
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1992                              ACME TILE AND TERRAZZO CO.                            AND ROMAN TILE & TERRAZZO CO.,                                     Petitioners,                                          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, Chief Judge,                                          ___________                          Cummings* and Cyr, Circuit Judges.                                             ______________                                _____________________               Girard R. Visconti, with  whom Visconti & Boren Ltd.  was on               __________________             _____________________          brief for petitioners.               Corinna  L.  Metcalf,  Attorney,  National  Labor  Relations               ____________________          Board, with  whom Frederick L. Feinstein,  General Counsel, Linda                            ______________________                    _____          Sher,  Associate  General Counsel,  Aileen  A.  Armstrong, Deputy          ____                                _____________________          Associate General   Counsel,    Charles   Donnelly,   Supervisory                                          __________________          Attorney, and Joseph J.  Jablonski, Jr., Attorney, National Labor                        _________________________          Relations Board, were on brief for respondent.                                 ____________________                                    June 25, 1996                                 ____________________                                        ____________________          *  Of the Seventh Circuit, sitting by designation.                    CUMMINGS, Circuit  Judge.  The present  controversy has                    CUMMINGS, Circuit  Judge.                              ______________          been before this Court once before.  It arises out of the actions          of various employers alleged to have violated the  National Labor          Relations  Act, 29  U.S.C.    151  et  seq. ("Act").    The Board                                             ________          originally  found   that  the  employers  violated   the  Act  by          conditioning  continued   employment  on  union   membership  and          terminating  employees who failed to join the union.  We remanded          to the  Board to make additional  findings.  NLRB v.  Acme Tile &                                                       ____     ___________          Terrazzo Co., 984  F.2d 555 (1st Cir. 1993).   After doing so, it          ____________          reached the same conclusion.   Satisfied that the Board  made the          necessary  additional  findings  and  that  those   findings  are          supported  by substantial evidence, we now  hold that the Board's          order should be enforced.                                          I.                    Acme Tile  and Terrazzo Co. and Roman Tile and Terrazzo          ("Companies")  are  members  of  the  Ceramic  Tile,  Marble  and          Terrazzo   Contractors   Association   of   Rhode   Island  Corp.          ("Association"),   a   multi-employer  association   representing          contractors headquartered  in Rhode  Island.  The  Association is          the  authorized  collective  bargaining  representative   of  the          Companies.  The Companies  employ both "finishers" and "setters."          Until  December 1988, the finishers  were represented by Local 36          of the  Tile, Marble,  Terrazzo Finishers, Shopworkers  & Granite          Cutters  International Union ("Local 36").  Local 36 was party to          various pre-hire agreements with the Association, the most recent          of which  was effective  April 1, 1988, through  March 31,  1989.                                         -2-          The setters  were represented  by  Local 1  of the  International          Union  of  Bricklayers  and  Allied  Craftsmen  of  Rhode  Island          ("Bricklayers Union").   The  Association and the  Companies were          also  parties  to  collective  bargaining  agreements   with  the          Bricklayers  Union, the most recent of which was effective May 1,          1988, through April 30, 1990.                    In 1988, Local 36's International Union affiliated with          the International Brotherhood of Carpenters  ("Carpenters Union")          and  Local 36 was newly designated "Local 36-T" of the Carpenters          Union.    A  struggle  between  the  Bricklayers  Union  and  the          Carpenters Union  ensued.  In  early 1989, David  Barricelli, the          Bricklayers Union  Business Manager, approached  Local 36-T about          merging  into  Local   1  of  the  Bricklayers  Union.    Without          assurances that their local would retain its autonomy, Local 36-T          rejected  the  proposal.   Attempting  to  "change their  minds,"          Barricelli met with Local 36-T members in February 1989.  He told          them that  if they did  not join the Bricklayers  Union, he would          speak  to  the  local  bricklayer  unions  in  Massachusetts  and          Connecticut and  tell them  that  the Local  36-T finishers  were          carpenters  and  should  not  be   permitted  to  work  in  those          jurisdictions.     The  members  were  unpersuaded.    Barricelli          subsequently wrote the  local bricklayer unions and asked them to          replace the  finishers represented  by the Carpenters  Union with          helpers  belonging to the Bricklayers  Union.  He  sent copies of          the letters to the Companies.                                         -3-                    On March  29, 1989,  the Association members  signed an          addendum to its contract with  the Bricklayers Union covering the          tile  finishers; the  addendum  became effective  April 1,  1989.          Representatives of  the Companies  were told that  Barricelli was          claiming  jurisdiction   over  all  finishers'   work  and   that          Bricklayer Union setters would not work with the Carpenters Union          after  March 31, 1989.  Thus  it appears that  the Companies felt          some compulsion to sign  the addendum to ensure that  the setters          would  not strike.    The agreement  that  the addendum  modified          contained a union security  clause, which required that employees          of the  Association's members  become members of  the Bricklayers          Union within eight days of the agreement's execution.                    After  signing the addendum with the Bricklayers Union,          the Association and the Companies  notified Local 36-T that  they          were terminating their collective bargaining agreement with Local          36-T.   Furthermore, the Companies notified  their employees that          they would have  to contact the Bricklayers Union  business agent          and be  referred by the Bricklayers Union to be permitted to work          on Monday, April 3, 1989.  None of the finishers  showed for work          that  day and the Companies replaced them with finishers from the          Bricklayers Union.                    Local 36-T filed unfair  labor practice charges against          the Companies,  alleging that the Companies  forced the finishers          to join  the Bricklayers  Union, contributed unlawful  support to          the Bricklayers  Union,  and terminated  their employees  because          they  refused to join the  Bricklayers Union.   In April 1991, an                                         -4-          administrative law judge issued a decision and recommended order,          concluding that the Companies  had not violated the Act.  The ALJ          found  that the Companies told  the employees on  March 31, 1989,          that  they had to secure a referral from the Bricklayers Union by                                     ________          April 3 if they wanted  to continue working.  The  National Labor          Relations  Board ("Board")  reversed  the ALJ,  holding that  the          Companies had committed unfair  labor practices.  In  so holding,          the  Board erroneously stated that the ALJ had credited testimony          that on March 31  the Companies required their employees  to join                                                                       ____          the union  by April 3.   The Board ordered that  the employees be          reinstated and compensated.                    The Board thereafter sought enforcement in this  Court.          We  noted  that the  Act requires  a  seven-day grace  period for          employees   to   join   an  employer-recognized   union   in  the          construction industry.   29 U.S.C.    158(f).   Thus only if  the          Companies required the employees to join  the union by April 3 --                                              ____          two days  into that grace  period --  did they  violate the  Act.          Despite the existence of testimony  that could have supported the          Board's conclusion, it relied instead on an erroneous reading  of          the  ALJ's opinion,  as noted  above.   We therefore  vacated the          Board's order  and remanded "for  a determination of  whether the          employers   explicitly   or   implicitly  conditioned   continued          employment on immediate membership in the Union."  Acme Tile, 984                                                             _________          F.2d at 556.                    The   Board  remanded   the   case  to   the  ALJ   for          clarification.  The ALJ reaffirmed its original decision that the                                         -5-          Companies  did not  violate the Act,  and the  Board subsequently          reversed.    The  Board  concluded that  the  Companies  violated          Section 8(a)(1) and (2) of the  Act, 29 U.S.C.   158(a)(1) & (2),          by   conditioning   continued  employment   on   immediate  union          membership in derogation of  the seven-day grace period contained          in Section 8(f), 29 U.S.C.   158(f).  It also  concluded that the          Companies violated Section 8(a)(3) and (1), 29 U.S.C.   158(a)(3)          & (1),  of the Act by  discharging employees who refused  to join          the  union.    The  Board  again  ordered,  among  other  things,          reinstatement with backpay.  This appeal followed.                                         II.                    We  will enforce  an  order by  the  Board only  if  it          correctly  applied  the law  and  if  its  factual  findings  are          supported  by  substantial  evidence  on the  record.    Penntech                                                                   ________          Papers,  Inc. v.  NLRB,  706 F.2d  18,  22-23 (1st  Cir.),  cert.          _____________     ____                                      _____          denied, 464 U.S. 892 (1983).   The Act grants employees the right          ______          to "form,  join, or  assist labor organizations"  and to  refrain          from such activity, 29 U.S.C.   157, and makes it an unfair labor          practice for  employers to  "interfere with, restrain,  or coerce          employees  in the  exercise"  of  those  rights.    29  U.S.C.             158(a)(1).     The  Act  specifically  prohibits  employers  from          discriminating  "in regard to hire or tenure of employment or any          term  or  condition  of  employment to  encourage  or  discourage          membership in  any labor organization."   29 U.S.C.    158(a)(3).          The Act makes an exception to this broad prohibition that permits          an employer  to enter certain union  security contracts requiring                                         -6-          union  membership  as a  condition of  employment.   29  U.S.C.            158(a)(3) (proviso).  But this exception is itself limited by the          Act:  a union security agreement in the construction industry may          only require  union membership  "after the seventh  day following          the beginning of  such employment  or the effective  date of  the          agreement, whichever is  later."   29 U.S.C.   158(f).   Thus  an          employer commits an  unfair labor  practice if  it terminates  an          employee  during the seven-day  grace period for  failure to join          the  union despite  the  existence of  an  otherwise valid  union          security agreement.   In  addition,  an employer  who coerces  an          employee into joining  a union  may also commit  an unfair  labor          practice under 29 U.S.C.    158(a)(2) if the coercion  amounts to          unlawful "support" for that union.                    The   Board  concluded  that   the  Companies  violated          Sections  158(a)(1), (2), and (3).   Key to  that conclusion, and          contrary  to the ALJ's decision, was its factual finding that the          Companies  "implicitly  conditioned  their  employees'  continued          employment on  immediate  membership in  the Bricklayers  Union."          318 N.L.R.B. No. 47, 1995 WL 496836.  The Board reasoned that the          Companies'  requirement that  the employees obtain  a "referral,"          "approval,"  or  "clearance" from  the  union  was tantamount  to          requiring  immediate   membership  in  the  union,   because  the          employers'  statements  would  "reasonably  and  foreseeably lead          their  employees to  believe that  membership in  the Bricklayers          Union by April 3 was required in order to continue working."  Id.                                                                        ___                                         -7-                    The Companies initially contend  that the Board did not          comply  with this  Court's remand  instruction from  the original          appeal.  On remand, we required the Board to make a determination          as  to  whether  the   Companies  had  explicitly  or  implicitly          conditioned continued  employment on union membership.   984 F.2d          at  556.   In  its original  opinion,  the Board  had essentially          stated  that  the Companies  made  union  membership an  explicit          condition,  but we  found that  determination to  be based  on an          erroneous reading of the ALJ's findings.  We noted that testimony          existed that  might demonstrate  an explicit condition,  but that          the Board had not relied on that testimony.  It is quite apparent          from  any fair  reading of  the Board's  latest decision  that it          complied with this  Court's remand instructions.  Deciding not to          base its  holding  on the  testimony  just mentioned,  which  was          contradicted  by  other  testimony,  the  Board  found  that  the          evidence supported  a finding  that the Companies  had implicitly          conditioned continued employment on  union membership.  The Board          complied with our remand instructions to the letter, and the only          remaining question is whether  its determination was supported by          substantial evidence.                    On  the issue  of substantial  evidence,  the Companies          first argue that  the Board  lacked any basis  for rejecting  the          ALJ's finding  that the Companies merely  advised their employees          of the procedures under the new contract rather than coerced them          into joining the Bricklayers  Union.  The ALJ concluded  that the          employers'  statements were  simply  observations of  the natural                                         -8-          consequences of the union security provision in the new  contract          and  that the  employees  were merely  informed  of how  the  new          procedures  would affect  them  when they  returned  to work  the          following  Monday.   While  it is  true  that we  afford  the ALJ          deference  on questions  of  witness credibility,  see  Universal                                                             ___  _________          Camera Corp.  v. NLRB, 340  U.S. 474, 496-497  (1951), we  do not          ____________     ____          agree with the  Companies that the  Board necessarily rejected  a          credibility determination of the ALJ to reach its conclusion, nor          would it necessarily  be dispositive  if it had.   Id.  (implying                                                             ___          that deference  to the factfinder is subsumed  in the substantial          evidence test).  The Board accepted testimony credited by the ALJ          to the  effect that the  Companies had not  expressly conditioned          continued employment  on union  membership -- that  the Companies          only required  a "referral," "approval," or  "clearance" from the          union.   In determining that even these statements amounted to an          unlawful  implicit  condition,  the Board  relied  on  additional          evidence regarding the  circumstances in  which these  statements          were  made.  The Board  did not reverse  any credibility findings          made by the ALJ.                    Furthermore, substantial evidence supports  the Board's          findings  on  the  circumstances surrounding  the  statements and          their  implicit message to the employees.  The Board first turned          to the governing contract and noted that there was no contractual          reason  why the Companies needed to require a "referral" from the          Union.  The contract provided that employers could freely hire or          reject  qualified journeymen  at a  job site.   Thus  requiring a                                         -9-          "referral" from  the Union implied that the  employees would have          to join the Bricklayers Union in order to remain on the job.  The          Board then recounted the  Bricklayers Union's ongoing campaign to          force all finishers into the Union.  Both employers and employees          were  generally aware  of  Barricelli's efforts  in this  regard,          including his  threatening letters and oral statements.  Based on          Barricelli's actions, the employees would assume that in order to          obtain  a "referral,"  they would  have  to join  the Bricklayers          Union;  the  Companies  could  reasonably  have  drawn  the  same          conclusion.   Thus viewing the  statements in the  context of the          ongoing  campaign,  the Board  had  substantial  support for  its          conclusion  that   requiring  a  "referral"   was  tantamount  to          conditioning continued employment on union membership.                    The Companies acknowledge in  their brief to this Court          that the  record evidence could  support an inference  that union          membership was necessary for continued employment, but they state          that the evidence equally supports the opposite inference -- that          union  membership was  not  necessary so  long  as the  employees          obtained   a  referral.    (Pet.  Br.  at  31).    The  Companies          misconstrue  the substantial evidence test.   Out task  is to ask          whether the Board's conclusion rests on substantial evidence, not          whether some other conclusion  is equally supportable.  Universal                                                                  _________          Camera, 340 U.S. at  488; Teamsters Local  Union No. 42 v.  NLRB,          ______                    _____________________________     ____          825 F.2d 608, 612 (1st Cir.  1987); Andino v. NLRB, 619 F.2d 147,                                              ______    ____          151 (1st Cir. 1980).  The Companies' additional argument that the          Board's  conclusions relate to two employers not involved in this                                         -10-          appeal is  also without  merit.   The  Board mentioned  testimony          specific  to those  two companies,  but the  substantial evidence          outlined above relates equally to the present Companies.                    Finally,  substantial  evidence  supports  the  Board's          finding that the Companies terminated their employees for failing          to  join the  Bricklayers  Union.   The  ALJ had  concluded  that          employees  failed to  show  up for  work  only because  of  their          loyalty  to the Carpenters  Union.  The  Board properly concluded          that  the  ALJ's finding  was  merely  speculative.   The  record          indicated that some finishers  later joined the Bricklayers Union          and  returned to  work,  undercutting the  ALJ's conclusion  that          loyalty  prevented  employees  from  working.   The  record  also          contained statements  by the Companies that  work stoppages could          occur in Massachusetts and Connecticut, where they had collective          bargaining agreements with the Bricklayers Union, if employees in          those states did  not join  the Bricklayers Union.   The  Board's          conclusion  that employees failed to show  up for work based on a          belief that  they would  not be  allowed to do  so without  first          joining  the   Bricklayers  Union  was   therefore  supported  by          substantial evidence.                                         III.                    For  the  foregoing  reasons,   the  Board's  order  is          ENFORCED.                                         -11-
