

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1075

             UNITED PAPERWORKERS INTERNATIONAL UNION,
                  LOCAL 14, AFL-CIO-CLC, ET AL.,

                     Plaintiffs - Appellants,

                                v.

                   INTERNATIONAL PAPER COMPANY,

                      Defendant - Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]                                                               

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Campbell, Senior Circuit Judge,                                                         

                     and Cyr, Circuit Judge.                                                     

                                           

     Jeffrey  Neil  Young, with  whom  McTeague,  Higbee, Libner,                                                                           
MacAdam, Case &amp; Watson was on brief for appellants.                                
     Jane  B.  Jacobs, with  whom  Andrew  E.  Zelman and  Klein,                                                                           
Zelman, Briton,  Rothermel &amp;  Dichter, L.L.P.  were on brief  for                                                       
appellee.

                                           

                        September 7, 1995
                                           

          TORRUELLA,  Chief  Judge.    The  plaintiff-appellants,                    TORRUELLA,  Chief  Judge                                            

United Paperworkers  International Union, Local 14,  AFL-CIO, and

International Brotherhood of Firemen  and Oilers, Local 246, AFL-

CIO  (the  "Unions"), appeal  the  district  court's decision  on

summary  judgment in  favor of  International Paper  Company (the

"Company"), ruling that a recall agreement between the Unions and

the    Company    became   unenforceable    upon    the   Unions'

decertification.  For the following reasons, we affirm.

                            BACKGROUND                                      BACKGROUND

          The Unions  and the  Company  agree that  there are  no

material facts in dispute.  The Company owns and operates a paper

mill in Jay, Maine  known as the Androscoggin Mill  (the "Mill").

Between  1965  and   March  1993,  employees  at  the  Mill  were

represented for purposes of  collective bargaining by the Unions.

Throughout  that  time,  the Unions  and  the  Company  have been

parties to  a series of collective  bargaining agreements setting

forth the  terms and conditions  of employment at  the Mill.   In

June  1987, when  the Company and  the Unions could  not reach an

accord over a succeeding collective bargaining agreement, members

of the  Unions engaged in an economic  strike.  The Company hired

replacement workers during the strike.

          In  October of 1987, the  Company laid off 151 striking

employees  (the "Employees").   All but three  of these Employees

had  recall rights for twelve  months after layoff.1   The twelve
                                                  

1   The other  three  employees resigned  in 1989  pursuant to  a
pension offer negotiated  by the Unions.  Therefore,  these three
employees are not at issue in this case.

                               -2-

month period  in which  the  Employees were  eligible for  recall

expired before the parties began strike settlement negotiations.

          On November 16, 1987, certain Mill employees petitioned

the  National  Labor Relations  Board  (the  "NLRB")  to  hold  a

decertification election to determine whether the Mill  employees

desired  continued  representation by  the  Unions.   The  actual

election was delayed for over a year.

          On October 9,  1988, the Unions ended their  strike and

made an unconditional offer  to return to work.   Between October

18  and October 26, 1988,  the Unions and  the Company negotiated

and  executed an  agreement  setting forth  terms and  procedures

under  which former  strikers  would be  recalled as  replacement

workers  left  and  their  positions became  available.    During

negotiations,  the Unions raised  the issue of  the 151 Employees

who had been laid off in October 1987 and whose recall rights had

technically expired.   The final recall  agreement provided, with

limited  exceptions, that  the 151  laid  off Employees  would be

among the employees recalled under the agreement.

          In April 1989, at the Unions' request, portions of  the

recall agreement  were renegotiated and amended  to include lists

setting forth the order  in which employees were to  be recalled.

The 151 laid  off Employees were included  on these lists.   Both

the October 1988 agreement and  the April 1989 amended  agreement

were  silent   as  to   its  duration   or   termination.     The

decertification petition was pending throughout the negotiations.

                               -3-

          In  July 1989,  the  NLRB  conducted a  decertification

election at the  Mill.   Of the employees  eligible to vote,  616

voted  for  decertification,  and   361  voted  against.    After

investigating  and holding a hearing  on the Unions' challenge to

the election, the NLRB issued  a decision upholding the  election

results and dismissing the  Unions' objections.  The Unions  thus

became  decertified  as  of   March  30,  1993.     Both  parties

acknowledge   that   upon   decertification,  the   then-existing

collective bargaining agreement, which  would otherwise have been

effective until September 30, 1993, became null and void.

          In  August 1993,  the  Company advised  the Unions  and

several of  the 151 laid  off Employees that  as a result  of the

Unions' decertification,  the  Employees  no  longer  had  recall

rights.  The Unions thereafter  filed this  action in  the United

States District  Court for the District of Maine, contending that

the recall agreement, unlike the collective bargaining agreement,

survived the Unions' decertification and thus remained binding on

the Company.

          Following  cross-motions  for  summary   judgment,  the

district  court issued  its decision  on December  1, 1994.   The

district court found that  there was no indication in  the recall

agreement  itself  that  the   parties  intended  it  to  survive

decertification,  despite  the  fact  that   the  decertification

petition had been filed and was pending during the negotiation of

the  agreement.   The  court  explained that  because  the recall

agreement  establishes  rights  for  a  category  of  represented

                               -4-

employees, and explicitly specifies that its terms are to prevail

if  there is  any conflict  with "other  provisions of  the labor

agreement,"  the  recall  agreement  is  "tied  directly  to  the

collective  bargaining  agreement,"  such  that  it  contemplates

"ongoing union involvement."   Because the recall agreement would

affect  the Company's  negotiations with  a new union  seeking to

represent  a  majority  of  employees, and  would  "perpetuate  a

limited  portion   of  the  elements  ordinarily   covered  by  a

collective bargaining agreement," the  recall agreement cannot be

said to  be independent  of the collective  bargaining agreement.

Therefore,  the  court reasoned,  the  recall  agreement did  not

survive decertification.  Accordingly, the court granted  summary

judgment in the Company's favor.

                            DISCUSSION                                      DISCUSSION

          A.  Standards of Review                    A.  Standards of Review                                           

          In  general,  summary judgment  is  proper  only if  no

genuine  issue of material fact exists and the movant is entitled

to  judgment  as  a matter  of  law.    Fed.  R. Civ.  P.  56(c).

Therefore,  a   party  seeking  summary  judgment   must  make  a

preliminary  showing  that  no  genuine issue  of  material  fact

exists.  Once  this showing is made, the non-movant must point to

specific facts  demonstrating that there is  a trialworthy issue.

National Amusements, Inc.  v. Town  of Dedham, 43  F.3d 731,  735                                                       

(1st  Cir.  1995).   An  issue  is  "genuine"  when the  evidence

relevant to it, viewed in  the light most flattering to the  non-

moving party,  is "sufficiently  open-ended to permit  a rational

                               -5-

factfinder to resolve the  issue in favor  of either side."   Id.                                                                          

(citation  omitted).    Because  the  summary  judgment  standard

requires the  trial court to  make a  legal determination  rather

than  to  engage in  factfinding,  appellate  review is  plenary.

Equal  Employment Opportunity  Comm'n  v. Steamship  Clerks Union                                                                           

1066, 48 F.3d 594, 602 (1st Cir. 1995).              

          This standard is the norm.   Having stated it, however,

we must  note  that under  our  precedent, in  certain,  somewhat

unusual cases, this standard does not apply.  In a  nonjury case,

when the  basic dispute  between  the parties  concerns only  the

factual  inferences that one might draw from the more basic facts

to which the  parties have  agreed, and where  neither party  has

sought  to  introduce additional  factual  evidence  or asked  to

present witnesses,  the parties are, in  effect, submitting their

dispute  to the court as  a "case stated."   Steamship Clerks, 48                                                                       

F.3d  at 603 (citing Federaci n de Empleados del Tribunal Gen. de                                                                           

Justicia  v. Torres,  747 F.2d  35, 36  (1st Cir.  1984) (Breyer,                             

J.)).    The  district  court  is  then  "freed  from  the  usual

constraints  that attend  the  adjudication of  summary  judgment

motions,"  and may  engage in  a certain  amount of  factfinding,

including the drawing of inferences.  Id.                                                  

          By the same  token, the appellate court may assume that

the parties considered the  matter to have been submitted  to the

district court as  a case ready for decision on  the merits.  Id.                                                                          

The  standard for  appellate review  consequently shifts  from de                                                                           

novo  review to clear-error review; that is, the district court's              

                               -6-

factual inferences should be  set aside only if they  are clearly

erroneous.  Id. (citing United States v. Ven-Fuel, Inc., 758 F.2d                                                                 

741, 744 n.1 (1st Cir. 1985)).

          In  the  instant  case,  the  parties  cross-moved  for

summary  judgment, yet both agreed that there was no dispute over

the basic  facts of  the case.2   Nor did  either party  give any

indication  that it  intended to  present additional  evidence or

witnesses, or request a jury trial.  The only dispute in the case

stems  from the inferences that  the parties claim  must be drawn

from  those  basic facts  --  what legal  significance  should be

ascribed  to those  facts.   In  effect,  therefore, the  parties

submitted their case to the district court as a case stated.  See                                                                           

Steamship  Clerks,  48 F.3d  at  603 (holding  same  in virtually                           

identical procedural circumstances).  Similarly, the parties both

state in their appeal  briefs and during oral argument  that they

agree upon the basic material facts of the case.  Accordingly, we

are bound to  apply the more deferential clear-error  standard of

review when examining the inferences drawn by the district court.

Id.  The district court's legal conclusions nevertheless engender            

                                                  

2  Of course, the mere fact that the parties moved simultaneously
for summary  judgment does not automatically  change the district
court's analysis  or render  the customary standard  of appellate
review obsolete.  Unless the special circumstances described here
are present,  "the nisi  prius court  must  consider each  motion                                        
separately, drawing  inferences against each movant  in turn, and
the court of appeals must  engage in de novo review."   Steamship                                                                           
Clerks,  48 F.3d  at 603 n.8  (citing El  D a, Inc.  v. Hern ndez                                                                           
Col n,  963 F.2d  488, 492  n.4 (1st  Cir. 1992);  Griggs-Ryan v.                                                                        
Smith, 904 F.2d 112, 115 (1st Cir. 1990)).                   

                               -7-

de novo review.  Id. (citing McCarthy v. Azure, 22  F.3d 351, 354                                                        

(1st Cir. 1994)).

          B.  The District Court's Decision                    B.  The District Court's Decision                                                     

          The Unions'  primary contention  on appeal is  that the

district court erred  as a matter of law, and  that its ruling is

contrary  to  the  Supreme  Court's  decision  in  Retail  Clerks                                                                           

Internat'l Ass'n Local 128 v. Lion Dry Goods, 369 U.S. 17 (1962).                                                      

Specifically, the Unions  argue that the Lion  Dry Goods decision                                                                  

compels  the legal  conclusion that the  recall agreement  in the

instant  case  is an  enforceable contract.    We think  that the

Unions' argument ascribes too much to the Lion Dry Goods case and                                                                  

too little to the district court's decision here.

          In addressing the issue of whether the recall agreement

survived the Unions' decertification, the district court began by

noting  that  "decertification  ends the  enforceability  of  any

collective bargaining agreement," and observing that both parties

concede that the  Company is  no longer obliged  to negotiate  or

bargain with the  Unions or to honor the terms  and conditions of

the  previous  collective bargaining  agreements.    Going on  to

discuss the issue of  the recall agreement's continued viability,

the court explained:

               [The  recall agreement  was] [d]rafted
            at  a  time when  the  Unions were  still
            certified    as    majority    bargaining
            representatives,  [and] it  requires that
            the  Unions receive a  copy of any recall
            notice  sent  to  unreinstated  strikers.
            The  recall  contract establishes  rights
            for   this    category   of   represented

                               -8-

            employees  and  affects their  seniority.
            Indeed, it  specifies that its  terms are
            to prevail if there  is any conflict with
            "the  other  provisions   of  the   labor
            agreement"  .  .  .  . Thus,  the  recall                                                               
            agreement   is   tied  directly   to  the                                                               
            collective  bargaining   agreement:    it                                                        
            supersedes  or   amends  any  conflicting
            portions  of  the  collective  bargaining
            agreement;  it  affects seniority  rights
            under    the     collective    bargaining
            agreement;  and  its  notice  requirement
            contemplates  ongoing  union involvement.
            To say that this contract survives, then,
            would affect any negotiations with  a new
            union  that might  seek  to  represent  a
            majority of International Paper employees
            and  in the  meantime would  perpetuate a
            limited    portion   of    the   elements
            ordinarily   covered   by  a   collective
            bargaining   agreement  .   .  .   .  The
            conclusion is  therefore unavoidable that
            this recall and  seniority contract  does
            not survive decertification.

               I  do  not need  to  decide  whether a                                                               
            company  and  a  union can  ever  make an                                                               
            agreement that will be  enforceable after                                                               
            a  decertification.   Here,  there is  no                                                               
            indication in the  recall agreement  that                                                               
            the  parties  intended   it  to   survive                                                               
            decertification . .  . . I  conclude that                                     
            on  the  undisputed  record   the  recall
            agreement   became   unenforceable   upon
            decertification of the Unions.

(Emphasis  added)(footnotes  omitted).   In  a  footnote to  this

discussion,  the  district  court   noted  that  Lion  Dry  Goods                                                                           

"suggests that contracts with minority unions may be enforceable,

but the only  matter actually decided there was that jurisdiction

existed under   301 [of the LMRA]."

          We agree with the district court that Lion Dry Goods is                                                                        

not dispositive of the issue in the instant case.  Our reading of

that  case indicates that  the Supreme Court  was only addressing

                               -9-

the narrow issue of whether a strike settlement agreement between

a minority union and an employer constitutes a "contract" as that

term is  employed in    301(a) of the  LMRA, 29 U.S.C.    185(a).

Lion Dry  Goods, 369 U.S.  at 27.   Reasoning that the  language,                         

purpose,  and legislative history  of the statute  do not support

the  exclusion of such agreements from  the purview of    301(a),

id. at 26-28, the  Court held that claims for  alleged violations            

of such agreements  are "cognizable" under   301(a).   Id. at 29-                                                                   

30.3

          The parties in the instant case disagree over the scope

of  the Court's holding in  Lion Dry Goods;  the Company contends                                                    

that  it  is merely  a grant  of  jurisdiction, while  the Unions

contend that it stands for the proposition that contracts between

unions and employers remain enforceable even after  the union has

lost its majority representative status.

          We  need  not  resolve  this dispute,  however.    Even

assuming arguendo that Lion Dry Goods holds, as the Unions claim,                                               

that contracts between unions and employers are enforceable after

decertification, it cannot by any stretch be said to require that

all such contracts must be  enforced regardless of the intentions                                                                           

of the parties to the contract.   Indeed, the district court  did                                        

not  hold  that  recall  agreements  were  as  a  general  matter

unenforceable  after decertification.    It  merely analyzed  the
                                                  

3  In so holding, the  Court rejected arguments that the language
of   301 contemplated only those  contracts between employers and
unions representing a majority  of employees, explaining that the
language and history of the statute did not support such a narrow
construction.  Id. at 28-29.                           

                               -10-

agreement before it, and inferred from the undisputed facts  that

the agreement  had not been intended  to survive decertification.                                              

The Lion Dry Goods case, regardless of the  scope of its holding,                            

is  therefore   inapposite,  and  the  Unions'   reliance  on  it

misplaced.4

          Having disposed of this argument, we are left only with

the   Unions'  contentions   that   the   district   court   drew

impermissible inferences  in concluding, based on  the undisputed

factual record before  it, that  the parties did  not intend  the

recall  agreement to  survive decertification.   As  we explained

supra, however, we review these  inferences only for clear error.               

After  carefully examining  the  record, we  can discern  no such

clear error on the part of the district court.

          The Unions  challenge the district court's finding that

the  recall  agreement  contemplated  an  "ongoing  relationship"

between the parties and therefore could not have been intended to

                                                  

4    Contrary to  the  Unions'  arguments, the  district  court's
decision did  not hinge on the fact that the Unions no longer had
majority representative status.  Rather, the court explained that
because  it found that the  recall agreement, by  its very terms,
was  "tied directly"  to the unenforceable  collective bargaining
agreement,  it  had  not been  intended  to  survive the  Unions'
decertification.  In other words, the court's decision rested not
on the  status of the  Unions, but  upon indicia of  the parties'
intentions in negotiating the agreement.

  We also reject the Unions' arguments that  the district court's
concern  that  the  recall  agreement would  affect  a  successor
union's ability to  represent Company employees is  "ill-founded"
in light of  the Lion Dry Goods  case.  The  parties in Lion  Dry                                                                           
Goods  explicitly agreed  that their  contract would  have effect                                  
even after the Union lost its majority representative status, 369
U.S.  at 22-23,  a crucial  fact markedly  absent in  the instant
case.

                               -11-

remain in  effect after the Unions' decertification.   The Unions

concede  that the  provisions  cited by  the  district court  are

characterized  accurately;  the Unions  urge,  however,  that "it

could just as equally be said" that the agreement was intended to

survive decertification.  The Unions  offer no facts or  evidence

in support of this argument, nor do they claim that this actually

was  the parties'  intent.   They also  do  not indicate  how the

district court's  inference was  unreasonable or  erroneous; they

merely claim that the opposite conclusion could have been made in                                                         

interpreting the  agreement.  We think that  the district court's

inferences based on the undisputed record were well-supported and

reasonable.  We certainly cannot say that they rise to the  level

of clear error, so  we must reject the  Unions' argument on  this

score.

          Similarly, we are not persuaded by the Unions' argument

that the district court  erred in concluding that the  absence of

an  expiration  date  in  the  agreement,  among  other  indicia,

supported  the inference  that  it was  not  intended to  survive

decertification.  We agree that the absence of an expiration date

could  be  interpreted to  mean  that  the parties  intended  the               

agreement to remain in effect until all employees'  recall rights

were exhausted, regardless of  the Unions' representative status.

We do  not see, however, nor  do the Unions point  to, any reason

that  the  district  court's   conclusion  to  the  contrary  was

unreasonable.      The  decertification   petition   was  pending

throughout  the parties'  negotiations,  and neither  party could

                               -12-

have accurately  predicted when it would take  place.  Certainly,

if  the Unions had intended  for the recall  agreement to survive

their  possible  decertification, they  could have  bargained for

such a provision.  We think that the absence of  such a provision

or expiration date, under these circumstances, just as reasonably

supports the  inference that  the parties  had  not intended  the                                                             

agreement  to survive.      We therefore  find  no error  in  the

district court's conclusion to this effect.

                            CONCLUSION                                      CONCLUSION

          Finding no clear error, we affirm.                                                     

                               -13-
