Acme Tile & Terrazzo v. NLRB

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, 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 &
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 & 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.
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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.
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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
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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
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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) & (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)
& (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
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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
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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
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"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
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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.
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