
USCA1 Opinion

	




                            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 & Corcoran was on brief for             __________________            __________________        appellant.             Raymond J. Reed, with whom Reed & Reed was on brief for appellee.             _______________            ___________                                                                                      ____________________                                    March 25, 1994                                                                                      ____________________                    CYR,  Circuit Judge.   Tresca  Brothers Sand  & 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 & 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
