N.L.R.B. v. Optica Lee Borinquen, Inc.

Decision Date08 April 1993
Docket NumberNo. 92-2163,92-2163
Citation991 F.2d 786
PartiesNOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OPTICA LEE BORINQUEN, INC., Respondent.
CourtU.S. Court of Appeals — First Circuit

ON PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

Frederick C. Havard, Supervisory Attorney, National Labor Relations Board, with whom Marilyn O'Rourke, Attorney, Jerry M. Hunter, General Counsel, Yvonne T. Dixon, Acting Deputy General Counsel, Nicholas E. Karatinos, Acting Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on brief for petitioner.

John F. Conrad Rodriguez and Lespier & Munoz-Noya on brief for respondent.

N.L.R.B.

ORDER ENFORCED.

Before Cyr and Boudin, Circuit Judges, and Burns, * Senior District Judge.

Per Curiam.

Appellant Optica Lee Borinquen ("Optica") challenges, as moot, a National Labor Relations Board ("NLRB") petition for enforcement of a "cease and desist" order entered November 5, 1991. We grant enforcement and assess double costs against Optica.

I.

Optica owns 32 optical stores in Puerto Rico. In 1989, after a change in management, Optica proposed certain changes in work rules for optometrists at its stores. The optometrists responded by organizing a union, Federacion de Optometras de Puerto Rico ("the Union"). Optica's management campaigned aggressively against the Union, and several employees were terminated or transferred in apparent reprisal for their organizing activities. Despite these tactics, the Union won its representation election and was certified on November 3, 1989. Ignoring the election results, and refusing to negotiate with the Union, Optica went ahead with its new work rules. The Union filed an unfair labor practice complaint.

On November 5, 1991, an administrative law judge issued a "cease and desist" order requiring Optica, inter alia, (1) to terminate its harassment of pro-Union employees; (2) to reinstate the work rules that existed before the Union was designated as bargaining representative; (3) to notify the Union, and bargain in good faith, before making changes in these work rules; (4) to post the order in all stores; and (5) to offer certain discharged employees reinstatement and back pay. An NLRB appeals panel adopted the order, with minor changes, on May 26, 1992.

On October 5, 1992, the NLRB filed the instant petition for enforcement of the order. Optica resists. It does not challenge the ALJ's findings, or the statutory or equitable bases for the Board's enforcement petition, but asserts that it has complied with the order to the extent possible, and that any remaining areas of noncompliance stem from the Union's own failure to cooperate. By virtue of its "substantial compliance" with the terms of the order, Optica suggests, the NLRB enforcement proceeding is moot.

II.

Optica's petition is frivolous. As the Supreme Court repeatedly has ruled, see NLRB v. Raytheon Co., 398 U.S. 25, 26-27 (1970); NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563, 567 (1950), a "cease and desist" order targeting unlawful behavior (e.g., refusal to bargain in good faith) "is not made moot by the employer's abandonment ... of the unlawful activity." NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887, 890 (7th Cir. 1990). The First Circuit has endorsed this rule in several published opinions. See, e.g., NLRB v. Pearl Bookbinding Co., 517 F.2d 1108, 1114 (1st Cir. 1975) ("[F]or the time being, at least, the company is complying [with the NLRB order. But] the Company has not conceded the illegality of its conduct, and the Board's orders impose requirements which the company might at some future time disavow. The case is not moot[,] nor does present compliance deprive this court of power to decide the disputed issues"); see also NLRB v. Local 1445, United Food & Comm'l Workers, 647 F.2d 214, 217-18 (1st Cir. 1981) ("the Union's cessation of its illegal activities does not render [an NLRB enforcement action] moot") (citations omitted).

It is true that certain cases support the denial of a petition for enforcement when a party can establish that there is "no reasonable expectation that a wrong will be repeated." United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953); NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 428 (1947); Local 1445, 647 F.2d at 218. But even if Optica has complied to the fullest extent possible with the NLRB order, as it asserts, mere compliance with the provisions of a cease and desist order would not...

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