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
-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" date_filed="1983-04-26" court="1st Cir." case_name="Penntech Papers v. National Labor Relations Board">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-