National Labor Relations Board v. Acme Tile & Terrazzo Co.

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 & TERRAZZO CO.,
Respondents.
UNITED BROTHERHOOD OF CARPENTERS LOCAL 36-T,
Intervenor.
No. 92-1595
ACME TILE AND TERRAZZO CO.;
ADMIRAL TILE CO., INC.;
JOLICOEUR & RESMINI CO., INC.
AND ROMAN TILE & 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 & Petrocelli Ltd.,
were on brief for Acme Tile and Terrazzo Co.; Admiral Tile Co.,
Inc.; Jolicoeur & Resmini Co., Inc. and Roman Tile & 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 & 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
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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
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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.
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