Lee Lumber & Building Material Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 8, 2002 Decided November 15, 2002

No. 01-1336

Lee Lumber and Building Material Corp.,

Petitioner

v.

National Labor Relations Board,

Respondent

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 La-

bor 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 Materi-

al 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 unlaw-

ful 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. s 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 con-

ducted a straw poll that indicated that a majority still wished

to be represented by the union.

Sometime after the poll, two employees prepared and be-

gan 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 ex-

penses. On March 29, the union filed its first unfair labor

practice charge against Lee Lumber, alleging illegal assis-

tance 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 negoti-

ate.

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 con-

tract, 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 em-

ployment. 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). The Board found that

Lee Lumber violated sections 8(a)(1) and (5) of the NLRA, 29

U.S.C. s 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 recogni-

tion 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). 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' disaffec-

tion 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

__________

1 See Sullivan Indus. v. NLRB, 957 F.2d 890 (D.C. Cir. 1992);

Williams Enters., Inc. v. NLRB, 956 F.2d 1226 (D.C. Cir. 1992).

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.2d 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 deter-

mination 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 tran-

spired 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 explana-

tion 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, regard-

less 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 "seri-

ous doubt as to how the Board possibly could make a determi-

nation that a bargaining order was appropriate on the facts of

this case." Id.

B

In June 2001, the Board issued its Second Supplemental

Decision and Order, addressing the issues we had remanded.

334 NLRB No. 62 (2001). Pursuant to our remand, the

Board announced that it had reconsidered its "reasonable

period of time" standard and had concluded that a new rule

was appropriate. Although the Board had not previously

required that a "reasonable period of time" be of any mini-

mum length, it now concluded that "an insulated period of a

defined length" was necessary and would "provide a measure

of certainty that [was] lacking under existing law." Id. at 4.

Under the new rule, "when an employer has unlawfully

refused to recognize or bargain with an incumbent union, a

reasonable period of time for bargaining before the union's

majority status can be challenged will be no less than 6

months, but no more than 1 year." Id. at 1. To determine

whether the period will be longer than the mandatory six

months, the Board said it would employ "a multifactor analy-

sis," using factors "similar to those the Board has been

examining for years." Id. at 4. These include:

(1) whether the parties are bargaining for an initial

contract; (2) the complexity of the issues being negotiat-

ed and of the parties' bargaining processes; (3) the

amount of time elapsed since bargaining commenced and

the number of bargaining sessions; (4) the amount of

progress made in negotiations and how near the parties

are to concluding an agreement; and (5) whether the

parties are at impasse.

Id.

In discussing these factors individually, the Board ad-

dressed the specific concerns raised in our opinion. First,

while acknowledging that its prior statements may have been

misleading, the Board explained that it had not meant to

imply that the passage of time or the number of meetings is

irrelevant to whether a reasonable period of time has passed,

but simply that those factors are not alone dispositive. 334

NLRB No. 62, at 5. Second, while it reaffirmed its view that

the degree of progress toward reaching a contract is a

relevant factor, the Board explained that "which way the

factor cuts depends on the context." Id. at 6. When "the

parties have almost reached agreement and there is a strong

probability that they will do so in the near future," the Board

said it will view this fact as evidence that a reasonable period

of time for bargaining has not yet elapsed. Id. In light of

the new six-month mandatory period, however, "if the parties

are still not close to reaching a contract after bargaining for 6

months or more (whether or not they have made progress),"

this factor will weigh in favor of a conclusion that a reason-

able period of time has passed. Id. at 7.

The Board then turned to the facts of this case. It first

noted that, because Lee Lumber did not bargain for six

months before refusing to bargain with the union in July

1990, the company would have breached the six-month rule

had it been applicable. Recognizing that application of the

new rule would be retroactive, however, the Board held that

even without the six-month rule, a reasonable period of time

had not elapsed under the multifactor analysis. Id. The

Board noted that the parties had met in only five negotiating

sessions over the course of little more than a month, and

concluded that this "brief time spent in bargaining, with few

bargaining sessions, weigh[ed] heavily against finding that a

reasonable time had elapsed." Id. at 8. It also found that

the "parties' apparent nearness to concluding a contract, plus

the fact that the parties were not at impasse--indeed, they

had scheduled another negotiating session for the day after

the July petition was presented--strongly demonstrate[d]

that additional progress in the near future was a real possibil-

ity." Id. Those factors, the Board held, outweighed the

countervailing factors: that the parties were not bargaining

for an initial agreement, and that the issues and processes

were not complex. Accordingly, the Board reaffirmed its

earlier conclusions that a reasonable period of time had not

elapsed, and that Lee Lumber therefore violated section

8(a)(5) by refusing to bargain, by withdrawing recognition,

and by unilaterally implementing changes in the terms and

conditions of employment of unit employees.

Finally, the Board reconsidered the question of remedy. It

declared that "[a]lthough normally we would issue a bargain-

ing order in a case such as this, given the court's observations

[in Lee Lumber I] and the unfortunate delays of the case here

at the Board, we recognize that such an order would likely be

unenforceable." 334 NLRB No. 62, at 8. Accordingly, the

Board limited the remedy "to ordering the Respondent to

cease and desist from further unlawful refusals to bargain."

Id. While it kept in place the provision of the original order

enjoining Lee Lumber from withdrawing recognition from the

union, the Board said that provision would remain in effect

only until, after complying with the other provisions of the

original order, the company "is presented with objective

evidence sufficient to warrant its challenging the Union's

majority status again." Id.

II

As it did in Lee Lumber I, the company raises numerous

challenges to the Board's decision. In Lee Lumber I, howev-

er, this court affirmed the Board "in all respects save for (1)

its application of its 'reasonable period of time' test to the

facts of this case, and (2) its issuance of an affirmative

bargaining order." 117 F.3d at 1462. Accordingly, many of

the company's current challenges, which simply reassert its

previous claims, must be dismissed under the law-of-the-case

doctrine. These include Lee Lumber's attacks on the Board's

presumption that an unlawful refusal to bargain with an

incumbent union taints the union's subsequent loss of majori-

ty support, and on its determination that employers must

bargain for "a reasonable period of time" to remove that

taint. Lee Lumber I expressly affirmed these Board hold-

ings. Id. at 1458-60. Also readily dismissed are Lee Lum-

ber's challenges to the Board's determination that the compa-

ny committed unfair labor practices by refusing to bargain in

April 1990 and by refusing to provide the union with request-

ed information, as well as its challenge to the Board's order

requiring the company to resume payments to the union

apprenticeship fund and to make the fund whole for past

delinquencies.2 All of those arguments were raised in the

company's briefs in Lee Lumber I,3 and were rejected by this

court.4

The " '[l]aw-of-the-case doctrine holds that decisions ren-

dered on the first appeal should not be revisited on later trips

to the appellate court.' " McKesson HBOC, Inc. v. Islamic

Republic of Iran, 271 F.3d 1101, 1106 (D.C. Cir. 2001) (quot-

ing Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739

(D.C. Cir. 1995)). Accordingly, the only issues left for our

decision are the two that we remanded for further consider-

ation in 1997. We consider each of those below.

__________

2 We note, however, that at oral argument Board counsel stated

that, at the compliance stage of the Board's proceedings, Lee

Lumber may contest the extent of its liability for payments to the

apprenticeship fund.

3 See Pet'r Br., Lee Lumber I, at 38, 39, 41, 47 (Feb. 21, 1997).

4 See Lee Lumber I, 117 F.3d at 1458 ("We reject all of the

remaining challenges that we do not discuss.").

A

The first issue that remains for review is the lawfulness of

the Board's determination that Lee Lumber did not bargain

for a reasonable period of time before cutting off negotiations

in July 1990. Our role in reviewing the Board's decision is

limited. The Supreme Court "has emphasized often that the

NLRB has the primary responsibility for developing and

applying national labor policy," and that courts therefore

must accord its legal rules "considerable deference." NLRB

v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 (1990).

We must "uphold a Board rule as long as it is rational and

consistent" with the NLRA, "even if we would have formulat-

ed a different rule had we sat on the Board," and "even if it

represents a departure from the Board's prior policy." Id.

We "review the Board's factual conclusions" only for "sub-

stantial evidence," and must "uphold the Board's application

of law to facts unless arbitrary or otherwise erroneous."

Harter Tomato Prods. Co. v. NLRB, 133 F.3d 934, 937 (D.C.

Cir. 1998).

As noted in Part I above, in response to our remand on the

reasonable time issue, the Board announced a new rule:

"[W]hen an employer has unlawfully refused to recognize or

bargain with an incumbent union, a reasonable period of time

for bargaining before the union's majority status can be

challenged will be no less than 6 months, but no more than 1

year." Second Supplemental Decision, 334 NLRB No. 62 at

1. Lee Lumber asks us to overturn the six-month rule,

contending that it operates as a de facto six-month bargaining

order and impermissibly interferes with employee free choice.

We need not, and indeed cannot, reach the merits of this

argument. We need not reach them because, at the same

time the Board announced the new six-month rule, it acknowl-

edged that it would be problematic to apply the rule retroac-

tively to Lee Lumber, and held that "even in the absence of "

the rule "we would find, under the multifactor analysis, ...

that a reasonable time had not elapsed." Id. at 7-8. Be-

cause, as we discuss below, that finding is reasonable on the

facts of this case, it is unnecessary for us to consider the

merits of the six-month rule.

Moreover, even if the Board had not relied on an indepen-

dent ground in finding Lee Lumber's refusal to bargain

unlawful, we could not reach the merits of the six-month rule

because we are without jurisdiction to do so. Under section

10(e) of the NLRA, "[n]o objection that has not been urged

before the Board ... shall be considered by the court, unless

the failure or neglect to urge such objection shall be excused

because of extraordinary circumstances." 29 U.S.C. s 160(e);

see Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,

665-66 (1982). Lee Lumber failed to object to the six-month

rule below, and there are no extraordinary circumstances that

excuse that failure. It is true, of course, that the company

could not have challenged the rule prior to the Second

Supplemental Decision, since the rule was announced for the

first time in that decision. But after the decision was issued,

Lee Lumber could have filed a motion for reconsideration,

thereby giving the Board an opportunity to consider its

arguments. The company's failure to seek Board reconsider-

ation bars our review under section 10(e). See Woelke, 456

U.S. at 666 ("Woelke could have objected to the Board's

decision in a petition for reconsideration or rehearing. The

failure to do so prevents consideration of the question by the

courts."); Cobb Mechanical Contractors, Inc. v. NLRB, 295

F.3d 1370, 1378 (D.C. Cir. 2002) ("Even if Cobb could not

have made [the] argument before issuance of the Board

decision, its failure to move to reconsider (or reopen the

record) bars it from raising the issue on appeal.").5

Lee Lumber's attack on the Board's finding under its

multifactor analysis, by contrast, is not barred by section

10(e). The relevance and applicability of the various factors

that compose that analysis were issues raised below and

directly addressed by the Board. But while we have jurisdic-

tion to consider the company's arguments, we reject them on

their merits. We conclude that the Board adequately an-

swered the concerns we raised in remanding the case, and

__________

5 See also International Ladies' Garment Workers' Union v.

Quality Mfg. Co., 420 U.S. 276, 281 n.3 (1975); Brockton Hosp. v.

NLRB, 294 F.3d 100, 106 (D.C. Cir. 2002).

hold that its finding that a reasonable period of time had not

passed was neither arbitrary nor unsupported by substantial

evidence.

In making that finding, the Board first noted that the

company had cut off bargaining after little more than a

month, and that during that month the parties had held only

five bargaining sessions. This "brief time spent in bargain-

ing, with few bargaining sessions, weigh[ed] heavily against

finding that a reasonable time had elapsed." Second Supple-

mental Decision, 334 NLRB No. 62, at 8. Acknowledging

that its comments on this subject in its first Supplemental

Decision may have been misleading, the Board explained that

the weight it placed on the passage of time and number of

meetings accurately reflected its precedents. Id. at 5 & n.37.

We cannot say that the Board's reading of those decisions is

unreasonable.6 Nor can we say that it is arbitrary for the

Board--in applying a test aimed at determining whether "a

reasonable period of time has elapsed"--to consider the actu-

al period of time that did elapse and the number of meetings

that took place during that time.

Also relevant to the Board's finding was the "parties'

apparent nearness to concluding a contract, plus the fact that

the parties were not at impasse--indeed, they had scheduled

another negotiating session for the day after the July petition

was presented." Id. at 8. These factors, the Board said,

"strongly demonstrate[d] that additional progress in the near

future was a real possibility" and that a reasonable period of

time had not yet passed. Id. Again, the Board cited numer-

ous precedents that were consistent with its explanation of

the role of the proximity-to-agreement factor, while recogniz-

ing that two others could be viewed as inconsistent; to the

extent that the two were inconsistent, the Board overruled

__________

6 See Driftwood Convalescent Hosp., 302 NLRB 586, 589 (1991);

Shangri-La Health Care Ctr., 288 NLRB 334, 334 n.2, 336 (1988);

Van Ben Indus., 285 NLRB 77, 79 (1987); W.B. Johnston Grain

Co., 154 NLRB 1115, 1116 (1965), enf'd, 365 F.2d 582 (10th Cir.

1966).

them.7 And again, the Board's reading of its own cases is not

unreasonable.8 Moreover, without commenting on the merits

of the Board's approach in general, at least in this case,

where so little time had passed and so few bargaining ses-

sions had taken place, we conclude that it was not arbitrary

for the Board to take into consideration the fact that the

employer withdrew recognition from the union just as an

agreement appeared to be in hand.

In announcing its decision, the NLRB explained that the

factors in its multifactor analysis "must be considered togeth-

er," and that "none is dispositive individually or necessarily

entitled to special weight." 334 NLRB No. 62, at 7. The

central question, the Board said, "is whether the union has

had enough time to prove its mettle in negotiations, so that

when its representative status is questioned, the employees

can make an informed choice, without the taint of the employ-

er's prior unlawful conduct." Id. This analytic approach is

neither facially unreasonable nor inconsistent with the

NLRA. As we said in Lee Lumber I, the Board's presump-

tion of taint "supports employee free choice because it pre-

vents an employer from 'pointing to an intervening loss of

__________

7 See Second Supplemental Decision, 334 NLRB No. 62, at 6 &

n.47 (citing NLRB cases); id. at 7 (overruling Brennan's Cadillac,

231 NLRB 225 (1977), and Tajon, Inc., 269 NLRB 327 (1984)).

8 See MGM Grand Hotel, 329 NLRB No. 50, at 4 (1999) (holding

a decertification petition untimely where the parties had made

substantial progress toward reaching agreement, had few remaining

issues to resolve, and finalized agreement only days after the

petition was filed); Ford Ctr. for the Performing Arts, 328 NLRB 1,

1-2 (1999) (finding a representation petition untimely where the

parties were on the verge of complete agreement when the petition

was filed); Top Job Bldg. Maint. Co., 304 NLRB 902, 908 (1991)

(holding that a reasonable time for bargaining had not elapsed

where the parties were in the midst of negotiations, had resolved

some questions, and had reasonable prospects of concluding an

agreement soon); N.J. MacDonald & Sons, Inc., 155 NLRB 67, 71

(1965) (finding a decertification petition untimely where very few

issues remained in dispute, the parties had reduced their agreement

to writing, and another bargaining session was scheduled).

employee support for the union when such loss of support is a

foreseeable consequence of the employer's unfair labor prac-

tice.' " 117 F.3d at 1459 (quoting Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27, 51 n.18 (1987)).

Moreover, since the Board's approach is fact-specific, we need

not consider hypotheticals about the logic of its application to

other situations. Because we have no warrant for disputing

the Board's expert judgment that, on the facts of this case,

the union did not have "enough time to prove its mettle," we

are bound to uphold the Board's determination.9

B

The second issue we must consider is the lawfulness of the

NLRB's order that Lee Lumber cease and desist from refus-

ing to bargain with the union. The company contends that

the cease and desist order, combined with the new rule that

an employer must bargain for at least six months to dissipate

the taint of an unlawful refusal to bargain, "is effectively a

per se bargaining order for six months in every case, irre-

spective of the facts." Pet'r Br. at 21. As Lee Lumber

understands the Board's order in this case, it must bargain

with the union for at least six months, during which time the

union is insulated from any challenge to its majority status.

Such a remedy, the company contends, contravenes Lee Lum-

ber I's instruction "to either vacate the order or explain why

__________

9 Lee Lumber further argues that even if it were reasonable to

apply the multifactor test prospectively, the Board should not have

applied it retroactively to this case. But application of the test to

this case "falls squarely within our precedents authorizing retroac-

tivity for agency rules that do not represent a shift from 'a clear

prior policy.' " Williams Natural Gas Co. v. FERC, 3 F.3d 1544,

1554 (1993). Although the Board "did modify existing law" some-

what, Board precedent "was neither clear nor consistent" at the

time the union filed its initial charges, District Lodge 64 v. NLRB,

949 F.2d 441, 448 (1991), and the Board's interpretation and recon-

ciliation of its precedents was reasonable. Accordingly, retroactive

application will not produce "substantial inequitable results." Id. at

448.

an affirmative bargaining order is necessary given the facts of

this case." 117 F.3d at 1462.

We need not decide whether an order like that described

by Lee Lumber would be permissible, as the company plainly

misunderstands the nature of the order that the NLRB has

issued. The Board did state that "normally we would issue a

bargaining order in a case such as this." Second Supplemen-

tal Decision, 334 NLRB No. 62, at 8. But it also noted this

court's critical observations in Lee Lumber I, as well as "the

unfortunate delays of the case here at the Board," and

concluded that "rather than engender more litigation and

further delay over the propriety of a bargaining order, we will

limit our remedy to ordering the Respondent to cease and

desist from further unlawful refusals to bargain." Id. Al-

though the Board "retain[ed] the provision of the [original]

Order enjoining the Respondent from withdrawing recogni-

tion from the Union," it made clear that the provision would

remain effective only until, after complying with "the other

provisions of the Order," the company is "presented with

objective evidence sufficient to warrant its challenging the

Union's majority status again." Id. (citing Levitz, 333 NLRB

No. 105 (2001)). Contrary to Lee Lumber's assumption that

it must continue to bargain for six months regardless of

whether the union loses the support of a majority of the

employees, the Board expressly recognized that its "cease

and desist remedy will not ensure that the Respondent will

recognize and bargain with the Union for a reasonable period

of time." Id. (emphasis added).

In its briefs and at oral argument, the Board confirmed this

reading of the remedial order. According to Board counsel,

the order bars Lee Lumber from challenging the union's

majority status only until the company posts the required

notice to employees and makes the required payments to the

apprenticeship fund--the "other provisions of the Order"

referred to in the portion of the Second Supplemental Deci-

sion quoted above. Thereafter, Lee Lumber may challenge

the union under the Board's generally applicable standards.10

__________

10 The Board has recently revised those standards. See Levitz,

333 NLRB No. 105 (2001).

In short, because the employer can challenge the union's

majority status when presented with sufficient objective evi-

dence, and "the employees can petition for decertification at

any time," Williams Enters. v. NLRB, 956 F.2d 1226, 1237-38

(D.C. Cir. 1992), the Board is correct that "this is the kind of

remedial order that has been endorsed, and distinguished

from affirmative bargaining orders, by the court of appeals,"

Second Supplemental Decision, 334 NLRB No. 62, at 8-9

(citing Williams Enters., 956 F.2d at 1237). We do so again

today.

III

For the foregoing reasons, we deny Lee Lumber's petition

for review and grant the Board's cross-application for en-

forcement.

Sentelle, Circuit Judge, concurring: While I join in the

careful and thorough opinion of the court, I write separately

to emphasize certain details in the strange history of this

case, and to offer a suggestion to the litigants herein. Lest it

remain buried in the details, it is the National Labor Rela-

tions Board and not Lee Lumber that has for twelve years

deprived the employees of their right to choose their own

bargaining representative or to choose none at all. Because

Lee Lumber twelve years ago allowed some employees to

take a petition for decertification for filing on company time,

and because Lee Lumber paid a few dollars of parking for

those employees, the National Labor Relations Board has

resorted to foot dragging, suspicious remands, and even the

entry of an unlawful bargaining order to prevent the employ-

ees of Lee Lumber from exercising their rights of labor

democracy under 29 U.S.C. s 157 (2000). See generally Lee

Lumber and Building Material Corp. v. NLRB, 117 F.3d

1454 (D.C. Cir. 1997). Because the Board's order requires

Lee Lumber to make a posting admitting its own violations,

while we have no authority to order it, I would suggest to the

parties that in fairness, Lee Lumber Company should also

post the opinions of this court so that the employees might

know that it was the unlawful acts of the Board and not those

of Lee Lumber that have deprived them of free choice for

these many years.