UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1424
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
ANNALEE GRIFFIN, d/b/a North Carolina License
Plate Agency #18,
Respondent.
On Application for Enforcement of an Order of the National Labor
Relations Board. (11-CA-20479)
Argued: March 12, 2007 Decided: June 20, 2007
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Enforcement granted by unpublished per curiam opinion.
ARGUED: Philip Marshall Van Hoy, VAN HOY, REUTLINGER, ADAMS & DUNN,
Charlotte, North Carolina, for Respondent. William M. Bernstein,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.
ON BRIEF: G. Bryan Adams, III, VAN HOY, REUTLINGER, ADAMS & DUNN,
Charlotte, North Carolina, for Respondent. Ronald Meisburg,
General Counsel, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Meredith L. Jason, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The National Labor Relations Board seeks to enforce an order
for reinstatement, damages, and other relief for three employees
terminated from a license plate agency in Goldsboro, North
Carolina. The Board found that the terminations violated § 8 of
the National Labor Relations Act (“NLRA” or “the Act”), as an
unfair labor practice in abridgement of the employees’ right to
engage in protected concerted activities under § 7 of the Act. The
employer argues that the employees were not engaged in protected
activity and that they were dismissed for disloyalty and poor
performance. We find these contentions to be without merit and
grant the application for enforcement.
I.
North Carolina License Plate Agency #18 (“the Company”) is a
private contractor for the state of North Carolina. The Company
provides motor vehicle registration and license plate services to
the public and is compensated by the North Carolina Department of
Motor Vehicles (“DMV”) on a per-transaction commission basis.
Annalee Griffin is sole proprietor of the Company. At the
beginning of 2004, the Company had five full-time employees:
assistant manager Kerry Haddock; title specialists Robin Haybarker,
Karen Michelle Haybarker, and Laura Schilling; and renewal clerk
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Julie Wells. The Haybarkers are husband and wife. Schilling and
Wells are Griffin’s daughters.
In early 2004, Haddock and the Haybarkers experienced problems
at work. They alleged that their workload increased owing to the
work habits of their co-workers Wells and Schilling. They alleged
that Wells and Schilling would frequently call in late, leave
early, and miss work altogether; that Wells would fall asleep at
her desk; and that Schilling would bring her children to the office
at least once a week, where they would play in the employees’ cash
drawers, draw pictures on their work stations, and be disruptive.
On April 13, 2004, Haddock and the Haybarkers had a formal
thirty-minute meeting with Griffin about these issues. They
expressed their concerns that the situation increased their own
workload and was indicative of a “separate set of rules” in the
office for Griffin’s children. In response, Griffin stated that
Wells was on medication and promised to speak to her. Before and
after the April 13 meeting, the Haybarkers also brought complaints
to DMV Field Auditor and Supervisor Cindy Jobe, whose territory
includes the Company. In June 2004, Griffin terminated Wells.
On August 12, 2004, Griffin asked to meet with Haddock and the
Haybarkers after work. She began the meeting by stating that,
although the Haybarkers had arranged to take off the following day,
Friday, August 13, they could not both do so. Later in the
conversation, Robin Haybarker renewed the employees’ work-related
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complaints. He stated that Schilling’s conduct continued to be an
issue and that office morale remained low. Haybarker additionally
stated that the employees were upset that they had received only a
small raise and no bonus. Finally, Haybarker said that he had
raised these concerns with Field Auditor/Supervisor Jobe and that
he was considering filing a complaint with the DMV. Michelle
Haybarker nodded in agreement, and Haddock indicated that she too
had considered filing a complaint with the state.
After listening to the employees’ complaints, Griffin went to
her office and returned almost immediately with paychecks for the
three employees. When Robin Haybarker asked why his check was only
for four days, Griffin told the Haybarkers that it was their last
day and asked for their keys. After the Haybarkers left the
office, Griffin told Haddock that she had not performed
satisfactorily as assistant manager and discharged her as well.
On August 20, 2004, Griffin wrote a letter to the North
Carolina Employment Security Commission (“ESC”) challenging
applications for unemployment compensation filed by Haddock and the
Haybarkers. Regarding Griffin’s reasons for discharging the three
employees, the letter stated,
[T]hese three were very critical of my leadership, my
management style, their salaries, and generally
dissatisfied with how the office was functioning. During
this [August 12] conversation it became obvious that they
did not have my best interest or the best interest of the
office at heart. Based on this conversation and their
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accusations it was obvious to me that I had no other option
but to terminate their employment.
The letter also stated that Haddock had “exacerbated the problem by
joining in with the other two employees.” Id. During a later ESC
hearing, Griffin testified that it was during the August 12
conversation that she made a final decision to terminate Haddock
and the Haybarkers.
Acting on a charge filed by Robin Haybarker on September 13,
2004, the NLRB General Counsel issued a complaint alleging that the
Company violated § 8(a)(1) of the NLRA by discharging the three
employees for engaging in activity protected by the Act. Following
a hearing, Administrative Law Judge John H. West found that the
employees’ discharge had violated § 8(a)(1). On January 25, 2006,
the NLRB issued a Decision and Order affirming the ALJ’s rulings,
findings, and conclusions, and adopting his recommended Order. The
Board found (1) that the employees engaged in protected concerted
activity; (2) that Griffin’s animus toward this activity was a
reason for the dismissals; (3) and that the Griffin did not
establish that the employees would have otherwise been discharged.
The Board ordered the Company to offer Haddock and the Haybarkers
reinstatement, make them whole for any loss of earnings and
benefits, and remove from its files any reference to their
discharges. The case is before this court on the application of
the NLRB to enforce the order.
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II.
Section 7 of the NLRA protects the right of employees to self-
organize; to form, join, or assist labor organizations; to bargain
collectively; and to “engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157 (2000). Section 8(a)(1) makes it
unlawful for employers “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [§ 7].” Id.
§ 158(a)(1).1
In considering whether an employee’s discharge violates the
Act, there must be a showing “(1) that the employee was engaged in
protected activity, (2) that the employer was aware of the
activity, and (3) that the protected activity was a substantial or
motivating factor for the employer’s action.” RGC (USA) Mineral
Sands, Inc. v. NLRB, 281 F.3d 442, 448 (4th Cir. 2002); see Wright
Line, 251 N.L.R.B. 1083 (1980). Once a prima facie case of a
violation is established, the burden then shifts to the employer to
1
We required supplemental briefing on the matter of the NLRB’s
jurisdiction and appreciate the parties’ submissions. The Supreme
Court has held that the NLRA vests the Board with “the fullest
jurisdictional breadth constitutionally permissible under the
Commerce Clause.” See NLRB v. Reliance Fuel Oil Corp., 371 U.S.
224, 226 (1963). We conclude that, in the context of a business
dealing with motor vehicle licensing and registration procedures,
the requisite connection to interstate commerce exists. See United
States v. Cobb, 144 F.3d 319, 322 (4th Cir. 1998) (recognizing
power of Congress to regulate motor vehicles as instrumentalities
of interstate commerce).
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show that it would have taken the same action absent the protected
activity. See RGC, 281 F.3d at 448. If the reasons the employer
advances for its actions are nonexistent or pretextual, the
employer’s burden is not met, and its defense fails. See NLRB v.
Air Contact Transp., Inc., 403 F.3d 206, 215 (4th Cir. 2005). On
review, this court must uphold the Board’s findings if they are
“supported by substantial evidence on the record considered as a
whole.” 29 U.S.C. § 160(e) (2000).
A.
The Company first argues that the employees’ discharge did not
violate the Act because they were not engaged in protected
concerted activity as defined by § 7. Rather, Robin Haybarker was
speaking solely for his personal benefit when he raised workplace
concerns.
“Concerted” activities include “the activities of employees
who have joined together in order to achieve common goals.” NLRB
v. City Disposal Sys. Inc., 465 U.S. 822, 830 (1984). Section 7’s
safeguard of concerted activities undertaken for “mutual aid and
protection” extends “even to activities that do not involve unions
or collective bargaining.” Medeco Sec. Locks, Inc. v. NLRB, 142
F.3d 733, 746 (4th Cir. 1998); see NLRB v. Wash. Aluminum Co., 370
U.S. 9, 14 (1962). The Supreme Court has recognized that § 7 does
not protect all concerted activities: it does not protect, for
instance, unlawful or violent acts, acts in breach of contract, or
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acts of disloyalty against the employer. Wash. Aluminum Co., 370
U.S. at 17. But apart from such exceptions, § 7 has a wide
compass, providing general protection to workers’ efforts to
“improve their lot as employees.” Eastex, Inc. v. NLRB, 437 U.S.
556, 565 (1978).
We affirm the Board’s conclusion that the employees were
engaged in protected concerted activity in this case. The three
approached Griffin as a group on April 13 to bring workplace
problems to her attention. The problems persisted, however,
culminating in the August 12 meeting. The complaints raised at the
August 12 meeting -- complaints about “favoritism, wages, and
bonuses” -- involve the type of workplace issues that § 7 enables
employees to address. See, e.g., Eastex, 437 U.S. at 565. As the
Board found, the employees were also engaging in protected activity
when they considered taking these same complaints to the DMV. See
id. (protected activity includes efforts to improve workplace
conditions “through channels outside the immediate employee-
employer relationship”).
Moreover, contrary to the Company’s contentions, there is no
indication that Robin Haybarker acted alone in furtherance of
personal goals. Rather, substantial evidence supports the Board’s
conclusion that the employees worked together and that Robin
Haybarker undertook to speak for the other employees, who were
present with him at the meeting and who expressed agreement with
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his representations and his proposal to contact the DMV. Indeed,
Griffin’s August 20 letter to the North Carolina ESC states that,
at the August 12 meeting, “these three were very critical” about
working conditions and that Haddock “exacerbated the problem by
joining in with the other two employees.”2
Thus, Haddock and the Haybarkers were involved in protected
concerted activity.
B.
The Company next contends that, even if the employees were
engaged in protected concerted activity, their discharge did not
violate § 8(a)(1), because the discharges were not motivated by the
protected activity. We find, however, that substantial evidence
supports the Board’s conclusion that employees’ protected activity
was a “substantial or motivating reason” for their terminations.
See Medeco, 142 F.3d at 742. Griffin’s own letter to the North
Carolina ESC demonstrates as much. Explaining why Griffin
discharged the three employees, the letter states:
[T]hese three were very critical of my leadership, my
management style, their salaries, and generally
dissatisfied with how the office was functioning. During
this [August 12] conversation it became obvious that they
did not have my best interest or the best interest of the
2
The Company contends that the ALJ and the Board erred in
admitting Griffin’s letter and testimony from the North Carolina
ESC proceeding because they were privileged under state law. We do
not think the Board erred, however, in declining to allow a state
evidentiary privilege to trump the need for relevant and probative
evidence in this federal proceeding.
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office at heart. Based on this conversation and their
accusations it was obvious to me that I had no other
option but to terminate their employment.
This letter makes clear that, contrary to the Company’s current
contentions, the decision to terminate Haddock and the Haybarkers
was made during the August 12 meeting and in significant part in
response to the employees’ protected activity. In addition, on
October 7, Griffin testified at an ESC hearing that it was during
the August 12 conversation that she made a final decision to
discharge the three employees. The Board also properly found that
the timing of the dismissals, immediately following the employees’
threat to file a complaint, provided strong independent evidence
that their protected activity motivated their dismissals. Thus we
uphold the Board’s conclusion that the employees’ protected
activity was a substantial or motivating factor in their
dismissals.
C.
The Company finally contends, as an affirmative defense, that
even if the employees were dismissed in part for their protected
activity, no violation of the Act occurred because Griffin would
have dismissed them in any case for reasons of poor performance and
disloyalty. In particular, the Company claims that the employees
were planning to open a competing license plate agency. The
Company bore the burden of proving this affirmative defense. See
RGC, 281 F.3d at 448.
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The Company had a full opportunity to present this alternative
account of the firings before the ALJ. The Company’s account was
based almost entirely upon Griffin’s uncorroborated testimony. The
ALJ, however, found that “Annabelle Griffin was not a credible
witness” and discredited her testimony except where corroborated by
reliable evidence. Because the ALJ is best positioned to evaluate
the credibility of the witnesses, this court will overturn Board
findings based on an ALJ’s credibility determinations only when
“exceptional circumstances” compel reversal. NLRB v. CWI of
Maryland, Inc., 127 F.3d 319, 326 (4th Cir. 1997).
The Company points to no such exceptional circumstances in
this case. As the ALJ found and the Board affirmed, the claim that
Griffin was planning on firing Haddock and the Haybarkers prior to
the August 12 meeting is belied by a number of facts. For one, the
employees had received no verbal or written warnings about their
alleged poor job performance. Also, while Griffin claims that she
resolved to fire the employees after the Haybarkers missed work on
April 30, by August 12 more than three months had passed with no
action on Griffin’s part. Further, the fact that Griffin began the
August 12 meeting by telling the Haybarkers that they had to come
to work the next day undermines her claim that she called the
meeting for the purpose of firing them.
As to the allegation that the three employees were planning to
open a competing license plate agency, the ALJ found that there was
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no evidence that this was the case or that it caused the
dismissals. Field Auditor/Supervisor Jobe in her affidavit stated
that Robin Haybarker had never said that he was seeking to open
such an office but had merely asked her what it would take to open
one. Jobe further stated that she had told Haybarker that an
application to open another agency would not be approved. In any
case, as the ALJ found and the Board affirmed, during the August 12
meeting Griffin confronted the employees about Haybarker’s question
to Jobe without bringing up possible termination in that context.
It was only later, when the employees said that they were
considering bringing a complaint with the DMV, that Griffin
terminated them. Thus the Board properly discredited the assertion
that the employees’ alleged disloyalty would have led to their
dismissal.
III.
For the foregoing reasons, we grant the Board’s application
for enforcement of its order.
ENFORCEMENT GRANTED
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