Lee Lumber and Bldg. Material Corp. v. N.L.R.B.

• Decision Date: 15 November 2002
• Docket Number: No. 01-1336.,01-1336.
• Citation: 310 F.3d 209
• Parties: LEE LUMBER AND BUILDING MATERIAL CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

310 F.3d 209

LEE LUMBER AND BUILDING MATERIAL CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 01-1336.

United States Court of Appeals, District of Columbia Circuit.

Argued October 8, 2002.

Decided November 15, 2002.

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

James S. Frank argued the cause for petitioner. With him on the briefs was Steven M. Post.

Frederick C. Havard, Supervisory Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Bridget O'Connor, Attorney. Jill A. Griffin, Attorney, entered an appearance.

Before: SENTELLE, ROGERS, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Circuit Judge SENTELLE.

GARLAND, Circuit Judge:

Lee Lumber and Building Material Corporation petitions for review of a National Labor Relations Board (NLRB) decision, while the Board cross-applies for enforcement. The Board held that the company committed several unfair labor practices, including an unlawful refusal to bargain, and ordered it to cease and desist from such practices. We read the scope of the Board's decision as applied to Lee Lumber to be significantly more limited than does the company, and accordingly we do not reach some of the broader points upon which the company requests rulings. We deny Lee Lumber's petition and grant the Board's cross-application for enforcement.

I

Lee Lumber's petition brings this case to us for the second time, twelve years after the events from which it originally arose. In 1997, we reviewed an earlier Board decision that held that the company committed a number of violations of sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) & (5), and that (inter alia) ordered the company to bargain with Carpenter Local No. 1027. Lee Lumber and Building Material Corp. v. NLRB (Lee Lumber I), 117 F.3d 1454 (D.C.Cir.1997). We affirmed the Board's decision in all respects but two, and remanded the case for further proceedings. Id. at 1456, 1458. Our earlier opinion sets forth in detail the facts and procedural history that we review here.

A

In October 1988, the NLRB certified Carpenter Local 1027 as the exclusive bargaining representative of petitioner's mill shop employees. The company and the union entered into a collective bargaining agreement that was effective from May 26, 1989, through May 25, 1990. In February 1990, the union informed the company that it wanted to begin negotiating for a renewal contract. Around that time, the employees conducted a straw poll that indicated that a majority still wished to be represented by the union.

Sometime after the poll, two employees prepared and began circulating a petition seeking decertification of the union. A majority of the employees signed the petition, and the company allowed the employees to take paid time off from work to bring the petition to the Board's regional office, notwithstanding the company's general rule against payment for time spent away from work on personal business. It also assisted the employees with transportation and parking expenses. On March 29, the union filed its first unfair labor practice charge against Lee Lumber, alleging illegal assistance to the employees' decertification efforts. On April 11, relying on the pending decertification petition, the company refused to bargain with the union. On May 8, however, after the union filed another unfair labor practice charge alleging an unlawful refusal to bargain, the company agreed to negotiate.

The parties held the first of five bargaining sessions on May 23 and the last on June 25. By the end of those sessions, they had almost reached agreement on a new contract, and had scheduled a sixth session for July 3. On July 2, however, the company received a second petition signed by a majority of employees, this one stating that the group "hereby decertified [the union]." Upon receiving the petition, the company refused to bargain further, and subsequently withdrew its recognition from the union and made unilateral changes in the unit employees' terms and conditions of employment. Thereafter, the union filed additional unfair labor practice charges against the company.

On February 27, 1992, the NLRB issued its initial decision in this matter. 306 NLRB 408, 1992 WL 41348 (1992). The Board found that Lee Lumber violated sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. § 158(a)(1) & (5), by providing unlawful assistance to the employees who filed the April decertification petition, by refusing to bargain with the union in April, and by failing to provide the union with requested information. The Board also found that the company violated section 8(a)(5) by again refusing to bargain in July, and by later withdrawing recognition and unilaterally changing the terms and conditions of employment. The Board held that the company could not rely on the employees' July petition as objective evidence of the union's loss of support, because it was tainted by the company's unlawful refusal to bargain in April and by its unlawful assistance to the employees' decertification efforts.

As a remedy, the Board issued an affirmative bargaining order, requiring the company to recognize and bargain with the union. It also ordered the company to resume payments to a union apprenticeship fund, to make the fund whole for past delinquencies, and to post copies of the usual notice acknowledging that the Board found that the company had violated the NLRA and averring that the company would not do so in the future.

Lee Lumber filed a petition for review in this court on March 26, 1992. The NLRB moved to dismiss the petition without prejudice so that it could reconsider, in light of two of our intervening decisions,¹ its positions on the lawfulness of the July withdrawal of recognition and on the appropriateness of an affirmative bargaining order. We granted the Board's motion and, four years later, the Board issued a Supplemental Decision and Order reaffirming its original decision on both issues. 322 NLRB 175, 1996 WL 523011 (1996). The Board held that when an employer unlawfully refuses to recognize or bargain with an incumbent union, and the union subsequently loses majority support, there is a presumption that the employees' disaffection from the union is the result of the employer's unlawful conduct. Absent unusual circumstances, this presumption of taint may be "rebutted only by an employer's showing that employee disaffection arose after the employer resumed its recognition of the union and bargained for a reasonable period of time without committing any additional unfair labor practices that would detrimentally affect the bargaining." Id. at 178 (emphasis added). The Board held that Lee Lumber failed to overcome the presumption because it did not bargain for a reasonable period.

Following issuance of the Supplemental Decision in 1996, the company again petitioned for review in this court. In Lee Lumber I, issued in 1997, we held that the Board's rebuttable presumption of taint, including its "reasonable period of time" requirement, was both "rational" and "consistent with" the NLRA. 117 F.3d at 1459. Noting that "Lee Lumber has raised numerous [other] challenges to the Board's handling of its case," we affirmed the Board "in all respects" save two. Id. at 1462.

First, we held that the Board inadequately explained its application of the reasonable period of time test to Lee Lumber. Although the Board had announced that its determination of what constituted a "reasonable" period would "`not depend on either the passage of time or on the number of meetings between the parties, but instead on what transpired and what was accomplished during the meetings,'" it failed to apply this standard in deciding Lee Lumber's case. Id. (quoting Supplemental Decision, 322 NLRB at 179). Rather, the Board looked primarily at the number of sessions the parties had held and the length of time that had passed, and apparently ignored the considerable progress the parties had made by the time of the break-off in negotiations. We held that the "Board's failure to explain this inconsistency is arbitrary," and "remand[ed] the question to the Board for correction of this flaw." Id. We further suggested that "[o]n remand the Board may also wish to provide a fuller explanation of its `reasonable period of time' standard" because, "[a]s it stands now, it is not entirely clear how any of the ... factors cut." Id.

Second, we criticized the Board's decision to issue an affirmative bargaining order. Such an order "requires a company to bargain with the union" and "also imposes a `decertification bar' on employees." 117 F.3d at 1460. As a consequence, the "union that is the subject of the bargaining order will continue as the employees' representative, regardless of the employees' wishes, until a `reasonable time' has passed." Id. at 1460-61. We reminded the Board that this circuit has "repeatedly held" that the Board may not impose an affirmative bargaining order unless it "explain[s] why that remedy is appropriate given the facts of that particular case." Id. (citing Caterair Int'l v. NLRB, 22 F.3d 1114, 1123 (D.C.Cir.1994); Williams Enters., 956 F.2d at 1237; Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35, 46 (D.C.Cir. 1980)). Since the Board did not make "the particularized findings that our case law requires," we remanded "with instructions to either vacate the order or explain why an affirmative bargaining order is necessary given the facts of this case." Id. at 1462. Moreover, "[w]ithout deciding the issue," we expressed "serious doubt as to how the Board possibly could make a determination that a bargaining...