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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 95-1992

ACME TILE AND TERRAZZO CO.


AND ROMAN TILE & 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 & Boren Ltd.


_____________________

was on

brief for petitioners.


Corinna L. Metcalf,
____________________
Board, with
Sher,
____

Attorney,

National

whom Frederick L. Feinstein,


______________________

Associate

Associate General

General Counsel,
Counsel,

Labor

Relations

General Counsel, Linda


_____

Aileen A. Armstrong, Deputy


_____________________

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.


CUMMINGS, Circuit Judge.
______________

The present

controversy has

been before this Court once before.

It arises out of the actions

of various employers alleged to have violated the

Relations

Act, 29

originally

found

conditioning

terminating

to the

U.S.C.

that

continued

151

the

National Labor

et seq. ("Act").
________

employers

employment

on

violated

union

the

Terrazzo Co., 984


____________

findings.

F.2d 555 (1st Cir. 1993).

reached the same conclusion.

findings

additional

supported

by substantial evidence, we now

order should be enforced.

NLRB v.
____

and

that

by

and

We remanded

Acme Tile &


___________

After doing so, it

Satisfied that the Board

necessary

Act

membership

employees who failed to join the union.

Board to make additional

The Board

those

made the

findings

are

hold that the Board's

I.

Acme Tile

("Companies")

Terrazzo

and Terrazzo Co. and Roman Tile and Terrazzo

are

members

Contractors

("Association"),

authorized

Companies.

Until

the

in Rhode

collective

The Companies

Cutters

Tile, Marble,

of

multi-employer

Tile,

Rhode

Island.

The

Marble

Island

association

bargaining

and

Corp.

representing

Association is

representative

of

the

employ both "finishers" and "setters."

December 1988, the finishers

of the

Ceramic

Association

contractors headquartered

the

of

were represented by Local 36

Terrazzo Finishers, Shopworkers

International Union ("Local 36").

& Granite

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.

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The setters

Union

of

were represented

Bricklayers

("Bricklayers Union").

also

parties

Bricklayers

to

and

The

collective

by

Allied

Local 1

of the

Craftsmen

of

Association and the

bargaining

International

Rhode

Island

Companies were

agreements

with

the

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

and

("Carpenters Union")

Local 36 was newly designated "Local 36-T" of the Carpenters

Union.

struggle

Carpenters Union

ensued.

Bricklayers Union

merging

into

between

In

the

Bricklayers

early 1989, David

Business Manager, approached

Local

of

the

Union

and

the

Barricelli, the

Local 36-T about

Bricklayers

Union.

Without

assurances that their local would retain its autonomy, Local 36-T

rejected

the

proposal.

"change their

minds,"

Barricelli met with Local 36-T members in February 1989.

He told

them that

if they did

speak

the

to

local

Attempting

not join the Bricklayers

bricklayer

Connecticut and

tell them

carpenters

should

and

to

not

that

be

unions

in

the Local

permitted

Union, he would

Massachusetts

36-T finishers

to

work

in

and

were

those

jurisdictions.

The

subsequently wrote the

replace the

helpers

members

were

unpersuaded.

Barricelli

local bricklayer unions and asked them to

finishers represented

by the Carpenters

belonging to the Bricklayers

the letters to the Companies.

-3-

Union.

He

Union with

sent copies of

On March

29, 1989,

addendum to its contract with

tile

finishers; the

Representatives of

claiming

addendum

the Association members

the Bricklayers Union covering the

became effective

the Companies

jurisdiction

over

signed an

all

were told that

finishers'

April 1,

1989.

Barricelli was

work

and

that

Bricklayer Union setters would not work with the Carpenters Union

after

March 31, 1989.

Thus

some compulsion to sign

would

not strike.

the Companies felt

the addendum to ensure that

The agreement

contained a union security

of the

it appears that

that

the setters

the addendum

modified

clause, which required that employees

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

they would have

and be

to contact the Bricklayers Union

business agent

referred by the Bricklayers Union to be permitted to work

on Monday, April 3, 1989.

that

their employees that

None of the finishers

showed for work

day and the Companies replaced them with finishers from the

Bricklayers Union.

Local 36-T filed unfair

the Companies,

to join

they

alleging that the Companies

the Bricklayers

the Bricklayers

labor practice charges against

Union,

refused to join the

forced the finishers

Union, contributed unlawful

and terminated

their employees

Bricklayers Union.

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support to

because

In April 1991, an

administrative law judge issued a decision and recommended order,

concluding that the Companies

found

that

that the Companies told

had not violated the Act.

the employees on

The ALJ

March 31, 1989,

they had to secure a referral from the Bricklayers Union by


________

April 3 if they wanted

Relations

to continue working.

Board ("Board")

reversed

Companies had committed unfair

The

the ALJ,

labor practices.

National Labor

holding that

In

the

so holding,

the

Board erroneously stated that the ALJ had credited testimony

that on March 31

the union

the Companies required their employees

by April 3.

The Board ordered that

to join
____

the employees be

reinstated and compensated.

The Board thereafter sought enforcement in this

We

noted

employees

that the

to

Act requires

join

an

construction industry.

seven-day grace

employer-recognized

29 U.S.C.

158(f).

Companies required the employees to join


____

two days

into that grace

period --

Despite the existence of testimony

Court.

period for

union

in

the

Thus only if

the

the union by April 3 --

did they

violate the

that could have supported the

Board's conclusion, it relied instead on an erroneous reading

the

ALJ's opinion,

as noted

Act.

above.

We therefore

of

vacated the

Board's order

employers

and remanded "for

explicitly

or

a determination of

implicitly

conditioned

employment on immediate membership in the Union."

whether the

continued

Acme Tile, 984


_________

F.2d at 556.

The

clarification.

Board

remanded

the

case

to

the

ALJ

for

The ALJ reaffirmed its original decision that the

-5-

Companies

did not

reversed.

The

violate the Act,

Board

concluded that

Section 8(a)(1) and (2) of the

by

conditioning

and the

continued

the

Board subsequently

Companies

Act, 29 U.S.C.

employment

violated

158(a)(1) & (2),

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.

& (1),

the

of the Act by

union.

The

158(a)(3)

discharging employees who refused

Board

reinstatement with backpay.

again

ordered,

among

other

to join

things,

This appeal followed.

II.

We

correctly

will enforce

applied

the law

an

and

order by

if

its

the

Board only

factual

if

findings

it

are

supported

by

substantial

Papers, Inc. v.
_____________

NLRB,
____

evidence

706 F.2d

denied, 464 U.S. 892 (1983).


______

to "form,

join, or

employees

158(a)(1).

The

discriminating

term

or

exercise"

Act

Penntech
________

Cir.),

cert.
_____

and to

refrain

157, and makes it an unfair labor

"interfere with, restrain,

of

those

specifically

rights.

prohibits

29

or coerce

U.S.C.

employers

from

"in regard to hire or tenure of employment or any

condition

membership in

22-23 (1st

assist labor organizations"

employers to

in the

18,

record.

The Act grants employees the right

from such activity, 29 U.S.C.

practice for

on the

of

employment to

any labor organization."

encourage

29 U.S.C.

or

discourage

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

158(a)(3) (proviso).

Act:

condition of

employment.

29

U.S.C.

But this exception is itself limited by the

a union security agreement in the construction industry may

only require

union membership

the beginning of

"after the seventh

such employment

agreement, whichever is

later."

or the effective

29 U.S.C.

day following

date of

158(f).

Thus

the

an

employer commits an

employee

the

unfair labor

during the seven-day

union despite

the

security agreement.

employee into joining

practice if

grace period for

existence of

In

addition,

a union

practice under 29 U.S.C.

it terminates

an

failure to join

otherwise valid

an employer

may also commit

an

union

who coerces

an unfair

158(a)(2) if the coercion

an

labor

amounts to

unlawful "support" for that union.

The

Board

concluded

that

the

violated

Sections

158(a)(1), (2), and (3).

contrary

to the ALJ's decision, was its factual finding that the

Companies

"implicitly

employment on

immediate

conditioned

their

membership in

318 N.L.R.B. No. 47, 1995 WL 496836.

Companies'

Key to

Companies

requirement that

that conclusion, and

employees'

the Bricklayers

continued

Union."

The Board reasoned that the

the employees obtain

a "referral,"

"approval,"

requiring

employers'

their

or

"clearance" from

immediate

membership

statements

employees to

would

the

in

union

the

"reasonably

believe that

was tantamount

union,

and

membership in

because

the

foreseeably lead

the Bricklayers

Union by April 3 was required in order to continue working."

-7-

to

Id.
___

The Companies initially contend

comply

with this

appeal.

as

to

Court's remand

whether

556.

stated

instruction from

In

that

condition,

the

Companies

explicitly

the Companies

existed that

opinion,

made

found that

the Board

union

might demonstrate

reading of

complied with this

implicitly

determination to

explicit

be based

on an

We noted that testimony

an explicit condition,

the Board's

984 F.2d

had essentially

membership an

the Board had not relied on that testimony.

any fair

or

employment on union membership.

its original

but we

had

erroneous reading of the ALJ's findings.

from

the original

On remand, we required the Board to make a determination

conditioned continued

at

that the Board did not

but that

It is quite apparent

latest decision

Court's remand instructions.

that it

Deciding not to

base its

holding

contradicted

by

evidence supported

on the

other

testimony

testimony,

a finding

just mentioned,

the

Board

found

that the Companies

conditioned continued employment on

which

was

that

the

had implicitly

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

first argue that

ALJ's finding

of substantial

the Board

evidence,

lacked any basis

that the Companies merely

the Companies

for rejecting

the

advised their employees

of the procedures under the new contract rather than coerced them

into joining the Bricklayers

employers'

statements were

Union.

simply

The ALJ concluded

observations of

that the

the natural

-8-

consequences of the union security provision in the new

contract

and

the

new

to work

the

that the

procedures

employees

were merely

would affect

following

Monday.

deference

on questions

Camera Corp.
____________

them

While

of

v. NLRB, 340
____

informed

when they

it is

true

of how

returned

that we

witness credibility,

U.S. 474, 496-497

afford

see
___

the ALJ

Universal
_________

(1951), we

do not

agree with the

Companies that the

Board necessarily rejected

credibility determination of the ALJ to reach its conclusion, nor

would it necessarily

that deference

continued employment

union.

Id.
___

(implying

in the substantial

The Board accepted testimony credited by the ALJ

effect that the

only required

if it had.

to the factfinder is subsumed

evidence test).

to the

be dispositive

Companies had not

on union

expressly conditioned

membership -- that

a "referral," "approval," or

the Companies

"clearance" from the

In determining that even these statements amounted to an

unlawful

implicit

condition,

the Board

evidence regarding the

circumstances in

were

did not reverse

made.

The Board

made by the ALJ.

relied

on

additional

which these

statements

any credibility findings

Furthermore, substantial evidence supports

findings

their

on

the

circumstances surrounding

implicit message to the employees.

the

the Board's

statements and

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

-9-

job site.

Thus

requiring a

"referral" from

the Union implied that the

employees would have

to join the Bricklayers Union in order to remain on the job.

Board then recounted the

Bricklayers Union's ongoing campaign to

force all finishers into the Union.

were

generally aware

including his

The

of

Both employers and employees

Barricelli's efforts

in this

threatening letters and oral statements.

regard,

Based on

Barricelli's actions, the employees would assume that in order to

obtain

a "referral,"

Union;

the

conclusion.

ongoing

Companies

could

that

to join

have

statements in the

the Board

requiring

have

reasonably

Thus viewing the

campaign,

conclusion

they would

had

substantial

"referral"

was

the Bricklayers

drawn

the

same

context of the

support for

tantamount

conditioning continued employment on union membership.

its

to

The Companies acknowledge in

that the

record evidence could

their brief to this Court

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

obtained

misconstrue

not

referral.

necessary so

(Pet.

Br.

long

at

the substantial evidence test.

as the

employees

The

Companies

Out task

is to ask

31).

whether the Board's conclusion rests on substantial evidence, not

whether some other conclusion

Camera, 340 U.S. at


______

Universal
_________

488; Teamsters Local Union No. 42 v.


_____________________________

825 F.2d 608, 612 (1st Cir.

151 (1st Cir. 1980).

is equally supportable.

NLRB,
____

1987); Andino v. NLRB, 619 F.2d 147,


______
____

The Companies' additional argument that the

Board's

conclusions relate to two employers not involved in this

-10-

appeal is

specific

also without

to those

merit.

The

two companies,

Board mentioned

but the

testimony

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

employees

loyalty

that

Bricklayers

failed to

Union.

up for

work

to the Carpenters

Union.

The

the

ALJ's finding

returned to

loyalty

ALJ had

show

was

indicated that some finishers

and

The

work,

prevented

only because

of

that

their

Board properly concluded

speculative.

The

record

later joined the Bricklayers Union

undercutting the

employees

contained statements

merely

concluded

from

ALJ's conclusion

working.

by the Companies that

The

that

record

also

work stoppages could

occur in Massachusetts and Connecticut, where they had collective

bargaining agreements with the Bricklayers Union, if employees in

those states did

conclusion

belief that

joining

the

not join

the Bricklayers Union.

that employees failed to show

they would

not be

Bricklayers

Union

Board's

up for work based on a

allowed to do

was

The

so without

therefore

first

supported

by

substantial evidence.

III.

For

the

foregoing

reasons,

ENFORCED.

-11-

the

Board's

order

is

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