
USCA1 Opinion

	




          February 4, 1993  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1525                            NATIONAL LABOR RELATIONS BOARD,                                     Petitioner,                                          v.                             ACME TILE AND TERRAZZO CO.;                               ADMIRAL TILE CO., INC.;                             JOLICOEUR RESMINI CO., INC.                            AND ROMAN TILE & TERRAZZO CO.,                                     Respondents.                                 ____________________                     UNITED BROTHERHOOD OF CARPENTERS LOCAL 36-T,                                     Intervenor.                                 ____________________          No. 92-1595                              ACME TILE AND TERRAZZO CO.;                               ADMIRAL TILE CO., INC.;                            JOLICOEUR & RESMINI CO., INC.                            AND ROMAN TILE & TERRAZZO CO.,                                     Petitioners,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                                     Respondent.                                 ____________________                     UNITED BROTHERHOOD OF CARPENTERS LOCAL 36-T,                                     Intervenor.                                 ____________________                          ON APPLICATION FOR ENFORCEMENT AND                       CROSS-PETITION FOR REVIEW OF AN ORDER OF                          THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                          Torruella and Cyr, Circuit Judges,                                             ______________                               Keeton,* District Judge.                                        ______________                                _____________________               Girard R.  Visconti, with  whom Visconti &  Petrocelli Ltd.,               ___________________             ___________________________          were on brief for Acme  Tile and Terrazzo Co.; Admiral Tile  Co.,          Inc.; Jolicoeur & Resmini Co., Inc. and Roman Tile & Terrazzo Co.               David Habenstreit, Attorney, National Labor Relations Board,               _________________          with whom  Jerry M.  Hunter,  General Counsel,  Yvonne T.  Dixon,                     ________________                     ________________          Acting  Deputy  General  Counsel, Nicholas  E.  Karatinos, Acting                                            _______________________          Associate General Counsel, Aileen A. Armstrong,  Deputy Associate                                     ___________________          General Counsel,  and  Peter Winkler,  Supervisory Attorney, were                                 _____________          on brief for National Labor Relations Board.                                 ____________________                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    Per  Curiam.   This is  an appeal  of a  National Labor                    ___________          Relations Board (the "Board") decision that appellants, Acme Tile          and Terrazzo  Co., Roman Tile  and Terrazzo, Jolicoeur  & Resmini          Co., and Admiral  Tile Co., Inc.  (the "employers"), violated              8(a)(1),  (2), and (3) of  the National Labor  Relations Act (the          "Act"), 29 U.S.C.   151, et seq. (1973).  Specifically, the Board                                   ______          found   that   the  employers   conditioned   employees'  further          employment on  their membership  in an  employer-recognized Union          before the  statutorily required,  seven day grace  period ended.          Because we find that the Board based its decision on an erroneous          assumption,  we  vacate  the  order and  remand  for  proceedings          consistent with this opinion.                                      BACKGROUND                                      BACKGROUND                                      __________                    The employers entered a contract with the International          Union of  Bricklayers and  Allied Craftsmen,  Local  No. 1  Rhode          Island (the "Union").   The contract  required employees to  join          the Union within eight days of the agreement's execution.                      The administrative law judge  (the "ALJ") found that on          March 31, 1989, the  employers told the employees that  they must          secure a referral from the Union by April 3, 1989, two days after          the agreement's  execution, if  they wanted to  continue working,          and that the  employees would have  to join the  Union.  The  ALJ          concluded  that the employer's  actions did not  violate the Act.          On appeal, the  Board found  that the employers  did violate  the          Act.  In arriving  at this conclusion, it erroneously  noted that          the  ALJ credited testimony that on March 31, 1989, the employers                                         -3-          required their employees to  join the Union  by April 3, 1989  in                                       ____          order to  keep their jobs.   The  Board and the  ALJ agreed  that          regardless of the employer's actual words, the employees  did not          join the Union and did not work on April 3.                                      LEGAL ANALYSIS                                    LEGAL ANALYSIS                                    ______________                    We  will enforce  an order  by the  Board if  the Board          correctly  applied  the law  and if  substantial evidence  on the          record  supports  the  Board's   factual  findings.    Destiler a                                                                 __________          Serrall s,  Inc.  v. NLRB,  882 F.2d  19,  20-22 (1st  Cir. 1989)          ________________     ____          (quoting Penntech Papers, Inc.  v. NLRB, 706 F.2d 18,  22-23 (1st                   _____________________     ____          Cir. 1983)).                      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) (1973).   Thus,  if the employers          required the  employees to join  the Union by  April 3, only  two          days into that grace period, they violated the Act.                    It is unclear, however, whether substantial evidence on          the  record would support the Board's factual findings.  At least          five employees testified that the employers required them to join          the Union by April 3.  Additionally, the employers testified that          they required the employees to get  a Union referral by April  3,          and the employers presented no evidence that the Union would have          referred the employees if they refused to join the Union at  that          time.    Rather  than basing  its  factual  determination  on the          evidence presented,  however, the  Board's opinion relied  on the          incorrect  assumption  that  the  ALJ found  that  the  employers                                         -4-          required the  employees to join the  Union by April 3.   See Acme                                                                   ___          Tile and Terrazzo Co., 306 N.L.R.B. 83, at 2 (1992).  In reality,          the ALJ found that the employers required the  employees to get a          Union referral by April 3, and to join  the Union by April 9, the          date prescribed  in  the contract.    Indeed, the  ALJ's  opinion          specifically  stated  that   the  employers  did   not  condition                                                             ___          employment on immediate membership  in the Union.  See  Acme Tile                                                             ___          and Terrazzo Co., 1991 N.L.R.B. LEXIS 689, at *34 (A.L.J. Apr. 8,          1991).  Accordingly, we vacate the Board's order and remand for a          determination of whether  the employers explicitly or  implicitly          conditioned  continued employment on  immediate membership in the          Union.                    Vacated and remanded.                    ____________________                                         -5-
