Professional Documents
Culture Documents
No. 95-1992
Petitioners,
v.
Respondent.
____________________
____________________
Before
_____________________
was on
Attorney,
National
Associate
Associate General
General Counsel,
Counsel,
Labor
Relations
Charles
Donnelly,
__________________
Supervisory
____________________
____________________
The present
controversy has
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
findings.
findings
additional
supported
NLRB v.
____
and
that
by
and
We remanded
necessary
Act
membership
The Board
those
made the
findings
are
I.
Acme Tile
("Companies")
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
of the
Ceramic
Association
contractors headquartered
the
of
& Granite
of which
was effective
March 31,
1989.
-2-
The setters
Union
of
were represented
Bricklayers
("Bricklayers Union").
also
parties
Bricklayers
to
and
The
collective
by
Allied
Local 1
of the
Craftsmen
of
bargaining
International
Rhode
Island
Companies were
agreements
with
the
and
("Carpenters Union")
Union.
struggle
Carpenters Union
ensued.
Bricklayers Union
merging
into
between
In
the
Bricklayers
Local
of
the
Union
and
the
Barricelli, the
Bricklayers
Union.
Without
assurances that their local would retain its autonomy, Local 36-T
rejected
the
proposal.
"change their
minds,"
He told
them that
if they did
speak
the
to
local
Attempting
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
replace the
helpers
members
were
unpersuaded.
Barricelli
finishers represented
by the Carpenters
-3-
Union.
He
Union with
sent copies of
On March
29, 1989,
tile
finishers; the
Representatives of
claiming
addendum
became effective
the Companies
jurisdiction
over
signed an
all
finishers'
April 1,
1989.
Barricelli was
work
and
that
Bricklayer Union setters would not work with the Carpenters Union
after
Thus
would
not strike.
The agreement
of the
it appears that
that
the setters
the addendum
modified
Association's members
become members of
the Bricklayers
After
they
36-T.
and be
business agent
that
day and the Companies replaced them with finishers from the
Bricklayers Union.
the Companies,
to join
they
the Bricklayers
the Bricklayers
Union,
and terminated
their employees
Bricklayers Union.
-4-
support to
because
In April 1991, an
found
that
the employees on
The ALJ
Relations
to continue working.
Board ("Board")
reversed
The
the ALJ,
labor practices.
National Labor
holding that
In
the
so holding,
the
that on March 31
the union
by April 3.
to join
____
the employees be
We
noted
employees
that the
to
Act requires
join
an
construction industry.
seven-day grace
employer-recognized
29 U.S.C.
158(f).
two days
period --
Court.
period for
union
in
the
Thus only if
the
did they
violate the
the
ALJ's opinion,
as noted
Act.
above.
We therefore
of
vacated the
Board's order
employers
explicitly
or
a determination of
implicitly
conditioned
whether the
continued
F.2d at 556.
The
clarification.
Board
remanded
the
case
to
the
ALJ
for
-5-
Companies
did not
reversed.
The
Board
concluded that
by
conditioning
and the
continued
the
Board subsequently
Companies
Act, 29 U.S.C.
employment
violated
on
immediate
union
membership in derogation of
158(f).
It also
& (1),
the
of the Act by
union.
The
158(a)(3)
Board
again
ordered,
among
other
to join
things,
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
to "form,
join, or
employees
158(a)(1).
The
discriminating
term
or
exercise"
Act
Penntech
________
Cir.),
cert.
_____
and to
refrain
of
those
specifically
rights.
prohibits
29
or coerce
U.S.C.
employers
from
condition
membership in
22-23 (1st
employers to
in the
18,
record.
practice for
on the
of
employment to
encourage
29 U.S.C.
or
discourage
158(a)(3).
an employer
-6-
union
membership
as a
158(a)(3) (proviso).
Act:
condition of
employment.
29
U.S.C.
only require
union membership
the beginning of
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
union despite
the
security agreement.
practice if
existence of
In
addition,
a union
it terminates
an
failure to join
otherwise valid
an employer
an
union
who coerces
an unfair
an
labor
amounts to
The
Board
concluded
that
the
violated
Sections
contrary
Companies
"implicitly
employment on
immediate
conditioned
their
membership in
Companies'
Key to
Companies
requirement that
employees'
the Bricklayers
continued
Union."
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
-7-
to
Id.
___
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
implicitly
determination to
explicit
be based
on an
an explicit condition,
the Board's
984 F.2d
had essentially
membership an
any fair
or
its original
but we
had
from
the original
conditioned continued
at
but that
It is quite apparent
latest decision
that it
Deciding not to
base its
holding
contradicted
by
evidence supported
on the
other
testimony
testimony,
a finding
just mentioned,
the
Board
found
which
was
that
the
had implicitly
union membership.
The Board
complied with our remand instructions to the letter, and the only
substantial evidence.
On
the issue
ALJ's finding
of substantial
the Board
evidence,
the Companies
for rejecting
the
of the procedures under the new contract rather than coerced them
employers'
statements were
Union.
simply
observations of
that the
the natural
-8-
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,
afford
see
___
the ALJ
Universal
_________
(1951), we
do not
would it necessarily
that deference
continued employment
union.
Id.
___
(implying
in the substantial
only required
if it had.
evidence test).
to the
be dispositive
on union
expressly conditioned
membership -- that
a "referral," "approval," or
the Companies
unlawful
implicit
condition,
the Board
circumstances in
were
made.
The Board
relied
on
additional
which these
statements
findings
their
on
the
circumstances surrounding
the
the Board's
statements and
reason
Union.
reject
qualified journeymen
at a
-9-
job site.
Thus
requiring a
"referral" from
were
generally aware
including his
The
of
Barricelli's efforts
in this
regard,
Based on
obtain
a "referral,"
Union;
the
conclusion.
ongoing
Companies
could
that
to join
have
statements in the
the Board
requiring
have
reasonably
campaign,
conclusion
they would
had
substantial
"referral"
was
the Bricklayers
drawn
the
same
context of the
support for
tantamount
its
to
that the
support an inference
that union
union
membership was
obtained
misconstrue
not
referral.
necessary so
(Pet.
Br.
long
at
as the
employees
The
Companies
Out task
is to ask
31).
Universal
_________
is equally supportable.
NLRB,
____
Board's
-10-
appeal is
specific
also without
to those
merit.
The
two companies,
Board mentioned
but the
testimony
substantial evidence
Finally,
substantial
evidence
supports
the
Board's
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
and
The
work,
prevented
only because
of
that
their
speculative.
The
record
undercutting the
employees
contained statements
merely
concluded
from
ALJ's conclusion
working.
The
that
record
also
conclusion
belief that
joining
the
not join
they would
not be
Bricklayers
Union
Board's
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