The 3-E Company v. NLRB

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2343
THE 3-E COMPANY, INC.,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Cyr, Circuit Judge.
Malcolm E. Morrell, Jr., with whom Michael A. Duddy and
Eaton, Peabody, Bradford & Veague, P.A., were on brief for
appellant.
Joseph J. Jablonski, Jr., Attorney, National Labor Relations
Board, with whom Frederick L. Feinstein, General Counsel, Linda
Sher, Acting Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Howard E. Perlstein, Deputy
Assistant General Counsel, National Labor Relations Board, were
on brief for appellee.
June 3, 1994
Per Curiam. In this action, the International
Brotherhood of Electrical Workers, Local Union #567 ("the Union")
alleged that The 3-E Company ("3-E") engaged in unfair labor
practices. After a hearing, an administrative law judge ("ALJ")
found that a 3-E supervisor interfered with and coerced employees
in the exercise of their protected right to organize, in
violation of 8(a)(1) of the National Labor Relations Act ("the
Act"). 29 U.S.C. 158(a)(1). The National Labor Relations
Board ("NLRB") subsequently issued a final order affirming the
ALJ's findings and adopting its recommended order. 3-E now
petitions this Court for review of the NLRB's final order. The
NLRB has also filed a cross-application, seeking enforcement of
its order. We deny 3-E's petition for review, and grant the
NLRB's cross-application for enforcement against 3-E.
BACKGROUND
The record supports the NLRB's finding of the following
facts. See Cumberland Farms, Inc. v. N.L.R.B., 984 F.2d 556, 558
(1st Cir. 1993). 3-E is an electrical contractor that does
commercial and industrial projects throughout the State of Maine.
In December 1990, 3-E began work on a Sam's Warehouse store ("the
Project"). James Lamson was vice-president of 3-E's southern
division, and in charge of the Project. Paul Werner was the
foreman for the Project. Werner supervised the daily work of
employees on the Project. His responsibilities included watching
equipment, keeping track of what work each employee performed
each day, and completing daily labor reports charting the
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progress of the Project.
In March 1991, 3-E hired Charles Campbell to work full-
time as an electrician on the Project. Campbell was not then a
member of the Union. In early April 1991, Lamson hired
additional electricians, including Elliot Tonken, to work on the
Project. Lamson knew that Tonken was a member of the Union, and
Tonken made no attempt to hide his Union membership.
In April, Tonken had numerous conversations about the
Union with Campbell, and with employees Ed Hevey, Roger Hicks,
and Paul Lavelle. In mid to late April, Werner noticed that
Campbell was talking to Tonken during a break. As their
conversation ended, Werner approached Campbell and, in the
presence of Hevey and Hicks, asked Campbell if Tonken was talking
to him about the Union. Campbell replied that he was. Werner
then told Campbell that he did not like the idea that Tonken was
talking about the Union on the Project site, and that when there
was a layoff, Tonken would be one of the first to be laid off.
Werner also showed Campbell a notebook he kept, containing the
names of the first group of employees who would be laid off:
Tonken, Hevey, Hicks and Lavelle.
On or about April 25, 1991, Werner approached Tonken
and asked him whether he belonged to the Union. Tonken gave an
affirmative response. Werner then asked Tonken if he was there
to cause trouble. Tonken replied that he was not, he was just
there to do his job. A week or two later, Werner asked Tonken
what the Union was like. In reply, Tonken expressed his views
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regarding the Union.
Later in May 1991, 3-E laid off Tonken, as well as
Hevey, Hicks and Lavelle. In July 1991, Campbell was transferred
to another jobsite. Campbell continued to work for 3-E until
September 1991.
Based on these events, the Union alleged that 3-E
engaged in unfair labor practices. The NLRB subsequently issued
a complaint and initiated hearings regarding allegations that a
3-E supervisor interfered with and coerced employees in the
exercise of their protected right to organize in violation of
8(a)(1) of the Act. The ALJ found the allegations to be true and
recommended that 3-E be ordered to cease and desist from its
unfair labor practices and to post notices stating it would no
longer interrogate or threaten employees. The NLRB then issued a
final order on November 22, 1993, affirming the ALJ's findings
and adopting the recommended order.
3-E challenges the findings of the NLRB, claiming in
large part that the findings are unsupported by substantial
evidence on the record. We disagree.
STANDARD OF REVIEW
We uphold a NLRB finding that the Act has been violated
as long as the finding is supported by substantial evidence on
the record as a whole, even if we would have reached a different
conclusion. 29 U.S.C. 160(e) and (f); Cumberland Farms, 984
F.2d at 559.
WAS THE NLRB'S FINAL ORDER SUPPORTED BY SUBSTANTIAL EVIDENCE?
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The Act guarantees employees the right "to form, join,
or assist labor organizations . . . and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection . . . ." 29 U.S.C. 157.
Section 8(a)(1) of the Act implements this guarantee by making it
an unfair labor practice for an employer "to interfere with,
restrain, or coerce employees" in the exercise of the above
mentioned rights. 29 U.S.C. 158(a)(1). An employer violates
8(a)(1) by coercively interrogating employees about their union
activities or sentiments, or about the activities or sentiments
of others, and by either directly or indirectly threatening
employees. See Cumberland Farms, 984 F.2d at 559; N.L.R.B. v.
Otis Hospital, 545 F.2d 252, 256 (1st Cir. 1976). Whether an
employer's actions are coercive depends on the entire factual
context in which the actions occur. Cumberland Farms, 984 F.2d
at 559.
Substantial evidence on the record supports the NLRB's
conclusions that 3-E violated 8(a)(1) of the Act. The record
supports the finding that Werner, employed by 3-E as a foreman
with supervisory responsibilities, interrogated Campbell, and
later Tonken, about their union activities. Werner questioned
Campbell about discussions he had with Tonken regarding the
Union, and indicated that he disapproved of such discussions on
the jobsite. Werner also asked Tonken whether he was a member of
the Union, and whether Tonken had come to work for 3-E to cause
trouble. Moreover, Werner threatened Campbell and Tonken with
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layoffs or unspecified reprisals because of their Union
activities. Werner substantiated his threat of layoff by
showing Campbell a notebook, containing a list of soon-to-be-
laid-off-employees: Tonken, Hevey, Hicks and Lavelle. These
facts, considered in the context in which the statements were
made and the actions taken, support the conclusion that under the
totality of the circumstances, 3-E interfered with and coerced
employees in the exercise of their protected right to organize in
violation of 8(a)(1) of the Act.
To a large extent, the ALJ arrived at his conclusion by
crediting the testimony of Campbell and Tonken, and giving little
weight to the testimony of Werner. An ALJ's credibility
determinations are entitled to great weight because he saw and
heard the witnesses testify. Holyoke Visiting Nurses Ass'n. v.
N.L.R.B., 11 F.3d 302, 308 (1st Cir. 1993) (citations omitted).
A reviewing court will not disturb such findings so long as the
ALJ's position represents a choice between two fairly conflicting
views, even if this Court would have made a different choice had
the matter come before it de novo. Id. We will only set aside
findings if we believe that the ALJ overstepped the bounds of
reason. Id. Here, we find no basis to disturb the ALJ's
reasoned credibility determinations. We also do not believe that
the ALJ transgressed the bounds of reason in any other respect.
The record also supports the finding that 3-E was bound
by the acts and statements of Werner. "In determining whether
any person is acting as an 'agent' of another person so as to
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make such other person responsible for his acts, the question of
whether the specific acts performed were actually authorized or
subsequently ratified shall not be controlling." 29 U.S.C.
152(13). Rather, in this labor context, courts utilize a liberal
agency analysis, emphasizing such factors as a supervisor's
"apparent authority." N.L.R.B. v. Schroeder, 726 F.2d 967, 971
(3d Cir. 1984). An employer is generally held responsible for
the statements or conduct of its supervisors when employees would
have just cause to believe that a [supervisor] was acting for and
on behalf of the company. Ballou Brick Co. v. N.L.R.B., 798 F.2d
339, 347 (8th Cir. 1986); Schroeder, 726 F.2d at 971; Proctor &
Gamble Mfg. Co. v. N.L.R.B., 658 F.2d 968, 984 n.18 (4th Cir.
1981) (quoting N.L.R.B. v. Texas Indep. Oil. Co., 232 F.2d 447,
450 (9th Cir. 1956), cert. denied, 459 U.S. 879 (1982); see also
N.L.R.B. v. Garland Corp., 396 F.2d 707, 709 (1st Cir. 1968) (in
dicta, stating that employers are liable for the conduct of
supervisors where employees have reason to think that supervisors
are acting on behalf of employers).
3-E admits that Werner was a "supervisor" within the
meaning of 29 U.S.C. 152(11). The evidence also supports the
conclusion that employees reasonably believed that Werner acted
on behalf of 3-E with respect to labor and employment matters.
Werner was 3-E's only foreman on the Project site, and he
exercised broad daily supervisory authority over the workers.
Moreover, on occasion, Werner specifically suggested to employees
that he had input into 3-E layoff decisions, and that he did not
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look favorably upon union activities. For instance, Werner told
Campbell that he did not think Tonken should be talking about the
Union on the Project site, and that Tonken would be one of the
first employees laid off. Additionally, 3-E did not proffer
evidence which established that despite Werner's supervisory
status, employees had notice that Werner was not authorized to
speak on behalf of 3-E, or that employees reasonably should have
known that Werner did not possess such authority. We therefore
uphold the finding attributing Werner's statements and actions to
3-E.1
We have considered 3-E's other arguments and conclude
that they lack merit. We believe that the ALJ's findings,
adopted by the NLRB, are supported by substantial evidence in the
record. The petition for review is denied, and the NLRB's
request for enforcement of its order is granted.
1 The NLRB properly disavowed the ALJ's discussion concerning
whether Werner was specifically authorized by 3-E to make
statements or take actions which interfered with employees' union
activities as the controlling principle in determining whether
Werner's actions were attributable to 3-E. 29 U.S.C. 152(13)
specifically provides that such analysis shall not be
controlling. Despite 3-E's contention to the contrary, the NLRB
did not then simply irrebuttably attribute the statements and
actions of Werner to 3-E. Rather, the NLRB did not disclaim, and
thus accepted, the ALJ's findings demonstrating that Werner had
apparent authority to act on behalf of 3-E. This finding by the
ALJ was supported by substantial evidence in the record.
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