
USCA1 Opinion

	




          April 8, 1993         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2163                           NATIONAL LABOR RELATIONS BOARD,                                     Petitioner,                                          v.                             OPTICA LEE BORINQUEN, INC.,                                     Respondent.                                 ____________________                   ON PETITION FOR ENFORCEMENT OF AN ORDER OF THE                             NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                            Cyr and Boudin, Circuit Judges,                                            ______________                          and Burns,* Senior District Judge.                                      _____________________                                 ____________________             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.                                 ____________________                                 ____________________                                    ____________________        *Of the District of Oregon, sitting by designation.                  Per Curiam.    Appellant  Optica  Lee  Borinquen  ("Optica")                  Per Curiam.                  __________        challenges, as moot,  a National Labor Relations Board  ("NLRB") peti-        tion for enforcement of a "cease and desist" order entered November 5,        1991.  We grant enforcement and assess double costs against Optica.                                          I.                                          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 appar-        ent reprisal  for their organizing activities.  Despite these tactics,        the  Union won its representation election and was certified on Novem-        ber 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 termi-                                                    _____ ____        nate 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 reinstate-        ment  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.                                         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  Book-                                              ___   ____  ____    ____________        binding 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                                          3        future time disavow.  The case is not moot[,] nor does present compli-        ance 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 activi-        ties 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  implicate this exception  to the        rule.   As numerous courts  have recognized, an  employer's compliance        may be temporary, and  noncompliance may resume if enforcement  is not        ordered by the court of appeals.   See P*I*E, 894 F.2d at 890  (citing                                           ___ _____        Olin  Industries, Inc. v.  NLRB, 72 F.Supp. 225,  229 (D. Mass. 1947))        ______________________     ____        (noting that "a remedial order issued by the Labor Board  is not self-        executing, [and] the respondent  can violate it with impunity  until a        court of  appeals issues an order  enforcing it").  "The  Act does not        require  the Board to play  hide-and-seek with those  guilty of unfair        labor practices."  Mexia Textile Mills, 339 U.S. at 568.                           ___________________                  Optica's brief seems to suggest that "there is no reasonable        expectation that a wrong will be repeated" because Optica "had differ-                                          4        ent legal representation" at  the time the violations  were committed.        The identity of the  company's counsel is irrelevant.   The management                                                                    __________        of the company remains the same, and                  the company's  refusal to bargain and  furnish in-                  formation has  been seen [by the Board] as part of                  a studied effort to erode the union's position and                  insulate  employees  from  their bargaining  agent                  .... On  this  history the  Board  may  reasonably                  desire the finality of  judicial resolution of its                  own decisions as well as a court order to serve as                  a  pointed  deterrent  against resumption  of  the                  illegal practices.        Pearl Bookbinding, 517 F.2d at 1114.        _________________                  We  grant enforcement of the  NLRB order.   Double costs and        reasonable  attorney fees of $ 500  are assessed against  Optica.  See                                                                           ___        Fed. R. App. P.  38;  Palmas Del Mar  Co. v. NLRB, 797 F.2d  39, 40-41                              ___________________    ____        (1st Cir. 1986); NLRB v. Bedford Discounters, Inc., 484 F.2d  923, 923                         ____    _________________________        (1st Cir.  1973);  NLRB  v. Smith & Wesson,  424 F.2d 1072,  1073 (1st                           ____     ______________        Cir. 1970).                  So ordered.                  __ _______                                          5
