

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-1992

                    ACME TILE AND TERRAZZO CO.
                  AND ROMAN TILE &amp; 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 &amp; 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 &amp;                                                                           

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  &amp; 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) &amp; (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)

&amp; (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-
