UNPUBLISHED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.

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Enforcement granted by unpublished per curiam opinion.

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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.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 enforcement.

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 collective bargaining representative for a plant-wide unit. Bargaining commenced in October.

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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 company 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 petition 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 anniversary date of certification (October 12, 1990). This latter petition

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1 After an election, an incumbent union is entitled to a one-year irrebuttable 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.

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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, Charlotte 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 settlement, and (2) whether the certified bargaining unit continued to exist

in the wake of the sale and closure of the Suzy portion of the business. 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 continued its resistance, and so the Board has again petitioned for enforcement.

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 strenuous challenge to the Board's findings on the merits. Lorraine's pri-

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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 bargaining 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 Anesthesia 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). Lorraine'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 exclusively 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 similarities, but is not so nearly on point as to be dispositive. Most importantly, 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 certified 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 situation. 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 winning 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 willingness to unlawfully refuse to bargain and to litigate over it be permitted 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 exclusively with the particular union which represented a majority 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-

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mine charges of unfair labor practices might in this way be

made the occasion for further procedural delays in connection 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 justifications. 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. Prounion 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 moribund; 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, "coterminous" 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.

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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 imposition of a bargaining order was inappropriate. We disagree. A company 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

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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 practices 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).

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