

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                                                                                

No. 93-1965
              TRESCA BROTHERS SAND AND GRAVEL, INC.,

                      Plaintiff, Appellant,

                                v.

                 TRUCK DRIVERS UNION, LOCAL 170,

                       Defendant, Appellee.

                                                                                                

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Joseph L. Tauro, U.S. District Judge]                                                               

                                                                                                

                              Before

                       Cyr, Circuit Judge,                                                   

                  Aldrich, Senior Circuit Judge,                                                         

                    and Stahl, Circuit Judge.                                                      

                                                                                                

   Robert P. Corcoran, with whom Gleeson &amp; Corcoran was on brief for                                                             
appellant.
   Raymond J. Reed, with whom Reed &amp; Reed was on brief for appellee.                                                   

                                                                                                

                          March 25, 1994
                                                                                                

          CYR,  Circuit Judge.   Tresca  Brothers Sand  &amp; Gravel,                    CYR,  Circuit Judge.                                          

Inc. (Tresca) brought  suit under section 303(b) of  the National

Labor Relations Act  (NLRA), 29 U.S.C.    187(b), charging defen-

dant-appellee Truck Drivers  Union, Local 170  (Local 170 or  the

Union) with unfair labor practices  during contract negotiations.

Following  a two-day  bench trial,  the district  court concluded

that a  subcontracting proposal  advanced by  the Union during  a

strike had indeed violated both  NLRA sections 8(b)(4) and  8(e),

29 U.S.C.   158(b)(4), (e), which prohibit, respectively, compul-

sion against an employer  to require any self-employed  person to

join  a labor organization, and  to require an  employer to cease

doing business with  any party.  The  district court nevertheless

found that Tresca  had not established  a sufficient causal  link

between the unlawful Union conduct and the injury Tresca alleged-

ly sustained as a result of the strike.  

          In  March 1991,  Tresca, in  coalition with  four other

ready-mix  concrete  companies  (collectively  "the  Companies"),

began contract  renewal negotiations  with Local  170.1   By  all

accounts,  negotiations were  contentious from  the outset.   The

Companies sought  significant  work-rule modifications  (e.g.,  a                                                                       

reduction from eight to four guaranteed hours' pay for each day a

driver is  called to work) and  benefit eligibility restrictions,

which  the Union  considered  unacceptable.   The Union  proposed
                                                  

     1We outline only the  background necessary to an understand-
ing of the narrow issue presented on appeal.  

                                2

forty-two   separate  modifications  to  the  existing  contract,

including  the  elimination of  the  arbitration  clause and  the

addition of a subcontracting  clause, both deemed unacceptable by

the Companies.   After five acrimonious  bargaining sessions, the

parties  remained at loggerheads.  On May 4, 1991, the membership

of  Local 170 rejected the latest contract proposal by the Compa-

nies and voted to go out on strike.  Although additional bargain-

ing  sessions  were convened  during  the  strike, the  stalemate

continued. 

          The focal  point of  this appeal is  the subcontracting

proposal  made  by the  Union at  the  May 9  bargaining session,

whereby the Companies  would be required to  sever their business

relationships with all non-union owner-operators hauling sand and

gravel for the Companies.  The parties agree that the Union's May

9 proposal was unlawful.  

          At a  June 13  bargaining session, after  the Companies

had  filed a complaint  with the  National Labor  Relations Board

(NLRB), the  Union formally withdrew  the unlawful May  9 subcon-

tracting proposal.2  The  Companies' most recent "final" contract

proposal,  containing demands for  significant work-rule changes,

was rejected by the membership of Local 170 the very next day, on

June  14.  In short order, the employers' coalition dissolved and

individual  companies began  separate contract  negotiations with
                                                  

     2The  NLRB declined to  issue a complaint.   Teamsters Local                                                                           
170, N.L.R.B. Nos. 1-CC-2363 (1-2) (Aug. 15, 1991).             

                                3

the Union.  Tresca and the Union were never able to resolve their

differences.    Replacement workers  were  hired  and the  strike

continues to this day.

          The central  dispute at trial concerned  the importance

attached by  the Union leadership  and membership to  the Union's

unlawful subcontracting  proposal  and its  significance  in  the

decision to strike.  The Union contended that economic issues and

the work-rule concessions sought by the Companies  were always at

the  heart  of the  dispute.   Tresca  insisted that  the illegal

subcontracting  proposal was  presented  as an  ultimatum by  the

Union's negotiators and dominated the contract negotiations. 

                            DISCUSSION                                      DISCUSSION                                                

          Both parties  endorse the applicable legal  standard as

explained by the district court: 

          In order to make  a legal claim under Section
          303(b) of  the NLRA, a party  must prove that
          it was injured "by reason of" an unfair labor
          practice. [This phrase] has  been interpreted
          to mean  there must be some  causal nexus be-
          tween the unfair labor practice and the inju-
          ry allegedly suffered.  Mead v. Retail Clerks                                                                 
          Int'l Ass'n, 523 F.2d 1371, 1378-79  n.9 (9th                               
          Cir. 1975) (no liability  if an illegal moti-
          vation is  merely "an object"  of a  strike),
          cited with approval, John B. Cruz Constr. Co.                                                                 
          v. [United] Bhd.  of Carpenters and  Joiners,                                                                
          907  F.2d  1228, 1232  (1st  Cir.  1990); see                                                                 
          Feather v. United Mine Workers, 903 F.2d 961,                                                  
          965-66 (3rd  Cir. 1990).  Under  what has be-
          come known  as the  Mead test,  injury occurs                                            
          "by  reason  of" particular  unlawful conduct
          only if that conduct "materially contributes"

                                4

          to the injury or is a "substantial factor" in
          bringing it about. Mead, 523 F.2d at 1376.                                           

Tresca  Brothers Sand &amp; Gravel v. Truck Drivers Union, Local 170,                                                                          

CA  No. 91-11590-T,  slip  op. at  3 (D.  Mass.  July 29,  1993).

Although Tresca attempts on  appeal to couch its contention  as a

challenge  to  the  district  court's  application  of  the  Mead                                                                           

multiple-motivation test,3  its assignments of error  all presume

"clear error"  in the  district court's  central finding  of fact

that "[a]t no time were the Union's subcontracting proposals ever                                                                           

a  motivation  for  the strike."    Id.  at  8 (emphasis  added).                                                 

Obviously,  unless the  unlawful  subcontracting proposal  was  a                                                                           

motivation,  it could  not have  been a  "substantial  factor" in

bringing about the strike; and Tresca cannot prevail on its Mead-                                                                          

test contention however characterized.

          We  review the  district court's  findings of  fact for

clear error.    John  B.  Cruz Constr.  Co.  v.  United  Bhd.  of                                                                           

Carpenters  and Joiners,  907 F.2d  1228, 1230  (1st Cir.  1990).                                 

Thus,  the central  finding in  this case  "will be  given effect

unless,  after  reading  the  record with  care  and  making  due

allowance for the trier's  superior ability to gauge credibility,

                                                  

     3Tresca argues that the  district court failed to appreciate
that  a strike  may be  motivated by  more than  one "substantial
factor,"  Frito-Lay,  Inc. v.  International  Bhd.  of Teamsters,                                                                           
Local 137, 623 F.2d 1354, 1363 (9th Cir.), cert. denied, 449 U.S.                                                                 
1013  (1980),  and that  unlawful  conduct may  be  a substantial
motivating factor even though  other factors standing alone would
have  been sufficient to prompt  a strike, see  Feather v. United                                                                           
Mine Workers, 903 F.2d 961, 966 n.11 (3d Cir. 1990).                       

                                5

[we  form] 'a strong, unyielding  belief that a  mistake has been

made.'"   Dedham Water Co.  v. Cumberland Farms  Dairy, Inc., 972                                                                      

F.2d  453,  457   (1st  Cir.  1992)  (quoting  Cumpiano v.  Banco                                                                           

Santander  Puerto Rico, 902 F.2d  148, 152 (1st  Cir. 1990)); see                                                                           

Anderson  v. Bessemer  City, 470  U.S. 564,  573 (1985)  ("If the                                     

district court's account of the evidence is plausible in light of

the record viewed in its  entirety, the court of appeals may  not

reverse  it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.").

A careful review of the entire record discloses no clear error in

the finding that  the unlawful subcontracting proposal was  not a

motivation for the strike.  

          First,  the  unlawful subcontracting  proposal  was not

made until  after Local  170 voted  to strike  Tresca  on May  4.                           

Second,  Tresca  concedes that  the  Union  membership was  never                                                                

motivated  by  the subcontracting  proposal.    Third, the  Union

membership rejected  another contract  proposal by  the Companies

immediately  after the  Union's unlawful  subcontracting proposal                            

was withdrawn on June 13.  Thus, there is no dispute that before,

during, and  after the time the  unlawful subcontracting proposal

was on the  bargaining table, the Union  membership was motivated

by other concerns    unrelated to the subcontracting proposal    

for   which  the   membership  was   ready  to   strike.     This

circumstantial evidence alone provided  plausible support for the

district court finding. 

                                6

          There remains  only the question of  the motivations of

Union negotiators.4  Tresca  insists that there is uncontroverted

evidence  that  the  Union  negotiators  presented  the  unlawful

subcontracting proposal as an ultimatum.  The record simply  does

not  bear this out.   The witnesses  presented by the  parties at

trial  gave  diametrically  opposed   accounts  as  to  when  the

subcontracting  proposal was presented and whether subcontracting

was  the key issue, as  Tresca maintains, or  simply a bargaining                  

chip, as  the Union claims.   The only  objective non-testimonial

evidence presented  by Tresca  indicates that  the subcontracting

proposal first surfaced at the May 9 bargaining session.  But the

timing of  the subcontracting proposal, while  relevant, does not

determine the outcome of the motivation test required under Mead.                                                                          

Rather, in the present context,  the question whether the strike,

or its prolongment, was  motivated by the subcontracting proposal

turns  on the  actions and  intent of  the  Union representatives                                            

responsible for the decision  to inject it as  an element in  the

collective bargaining.  

          The chief negotiator for the  Union specifically denied

that the May 9  subcontracting proposal was ever presented  as an
                                                  

     4The record does not support Tresca's unnatural reading that
the district  court's findings on motivation for  the strike, see                                                                           
supra at  p.4, addressed  only the  motivations  of the  striking               
employees and not those  of the Union negotiators.   The district
court finding itself contains no such qualification, nor is there
any  evidence  that  the   strike  motivations  harbored  by  the                                                        
membership  differed  substantially  from  those  of  the   Union
negotiators.

                                7

ultimatum, and expressly denied that it was ever a motivation for                                                                           

the strike.  The district court clearly credited the testimony of                    

Local 170's chief negotiator.5

          "[W]hen  factual findings  are based  on determinations

regarding the credibility of witnesses,  Rule 52 demands that the

appeals court accord even greater deference to the  trial court's

findings."   Rodriguez-Morales v. Veterans Admin.,  931 F.2d 980,                                                           

982 (1st Cir. 1991)  (citing cases); see also Anderson,  470 U.S.                                                                

at 573.  Based  on its credibility determination relating  to the

Union's   motivation,   and   the  undisputed   fact   that   the

subcontracting proposal was not a strike motivation for the Union

membership,  there  was no  clear  error  in the  district  court

finding  that  the  May  9  subcontracting  proposal  was  not  a

motivation behind the strike.   Accordingly, we affirm its ruling

that Union liability under NLRA   303(b) was foreclosed. 

          Affirmed.                    Affirmed.                            
                                                  

     5Near  the end of the trial, the district court outlined for
counsel the credibility problem confronting Tresca: 

     You  have had a witness on the stand here who said that
     [the  Union's negotiator] says "I am  going to get this
     [subcontracting]  proposal . . . I have been wanting to
     do  it a  hundred  years and  this  is life  or  death.
     Without this, nothing."
          .  .  .  I  presume  that  somebody  is  going  to
     corroborate it.  These are the people that were  there.
     Are they going to corroborate it or aren't they?  There
     is no subtlety here.  Either it happened or it didn't.
          If  it  happened, you've  got a  slam dunk.  If it
     didn't, you have a problem. 

Trial Tr. at 42-43, July 22, 1993.

                                8
