
USCA1 Opinion

	




                            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                                      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                                         -2-          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                                         -3-          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                                  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?            WAS THE NLRB'S FINAL ORDER SUPPORTED BY SUBSTANTIAL EVIDENCE?            ____________________________________________________________                                         -4-                    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                                         -5-          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                                         -6-          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                                         -7-          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.                                         -8-
