-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1965
TRESCA BROTHERS SAND AND GRAVEL, INC.,
Plaintiff, Appellant,
v.
TRUCK DRIVERS UNION, LOCAL 170,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
____________________
Robert P. Corcoran, with whom Gleeson & Corcoran was on brief for __________________ __________________
appellant.
Raymond J. Reed, with whom Reed & Reed was on brief for appellee. _______________ ___________
____________________
March 25, 1994
____________________
CYR, Circuit Judge. Tresca Brothers Sand & Gravel, CYR, Circuit Judge. _____________
Inc. (Tresca) brought suit under section 303(b) of the National
Labor Relations Act (NLRA), 29 U.S.C. 187(b), charging defen-
dant-appellee Truck Drivers Union, Local 170 (Local 170 or the
Union) with unfair labor practices during contract negotiations.
Following a two-day bench trial, the district court concluded
that a subcontracting proposal advanced by the Union during a
strike had indeed violated both NLRA sections 8(b)(4) and 8(e),
29 U.S.C. 158(b)(4), (e), which prohibit, respectively, compul-
sion against an employer to require any self-employed person to
join a labor organization, and to require an employer to cease
doing business with any party. The district court nevertheless
found that Tresca had not established a sufficient causal link
between the unlawful Union conduct and the injury Tresca alleged-
ly sustained as a result of the strike.
In March 1991, Tresca, in coalition with four other
ready-mix concrete companies (collectively "the Companies"),
began contract renewal negotiations with Local 170.1 By all
accounts, negotiations were contentious from the outset. The
Companies sought significant work-rule modifications (e.g., a ____
reduction from eight to four guaranteed hours' pay for each day a
driver is called to work) and benefit eligibility restrictions,
which the Union considered unacceptable. The Union proposed
____________________
1We outline only the background necessary to an understand-
ing of the narrow issue presented on appeal.
2
forty-two separate modifications to the existing contract,
including the elimination of the arbitration clause and the
addition of a subcontracting clause, both deemed unacceptable by
the Companies. After five acrimonious bargaining sessions, the
parties remained at loggerheads. On May 4, 1991, the membership
of Local 170 rejected the latest contract proposal by the Compa-
nies and voted to go out on strike. Although additional bargain-
ing sessions were convened during the strike, the stalemate
continued.
The focal point of this appeal is the subcontracting
proposal made by the Union at the May 9 bargaining session,
whereby the Companies would be required to sever their business
relationships with all non-union owner-operators hauling sand and
gravel for the Companies. The parties agree that the Union's May
9 proposal was unlawful.
At a June 13 bargaining session, after the Companies
had filed a complaint with the National Labor Relations Board
(NLRB), the Union formally withdrew the unlawful May 9 subcon-
tracting proposal.2 The Companies' most recent "final" contract
proposal, containing demands for significant work-rule changes,
was rejected by the membership of Local 170 the very next day, on
June 14. In short order, the employers' coalition dissolved and
individual companies began separate contract negotiations with
____________________
2The NLRB declined to issue a complaint. Teamsters Local _______________
170, N.L.R.B. Nos. 1-CC-2363 (1-2) (Aug. 15, 1991). ___
3
the Union. Tresca and the Union were never able to resolve their
differences. Replacement workers were hired and the strike
continues to this day.
The central dispute at trial concerned the importance
attached by the Union leadership and membership to the Union's
unlawful subcontracting proposal and its significance in the
decision to strike. The Union contended that economic issues and
the work-rule concessions sought by the Companies were always at
the heart of the dispute. Tresca insisted that the illegal
subcontracting proposal was presented as an ultimatum by the
Union's negotiators and dominated the contract negotiations.
DISCUSSION DISCUSSION __________
Both parties endorse the applicable legal standard as
explained by the district court:
In order to make a legal claim under Section
303(b) of the NLRA, a party must prove that
it was injured "by reason of" an unfair labor
practice. [This phrase] has been interpreted
to mean there must be some causal nexus be-
tween the unfair labor practice and the inju-
ry allegedly suffered. Mead v. Retail Clerks ____ _____________
Int'l Ass'n, 523 F.2d 1371, 1378-79 n.9 (9th ___________
Cir. 1975) (no liability if an illegal moti-
vation is merely "an object" of a strike),
cited with approval, John B. Cruz Constr. Co. ___________________ ________________________
v. [United] Bhd. of Carpenters and Joiners, _________________________________________
907 F.2d 1228, 1232 (1st Cir. 1990); see ___
Feather v. United Mine Workers, 903 F.2d 961, _______ ___________________
965-66 (3rd Cir. 1990). Under what has be-
come known as the Mead test, injury occurs ____
"by reason of" particular unlawful conduct
only if that conduct "materially contributes"
4
to the injury or is a "substantial factor" in
bringing it about. Mead, 523 F.2d at 1376. ____
Tresca Brothers Sand & Gravel v. Truck Drivers Union, Local 170, ______________________________ ______________________________
CA No. 91-11590-T, slip op. at 3 (D. Mass. July 29, 1993).
Although Tresca attempts on appeal to couch its contention as a
challenge to the district court's application of the Mead ____
multiple-motivation test,3 its assignments of error all presume
"clear error" in the district court's central finding of fact
that "[a]t no time were the Union's subcontracting proposals ever ___ __ ____ ____ ___ _______ ______________ _________ ____
a motivation for the strike." Id. at 8 (emphasis added). _ __________ ___ ___ ______ ___
Obviously, unless the unlawful subcontracting proposal was a _
motivation, it could not have been a "substantial factor" in
bringing about the strike; and Tresca cannot prevail on its Mead- ____
test contention however characterized.
We review the district court's findings of fact for
clear error. John B. Cruz Constr. Co. v. United Bhd. of ___________________________ ________________
Carpenters and Joiners, 907 F.2d 1228, 1230 (1st Cir. 1990). _______________________
Thus, the central finding in this case "will be given effect
unless, after reading the record with care and making due
allowance for the trier's superior ability to gauge credibility,
____________________
3Tresca argues that the district court failed to appreciate
that a strike may be motivated by more than one "substantial
factor," Frito-Lay, Inc. v. International Bhd. of Teamsters, ________________ __________________________________
Local 137, 623 F.2d 1354, 1363 (9th Cir.), cert. denied, 449 U.S. _________ _____ ______
1013 (1980), and that unlawful conduct may be a substantial
motivating factor even though other factors standing alone would
have been sufficient to prompt a strike, see Feather v. United ___ _______ ______
Mine Workers, 903 F.2d 961, 966 n.11 (3d Cir. 1990). ____________
5
[we form] 'a strong, unyielding belief that a mistake has been
made.'" Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 ________________ _____________________________
F.2d 453, 457 (1st Cir. 1992) (quoting Cumpiano v. Banco ________ _____
Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990)); see ______________________ ___
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) ("If the ________ ______________
district court's account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.").
A careful review of the entire record discloses no clear error in
the finding that the unlawful subcontracting proposal was not a
motivation for the strike.
First, the unlawful subcontracting proposal was not
made until after Local 170 voted to strike Tresca on May 4. _____
Second, Tresca concedes that the Union membership was never __________
motivated by the subcontracting proposal. Third, the Union
membership rejected another contract proposal by the Companies
immediately after the Union's unlawful subcontracting proposal _____
was withdrawn on June 13. Thus, there is no dispute that before,
during, and after the time the unlawful subcontracting proposal
was on the bargaining table, the Union membership was motivated
by other concerns unrelated to the subcontracting proposal
for which the membership was ready to strike. This
circumstantial evidence alone provided plausible support for the
district court finding.
6
There remains only the question of the motivations of
Union negotiators.4 Tresca insists that there is uncontroverted
evidence that the Union negotiators presented the unlawful
subcontracting proposal as an ultimatum. The record simply does
not bear this out. The witnesses presented by the parties at
trial gave diametrically opposed accounts as to when the
subcontracting proposal was presented and whether subcontracting
was the key issue, as Tresca maintains, or simply a bargaining ___
chip, as the Union claims. The only objective non-testimonial
evidence presented by Tresca indicates that the subcontracting
proposal first surfaced at the May 9 bargaining session. But the
timing of the subcontracting proposal, while relevant, does not
determine the outcome of the motivation test required under Mead. ____
Rather, in the present context, the question whether the strike,
or its prolongment, was motivated by the subcontracting proposal
turns on the actions and intent of the Union representatives ______
responsible for the decision to inject it as an element in the
collective bargaining.
The chief negotiator for the Union specifically denied
that the May 9 subcontracting proposal was ever presented as an
____________________
4The record does not support Tresca's unnatural reading that
the district court's findings on motivation for the strike, see ___
supra at p.4, addressed only the motivations of the striking _____
employees and not those of the Union negotiators. The district
court finding itself contains no such qualification, nor is there
any evidence that the strike motivations harbored by the ___________
membership differed substantially from those of the Union
negotiators.
7
ultimatum, and expressly denied that it was ever a motivation for _ __________ ___
the strike. The district court clearly credited the testimony of ___ ______
Local 170's chief negotiator.5
"[W]hen factual findings are based on determinations
regarding the credibility of witnesses, Rule 52 demands that the
appeals court accord even greater deference to the trial court's
findings." Rodriguez-Morales v. Veterans Admin., 931 F.2d 980, _________________ _______________
982 (1st Cir. 1991) (citing cases); see also Anderson, 470 U.S. ___ ____ ________
at 573. Based on its credibility determination relating to the
Union's motivation, and the undisputed fact that the
subcontracting proposal was not a strike motivation for the Union
membership, there was no clear error in the district court
finding that the May 9 subcontracting proposal was not a
motivation behind the strike. Accordingly, we affirm its ruling
that Union liability under NLRA 303(b) was foreclosed.
Affirmed. Affirmed. ________
____________________
5Near the end of the trial, the district court outlined for
counsel the credibility problem confronting Tresca:
You have had a witness on the stand here who said that
[the Union's negotiator] says "I am going to get this
[subcontracting] proposal . . . I have been wanting to
do it a hundred years and this is life or death.
Without this, nothing."
. . . I presume that somebody is going to
corroborate it. These are the people that were there.
Are they going to corroborate it or aren't they? There
is no subtlety here. Either it happened or it didn't.
If it happened, you've got a slam dunk. If it
didn't, you have a problem.
Trial Tr. at 42-43, July 22, 1993.
8
Document Info
Docket Number： 93-1965
Filed Date： 3/25/1994
Precedential Status： Precedential
Modified Date： 9/21/2015