                             UNPUBLISHED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Enforcement granted by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




                                     2
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


                                  3
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



                                      4
     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.



                                         5
                                      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).


                                       6
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


                                         7
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


                                    8
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.


                                     9
     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.


                                   10
     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


                                 11
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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