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 &amp; TERRAZZO CO.,

                           Respondents.

                                           

           UNITED BROTHERHOOD OF CARPENTERS LOCAL 36-T,

                           Intervenor.

                                           

No. 92-1595 

                   ACME TILE AND TERRAZZO CO.;
                     ADMIRAL TILE CO., INC.;
                  JOLICOEUR &amp; RESMINI CO., INC.
                  AND ROMAN TILE &amp; 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 &amp;  Petrocelli Ltd.,
                                                                
were on brief for Acme  Tile and Terrazzo Co.; Admiral Tile  Co.,
Inc.; Jolicoeur &amp; Resmini Co., Inc. and Roman Tile &amp; 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  &amp; 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
                                      

          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
                                        

          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-
