the conclusion of the meeting,
awarded Kinsella a pay raise. From this interaction, the
Board found that Kinsella could reasonably believe that
Mr. Griffin was monitoring his union activity, and that
the pay raise was part of a "carrot and stick" approach to
discourage employees from exercising their rights under
the Act.
• In December 1996, Mr. Griffin spoke with Schultheis in
reference to the Union’s charges. He stated that "f-king
with his company [was like] with f-king with his kids."
In this conversation, Mr. Griffin also asked Schultheis "if
he would rather have the money spent on NLRB charges
[or] in his profit sharing [plan]."
After making these and other findings, the Board proceeded to con-
sider whether those findings constituted unfair labor practices. After
so doing, the Board concluded that Griffin Electric had committed
GRIFFIN ELECTRIC v. NLRB 7
both §§ 8(a)(1) and (3) violations, and it entered its cease and desist
order.
On October 16, 2001, Griffin Electric filed its petition for review
with this Court. On December 3, 2001, the Board cross-applied for
enforcement of the Order, and the Union subsequently intervened in
support of the Board. We possess jurisdiction pursuant to 29 U.S.C.
§ 160(f), and venue is proper because Griffin Electric transacts busi-
ness and resides in this circuit.
II.
We review an order of the Board to determine if it is supported by
substantial evidence on the record as a whole. Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474 (1951). Substantial evidence consists
of "such relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion." N.L.R.B. v. Peninsula Gen. Hosp.
Med. Ctr., 36 F.3d 1262, 1269 (4th Cir. 1994) (quoting Consol. Edi-
son Co. v. N.L.R.B., 305 U.S. 197, 217 (1938)). We have observed
that "while ‘substantial evidence’ is more than a scintilla, it may also
be less than a preponderance." Grinnell Fire Prot. Sys. Co. v.
N.L.R.B., 236 F.3d 187, 195 (4th Cir. 2000) (internal citations omit-
ted). Moreover, we accord due deference to the reasonable inferences
the Board draws from the evidence, N.L.R.B. v. Brown, 380 U.S. 278(1965), regardless of whether, in the first instance, we might have
reached a different conclusion. Universal Camera, 340 U.S. at 488.
And we will affirm the Board’s application of law to the underlying
facts so long as its application is "reasonable and consistent with the
Act." Grinnell Fire, 236 F.3d at 195 (citing N.L.R.B. v. Yeshiva Univ.,
444 U.S. 672, 691 (1980)).
III.
By its petition for review, Griffin Electric has raised twenty-four
issues, each of which challenges the sufficiency of the evidence or
asserts legal error. After careful consideration of these multiple
assignments of error, we are comfortable rejecting all but two on the
basis of the ALJ Decision and the Board’s Order. Wayne J. Griffin
Electric, Inc., 335 N.L.R.B. No. 104 (Sept. 27, 2001); Wayne J. Grif-
fin Electric, Inc., Decision, JD(NY)-4-99, (Feb. 4, 1999). The remain-
8 GRIFFIN ELECTRIC v. NLRB
ing two contentions warrant additional discussion. First, Griffin
Electric maintains that the Board erred by treating "salts" more favor-
ably than other Griffin Electric employees. Second, it contends that
the Board incorrectly attributed to it the statements of certain of its
Project Foremen, mistakenly deciding they were agents of the com-
pany. We address these contentions in turn.
A.
Griffin Electric first contends, in substance, that the Board was par-
tial to the Union and acted improperly in this case. It asserts, in partic-
ular, that the Order in "[t]he present case reflects the Board’s
continued pattern of improperly applying agency policies and proce-
dures in a manner that inappropriately favors union salting." To the
contrary, however, there is no evidence that the Board engaged in
improper conduct of any kind. First, in making its findings, the Board
did not blindly credit the testimony of union sympathizers. For exam-
ple, before finding that Mr. Griffin had suggested to his employees
that unionization would result in job losses, the Board carefully con-
sidered his testimony, as well as that of James Lexner, Schultheis, and
Kinsella. After review, it chose to credit the testimony of Schultheis
and Kinsella because they "had nothing to gain from the outcome of
the proceeding," while declining to credit Lexner, a union organizer,
and Mr. Griffin, each of whom had a stake in the result. Order at 14.
Secondly, the evidence reflects that the Board acted reasonably,
and in accordance with the Act, in concluding that Griffin Electric
had engaged in a litany of unfair labor practices. See Grinnell Fire
Prot. Sys. Co. v. NLRB, 236 F.3d 187, 195 (4th Cir. 2000). For exam-
ple, the Board concluded that Griffin Electric violated § 8(a)(1) when
Mr. Griffin equated signing a union authorization card to "stabbing
him in the back." Before reaching this conclusion, it considered the
testimony of several witnesses, including Mr. Griffin; it explained the
rationale underlying its credibility determinations; and it assessed the
likely impact of Mr. Griffin’s statement on the willingness of employ-
ees to exercise their rights under the Act. Only after conducting this
analysis, and after considering the emphasis that Mr. Griffin placed
on loyalty, did the Board conclude that Mr. Griffin’s statement could
reasonably be understood as a threat. Because Griffin Electric has
GRIFFIN ELECTRIC v. NLRB 9
failed to establish any misconduct on the part of the Board, we see
this contention as groundless.
B.
Griffin Electric next contends that the Board erred in concluding
that its Project Foremen were agents of the company, thereby render-
ing their statements and actions attributable to it. If Griffin Electric
were correct in this contention, then several of the unfair labor prac-
tices found by the Board would be unsupported by substantial evi-
dence and therefore erroneous. We, however, agree with the Board’s
analysis, and we thus reject Griffin Electric’s contention.
Under the Act, it is not necessary for a person to possess actual
authority in order for an agency relationship to exist. See N.L.R.B. v.
Local Union 1058, United Mine Workers of Am., 957 F.2d 149, 152
(4th Cir. 1992) (stating that "[s]ection 2(13) of the Act provides that
actual authority is not determinative of agency"). Instead, the Act
"simply incorporates the common law of agency, including the con-
cepts of implied and apparent authority." Id. (citing Mullett v.
N.L.R.B., 571 F.2d 1292 (4th Cir. 1978)). And we have recognized
that "[a]pparent authority is created through a manifestation by the
principal to a third party that supplies a reasonable basis for the latter
to believe that the principal has authorized the alleged agent to do the
acts in question." Id. (citations omitted).
In this case, the Board determined that "[t]he overwhelming weight
of the evidence . . . establishes that . . . [the] [F]oremen are agents of"
Griffin Electric. Order at 4. In support of this determination, the
Board found, inter alia, that the Project Foremen:
• are generally the only representative of Griffin Electric
at a job site;
• regularly interact with subcontractors;
• coordinate the work of Griffin Electric employees at a
job site;
• conduct regular safety meetings with employees;
10 GRIFFIN ELECTRIC v. NLRB
• collect time sheets, leave requests, and other paperwork,
and they transmit this paperwork to the main office;
• evaluate the performance of employees and crews; and
• inform Project Managers of violations of work rules.
Based on the findings, the Board concluded that Griffin Electric "em-
ployees would reasonably believe that their foreman was acting on
behalf of management with respect to . . . [his] communications or
instructions relating to their work or [Griffin Electric’s] policies and
procedures." Id. Because the Board’s conclusions are reasonable, and
because its findings are supported by substantial evidence, there is no
error in its conclusion that Griffin Electric’s Project Foremen were
agents of the company and that their statements and acts were attrib-
utable to Griffin Electric.
IV.
For the foregoing reasons, we deny Griffin Electric’s petition for
review, and we grant the Board’s cross-application for enforcement
of its Order.
PETITION FOR REVIEW DENIED AND
CROSS-APPLICATION FOR ENFORCEMENT GRANTED