NLRB v. Suzy Curtains

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.
No. 95-2856
SUZY CURTAINS, INCORPORATED, and
LORRAINE HOME FASHIONS OF CHINA,
Respondents.

On Application for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-13913, 11-CA-13980, 11-CA-14114, 11-CA-14219)

Argued: June 6, 1996

Decided: February 11, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

_________________________________________________________________

Enforcement granted by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Melvin Haas, III, HAYNSWORTH, BALDWIN,
JOHNSON & HARPER, Macon, Georgia, for Suzy Curtains. Lisa
Richardson Shearin, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for NLRB. ON BRIEF: William M. Clifton, III,
HAYNSWORTH, BALDWIN, JOHNSON, & HARPER, Macon,
Georgia, for Suzy Curtains. Frederick L. Feinstein, General Counsel,
Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Frederick C. Havard, Supervisory Attor-
ney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for NLRB.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The National Labor Relations Board ("Board") petitions for
enforcement of its order that Lorraine Home Fashions of China
("Lorraine") recognize as its employees' representative and bargain
with the Amalgamated Clothing and Textile Workers Union ("the
union") for a period of six months, and remedy certain other unfair
labor practices. Because the decision of the Board is in accordance
with law and has substantial support in the record, we grant enforce-
ment.

I.

Suzy Curtains, Inc. ("Suzy"), and Lorraine were two closely related
companies. They shared common directors, management, and labor
policy, and they were considered a "single employer" for labor law
purposes. Suzy was a manufacturing business; it employed over 130
workers involved in the cutting and sewing of curtains. Lorraine was
and is an international trader and warehouse. It imports ready-made
curtains from China, which it resells to domestic customers. Lorraine
has around 30 employees. Suzy and Lorraine held themselves out to
the public as a single enterprise.

In the fall of 1989, following an election in which over 150
Suzy/Lorraine employees voted, the union was certified as the collec-
tive bargaining representative for a plant-wide unit. Bargaining com-
menced in October.

2
On February 16, 1990, four months into the bargaining, the
Board's regional director filed a complaint against Suzy and Lorraine,
alleging various unfair labor practices, e.g. threatening loss of wages
if the employees selected the union, interrogating employees about
their union activities, discharging an employee for union activity, and
others of a similar ilk. These charges were settled in May. The com-
pany did not admit that it had committed the unfair labor practices,
but it agreed to post a Notice to Employees promising to obey the
law. This notice was posted from May 25 through July 24.

Problems persisted. In June, the company unilaterally reorganized
the warehouse in a manner that shifted work from the bargaining unit
to a non-union supervisory position, in violation of 29 U.S.C.
§ 158(a)(1) and (a)(5).

On June 28, the company informed the union that any agreement
should be coterminous with the anniversary of the union's certification.1
This notice was prompted by a decertification petition. Though the
petition was signed by a minority of the employees (74 of 150), the
company accepted the assurance of the anti-union sponsor of the peti-
tion that others wanted to sign but were afraid to. The number and
identities of these supposed union opponents have never been
revealed.

This "coterminous" proposal brought effective bargaining to a halt,
and the pace of unfair labor practices picked up. Employees were
selectively disciplined or not disciplined for similar conduct based on
union sympathies. An employee was told that the subject of raises had
to wait until October "because of the union." Reasonable union
requests for information necessary for bargaining met resistance.
More unilateral changes in policies were imposed. In July, the union
brought numerous unfair labor practice charges against the company.
On October 15, 1990, the company withdrew recognition of the
union, based on a second decertification petition received on the anni-
versary date of certification (October 12, 1990). This latter petition
_________________________________________________________________
1 After an election, an incumbent union is entitled to a one-year irrebut-
table presumption of majority status. Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27, 37 (1987). After a year, the presumption
continues, but it is rebuttable. Id. at 38.

3
was signed by a majority of then-current employees (76 of 139),
though it was subsequently found invalid by an administrative law
judge (ALJ) and the Board.

While the charges were pending before the ALJ, Suzy was sold to
an unrelated company, Charlotte Curtains, Inc. On October 4, 1991,
the ALJ issued a decision. The ALJ found that Suzy/Lorraine had
committed the unfair labor practice charges. The ALJ's recommended
order included an obligation for the companies to bargain with the
union for an additional year.

On December 16, 1992, the Board upheld the ALJ's order against
Lorraine in all material respects, except that it reduced the term of
additional bargaining to six months. The same day, Charlotte Curtains
settled the charges it had inherited from Suzy. Within weeks, Char-
lotte had closed the former Suzy factory.

Lorraine resisted the Board's order, and the Board petitioned this
court for enforcement. We remanded the case for consideration of two
issues: (1) whether Lorraine should be covered by the Charlotte settle-
ment, and (2) whether the certified bargaining unit continued to exist
in the wake of the sale and closure of the Suzy portion of the busi-
ness. NLRB v. Suzy Curtains, Inc., No. 93-1317 (4th Cir. Mar. 3,
1994). On remand, the Board answered the first question no and the
second yes. It therefore adhered to its earlier order. Lorraine contin-
ued its resistance, and so the Board has again petitioned for enforce-
ment.

II.

We must enforce the order of the Board if it is in accordance with
law and has "substantial support in the record as a whole[.]" NLRB
v. Nueva Engineering, Inc., 761 F.2d 961, 965 (4th Cir. 1985).

A.

Other than to the finding of a violation of 29 U.S.C. § 158(a)(5)
arising from the "coterminous" proposal, Lorraine mounts no strenu-
ous challenge to the Board's findings on the merits. Lorraine's pri-

4
mary position is that the passage of time and reorganization of its
business have conspired to relieve it of its obligation to bargain with
the union. According to Lorraine, the unit with which it must bargain
no longer exists. The Board found otherwise.

A decision of the Board concerning the appropriateness of a bar-
gaining unit is entitled to considerable deference, and it is disturbed
only if it constitutes an abuse of the Board's wide discretion. Packard
Motor Car Co. v. NLRB, 330 U.S. 485, 491 (1947); Fair Oaks Anes-
thesia Associates v. NLRB, 975 F.2d 1068, 1071 (4th Cir. 1992). The
Board gave cogent reasons for continuing to recognize the certified
unit at Lorraine:

Although it is no longer engaged in manufacturing, the
Respondent continues to perform shipping and receiving
work at the same location from which it had previously
operated. By the respondent's own description, Lorraine
employs about the same number of unit employees now (26)
as it did at the time of the election (approximately 30). Lor-
raine's employees currently perform the same type of work
under the same conditions and supervision as they did when
the manufacturing operation existed. The bargaining unit is
still a wall-to-wall, plantwide unit, albeit composed exclu-
sively of warehouse-type employees and therefore more
homogenous than it had been at the time of the certification.

Though some may disagree with this reasoning, it surely does not fall
outside the Board's "wide discretion."

B.

Lorraine argues that the Board should have followed Plymouth
Shoe Co., 185 NLRB 732 (1970). Plymouth Shoe has some facial sim-
ilarities, but is not so nearly on point as to be dispositive. Most impor-
tantly, in Plymouth Shoe, there was no incumbent union. An election
had been held, but the result had been thrown out. Meanwhile, 96%
of the bargaining unit employees had been terminated, and the nature
and scale of the operation had been fundamentally changed. The
Board declined to order a new election based on the originally certi-
fied unit.

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Here, the diminution in unit membership is less-- about 80% --
and the remaining employees have seen no change in their work situa-
tion. Finally, the Board reasoned that there is a difference between
setting up a unit in the first place for an election-- as in Plymouth
Shoe -- and recognizing the continued vitality of a certified unit with
an incumbent union. We agree with the Board.

C.

Next, Lorraine points out that, because of passage of time and
employee turnover, only a few employees who voted in the union
election remain. Moreover, the union has not been active at Lorraine
during this lengthy litigation.

These concerns strike at a very real problem. Surely the best justice
in the workplace is swift justice, which our administrative and judicial
processes are often ill-equipped to dispense. A decision coming
months or years after the fact may provide cold comfort to the win-
ning litigant and may unnecessarily magnify the consequences for the
loser (e.g. backpay awards).

Nevertheless, time is the price we must pay if we are to have due
process of law. Thus, mere passage of time cannot ordinarily be given
any weight in an unfair labor practice case, lest an employer's will-
ingness to unlawfully refuse to bargain and to litigate over it be per-
mitted to work to its advantage. As Justice Black wrote for a
unanimous Supreme Court over fifty years ago:

[T]he Board . . . requires that an employer bargain exclu-
sively with the particular union which represented a major-
ity of employees at the time of the wrongful refusal to
bargain despite the union's subsequent failure to retain its
majority. The Board might well think that, were it not to
adopt this type of remedy, but instead order elections upon
every claim that a shift in union membership had occurred
during proceedings occasioned by the employer's wrongful
refusal to bargain, recalcitrant employers might be able by
continued opposition to union membership indefinitely to
postpone performance of their statutory obligation. In the
Board's view, procedural delays necessary fairly to deter-

6
 mine charges of unfair labor practices might in this way be
made the occasion for further procedural delays in connec-
tion with repeated requests for elections, thus providing
employers a chance to profit from a stubborn refusal to
abide by the law.

Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944). Accord, NLRB
v. Katz, 369 U.S. 736, 748 n.16 (1962); National Posters, Inc. v.
NLRB, 885 F.2d 175, 180 (4th Cir. 1989), cert. denied, 494 U.S. 1026
(1990).

Aside from being longstanding law, this rule has other justifica-
tions. There is no reason to assume that Lorraine's"new" employees
do not support the union. There are many union shops-- like those
in mining, transportation, and heavy industry -- where no one, or
practically no one, who originally voted for the union remains. Pro-
union sentiment has endured, however. Moreover, the lack of union
activity at Lorraine is not surprising in light of Lorraine's refusals to
recognize and bargain. What else is the union to do? It is not mori-
bund; it stands ready to bargain. Indeed, it made a bargaining demand
immediately after the Board's decision on remand.

III.

Because the Board's finding that the certified unit continues to
exist must be sustained, we turn briefly to the merits of the key unfair
labor practice found by the Board -- the June 28, 1990, "cotermi-
nous" proposal. Such a proposal is, in essence, a challenge to the
union's majority status, to be effective as soon as the presumption of
such status becomes rebuttable.

Lorraine argues that a decertification petition signed by 74 of 150
employees is a "sufficient objective basis" for a "good-faith doubt" of
the union's majority status. See NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 778 (1990) (stating test for when an employer may
legally refuse to bargain with an incumbent union). The Board
responds that 76 is more than 74, and that there was no objective basis
for Lorraine to posit that there were more employees against the
union than those who signed.

7
The Board's decision is manifestly based on substantial evidence
-- 76 is more than 74. We therefore affirm it. 2

IV.

Finally, Lorraine argues that, even if it violated the Act, the imposi-
tion of a bargaining order was inappropriate. We disagree. A com-
pany that has been found to have unlawfully failed to bargain should
be ordered to bargain. See Franks Bros., 321 U.S. at 705; NLRB v.
Williams Enterprises, 50 F.3d 1280, 1289 (4th Cir. 1995).

For the foregoing reasons, we grant enforcement of the order of the
Board.

ENFORCEMENT GRANTED
_________________________________________________________________
2 We cannot address whether the unfair labor practice charge based on
the June 28 "coterminous" proposal would be sustainable under the
ALJ's alternative rationale (prior and contemporaneous unfair labor prac-
tices made the decertification petition unreliable). Because the Board
relied solely on the lack of a numerically objective basis to question the
union's majority status, we are limited to its reasons under the doctrine
of SEC v. Chenery Corp., 318 U.S. 80 (1943).

8