Opposition — Patterson v. National Labor Relations Board

Bey /

No. 80-993

-—_—

In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

GENE PATTERSON, ET AL., PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

WILLIAM A, LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Acting Associate General Counsel

NorTon J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant Generali Counsel

LINDA DREEBEN

Attorney

National Labor Relations Board

Washington, D.C. 20570

a a SIRO SON

In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

No. 80-993

GENE PATTERSON, ET AL., PETITIONERS

V.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

QUESTION PRESENTED

Whether the district court lacked jurisdiction to review

the Board’s dismissal of an employee petition to decertify

the incumbent union representative where the Board had

determined that there were outstanding unfair labor prac-

tice complaints against the employer that precluded the

holding of an election at that time.

TABLE OF CONTENTS

Page

Opinions Below «ow sc scvicccnsesceseantune ene l

JUTIGICNION 2.6. cccesedcestscsssetes nissan I

TARICMICRE cco scsvceveveccdesysbeeee ae pane I

ATBUMONA occ cucvededwesneeunt 034550 5ee 5

Conclusion ..cvccccsevccebenceee shane sheen 12

TABLE OF AUTHORITIES

Cases:

American Federation of Labor v. NLRB,

308 U.S. QBE os ccencacesvcanenedeneeaee 5,6

Bishop v. NLRB, 502 F. 2d 1024 ........... 10, 11

Boire v. Greyhound Corp., 376 U.S. 473 ...... 5,8

Brooks v. NLRB, 346 US. o vccuseccscscens 10

Brotherhood of Railway & Steamship

Clerks vy. Association for the

Benefit of Non-Contract Employees,

SOO US. GOW) ok cnc Since cacneeeeuke une 8

Califano v. Sanders, 430 U.S.99 ......c cece ene 8

Franks Bros. Co. v. NLRB,

S20 U.S. FA? os vakntueneeaeeasun see 9

Furr’s, Inc. v. NLRB, 350 F. 2d 84 .......... 9,10

J.P. Stevens & Co, 239 N.L.R.B. 738,

enforced, 623 F. 20 322 cc ncccscnuesessaswue 4

J.P. Stevens Emplovees Educational Committee

Vv. NERB, SOZ F. OO SSO ccc cco nsasnnwneane 11

Lawrence Typographical Union v. McCulloch,

Le ee i rr )

HI

PREVIOUS PAGE WAS BLANK |

IV

Page

Cases—(Continued):

Leedom v. Kyne, 358 U.S. 184 ............. Ore. o :

Madden v. Brotherhood, 147 F. 2d 439 ......... 6

May Department Stores Co. v. NLRB,

Eee 5k sé bh dee ce ekes ten nens 5

Modern Plastics Corp. v. McCulloch,

EEE EIS OE TT ETT eT 9

Beorven ¥. Gressetie, 452 U.S. 491°... cece ccceee 6

NLRB v. Bell Aerospace Co., 416 U.S. 267 ..... 10

NLRB vy. Big Three Industries, Inc.,

a a nied an a 0 464 6s 000 eae wR 10

NLRB v. Gissel Packing Co..,

eo esac wadeeceececvevae ed 9

NLRB vy. Wyman-Gordon Co., 394

ee hess oo pace W's be ewesee see 10

Panama Canal Co. v. Grace Line, Inc.,

EP sees 6

Physicians National House Staff Ass'n v.

Murphy, cert. denied, No. 80-933

is acne sab hed ee eee Kees 5

Raynal Plymouth Co., 175 N.L.R.B. 527 ..... 9-10

Schilling v. Rogers, 363 U.S. 666 ..........0006. 6

Surprenant Mfg. Co. v. Alpert, 318

ee Ris ba bvevecccenvenes 9,10

Surratt v. NLRB, 463 F. 2d 378 ...........0.-. 1]

a. 2

a let li

TERT! ae

Cases—(Co tinued):

Page

Switchmen’s Union of North America v.

National Mediation Board, 320

a ia ski ee eek eK eee

Templeton v. Dixie Color Printing Co.,

oe ae | ee rr rae

Statute and rules:

National Labor Relations Act, 29 U.S.C.

151 ef seq.:

Section 8(a)(1), 29 U.S.C. 158(a)(1)

Section 8(a)(5), 29 U.S.C. 158(a)(5)

Section 8(b)(1)(A), 29 U.S.C.

PN is bowie neee

Section 8(b)(1)(B), 29 U.S.C.

IS8(b)(I)(B) ... 0. e ee eee eee

Section 9(b)(1), 29 U.S.C. 159(b)(1)

Section 9(c), 29 U.S.C. 159(c) ....

Section 9(c)(1), 29 U.S.C. 159(c)(1) ....

Section 9(d), 29 U.S.C. 159(d) ....

Section 10(e), 29 U.S.C. 160(e) ...

Section 10(f), 29 U.S.C. 160(f) ....

Be PO Reece ae ieee Re eetnanes

Fed. R. Civ. P. :

WROER, beh wan acre tans

ff Beer rere rr Try Peer eee

Vi

Page

Miscellaneous:

Hearings on S. 1000, etc., Before the Senate

Comm. on Education and Labor, 76th Cong.,

oe ae SE): re re ee 6

H. R. Conf. Rep. No. 510, 80th Cong.,

ENE Oe, Se hk Le ek Ane oe eh codes tee ees 7

H. R. Rep. No. 245, 80th Cong.,

oe eg ey eer ey ee reerey Te Teer 6-7

H. R. Rep. No. 1147, 74th Cong.,

FO SE: CEE ak bn ban tR Ss RSENS A> OO OES 6

4 Legislative History of the Labor Management

Relations Act of 1947 (1948): wc ccc cece nenees 7

2 Legislative History of the National Labor

Relations Act of 1935 (1949)... ccc cece eee 6

National Labor Relations Board Casehandling

Manual (Part Two) Representation

POR CUTE 5 6.06 0600 eevee ec enp ances 3

S. Rep. No. 573, 74th Cong., Ist Sess.

CRS S) ssn chal ue hi heek saeas bw ei ete ea sane 6

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 34-38) is

noted at 626 F. 2d 862 (table). The memorandum opinion of

the district court (Pet. App. 39-42) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

August 4, 1980. On October 21, 1980, the Chief Justice

granted an extension of time in which to file a petition fora

writ of certiorari to and including December 17, 1980, and

the petition was filed on December 16, 1980. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

On August 28, 1974, the Board conducted a representa-

tion election among the production and maintenance

employees of J.P. Stevens & Co. (“the Company”), at its

seven plants in Roanoke Rapids, North Carolina. A major-

ity of the employees voted for the Union, ' and on Sep-

tember 6, 1974, the Board certified the Union as the exclu-

sive bargaining representative of the unit employees.

On March 7, July 30, and October 3, 1975, the Union

filed unfair labor practice charges with the Board’s Regional

Office, alleging in part that the Company had refused to

bargain with the Union by making unilateral changes in

wages and terms and conditions of employment (A. 21-23).

On June |, 1976, following investigation of these charges,

the General Counsel of the Board issued three complaints

charging the Company with violating the Act by negotiat-

ing with the Union in bad faith and with no intent to reach

'Textile Workers Union of America, subsequently succeeded by the

Amalgamated Clothing & Textile Workers Union, AFL-CIO, CLC.

*“*A.” refers to the appendix to the briefs in the court of appeals.

References to the record herein are taken from the Board’s brief in the

court of appeals.

eT YS Te

2

an agreement; unilaterally changing policies governing

wages and terms and conditions of employment; refusing to

furnish information requested by the Union for use in per-

forming the Union’s collective bargaining responsibilities;

threatening employees; and discharging an employee because

of her union activity (A. 24-31). The complaints were con-

solidated and a hearing was conducted before an Adminis-

trative Law Judge between December 1976and April 1977.

After the hearing commenced, the Union filed an additional

. charge, and the General Counsel issued another complaint

that was consolidated with the pending complaints (A.

32-36).3

On November 18, 1977, subsequent to the hearing on the

consolidated complaints, petitioners filed a petition with

the Regional Director seeking to decertify the Union on the

ground that a substantial number of unit employees no

longer wished the Union to be their representative (A. 18A).

On November 29, 1977, the Regional Director dismissed

the decertification petition because, as stated in a letter to

petitioners (A. 18G):

The investigation reveals that there is an unfair labor

practice charge pending before an Administrative Law

Judge alleging the Employer has violated Section

8(a)(5) of the Act by refusing to bargain in good faith

with its bargaining representative, therefore, no ques-

tion concerning representation can exist and thus, the

‘The Union filed additional unfair labor practice charges against the

Company on October 25, 1977, alleging further refusals to bargain by

the Company. The General Counsel! issued a complaint based on this

charge, as amended, on March 22, 1978 (A. 38-41).

3

petition is dismissed. This case is subject to reinstate-

ment, if appropriate, upon application by the Peti-

tioner, after disposition of the unfair labor practice

proceeding.[4]

Petitioners appealed the Regional Director’s decision to

the Board, which, on January 5, 1978, denied the appeal.®

On November 14, 1978, petitioners filed the present suit

in the United States District Court for the Eastern District

of North Carolina, seeking review of the Board’s ruling

dismissing the decertification petition and an order com-

pelling the Board to process the petition. The Board moved

‘The “blocking charge” policy, pursuant to which the Regional

Director acted, is set forth in the National Labor Relations Board

Casehandling Manual (Part Two) Representation Proceedings (1975),

which states in relevant part:

11730 Concurrent R and C Cases

The Agency has a general policy of holding in abeyance any

representation case (RM, RC, or RD) or union deauthorization

cases (UD) where pending unfair labor practice charges filed by a

party to the R or UD cases are based upon conduct of a nature

which would have a tendency to interfere with the free choice of

the employees in an election, were one to be conducted on the

petition (e.g., United States Coal & Coke Company, 3 NLRB 398,

399; Carson Pirie Scott & Company, 69 NLRB 935, 938-939:

Columbia Pictures Corporation, et al., 81 NLRB 1313, 1314; see

also Holt Bros., 146 NLRB 383, 384).

Where the pending charges allege violations of 8(a)(2), 8(a)(5).

8(b)(3), or 8(b)(7), such a policy also applies even where the person

filing the charges is not a party to the R or UD case, and the

petition may ultimately be dismissed, since the nature of the

alleged violations of those sections of the Act and the remedies

which could be provided therefor, might condition or preclude the

existence of the question concerning representation sought to be

raised by the petition (e.g.. Big Three Industries, Inc., 201 NLRB

Ld adil

‘On December 21, 1977, while the appeal was pending, the Adminis-

trative Law Judge issued a decision in the consolidated unfair labor

practice cases finding that, since October 31, 1974, the Company had

4

to dismiss under Fed. R. Civ. P. 12 on the grounds that the

district court did not have jurisdiction over the subject

matter of the suit and that the complaint failed to state a

claim upon which relief could be granted. Alternatively,

pursuant to Fed. R. Civ. P. 56, the Board moved for sum-

mary judgment. The district court dismissed the complaint

(Pet. App. 39-42), holding that a federal district court has

no subject-matter jurisdiction over a Board dismissal of a

decertification petition based upon outstanding unfair

labor practice complaints. The court found that the Board

“has not acted beyond its delegated powers; rather, it has

exercised discretion specifically entrusted to it * * *[and

has not] applied the blocking charge rule with a mechanistic

per se approach” (id. at 41).

The court of appeals, in a per curiam opinion (Pet. App.

34-38), affirmed the district court’s dismissal of the com-

plaint for lack of jurisdiction. The court stated (id. at 38)

that the

District Court accurately adjudged that [in dismissing

the petition because of the pending unfair labor prac-

tice charges] in this case, the Board neither exceeded

refused to bargain in good faith, in violation of Section 8(a)(5) and (1) of

the Act. The ALJ further found that the Company violated Section

8(a)(5) and (1) of the Act by making unilateral changes in terms and

conditions of employment and by refusing to furnish relevant informa-

tion requested by the Union. The ALJ issued a recommended order

requiring the Company to bargain with the Union in good faith and

deeming the Union's certification as commencing on the date the Com-

pany began bargaining in good faith.

The Board issued its Decision and Order affirming the ALJ’s find-

ings. conclusions, and order on December 12, 1978. J. P. Stevens & Co..

239 N.L.R.B. 738. The court of appeals enforced the Board’s order in

relevant part on June 11, 1980. J. P. Stevens & Co..v. NLRB, 623 F. 2d

322 (4th Cir. 1980).

5

its authority nor ignored any statutory exaction;

rather, its [action] * * * was an exercise of the discre-

tion delegated to the Board by Congress.

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with the decisions of this Court or the law in any

other circuit. Accordingly, further review is unwarranted.

1. Petitioners argue (Pet. 22-23) that the district courts

have jurisdiction to review Board representation decisions

that do not result in unfair labor practice proceedings

reviewable in the courts of appeals. This contention is with-

out merit.°

The National Labor Relations Act does not provide for

direct review of Board determinations in representation

proceedings, but permits review of such determinations

only to the extent authorized by Section 9(d) of the Act, 29

U.S.C. 159(d), i.e., when they form the basis for a final

order issued inan unfair labor practice proceeding and that

order is before the court of appeals for enforcement or

review under Section |0(e) or (f) of the Act, 29 U.S.C. 160(e)

or (f). See American Federation of Labor v. NLRB, 308

U.S. 401, 409 (1940); Boire v. Greyhound Corp., 376 U.S.

473, 476-477 (1964); May Department Stores Co.v. NLRB,

326 U.S. 376, 379 (1945). The rule that a representation

determination is not reviewable unless it “eventuates in a

finding by the Board that an unfair labor practice has been

committed * * *” (Boire v. Greyhound Corp., supra, 376

U.S. at 477) is more than a requirement that a party to a

representation proceeding exhaust its administrative reme-

dies before seeking judicial review. It reflects a policy

6On February 23, 1981, this Court denied certiorari in a case present-

ing a similar claim. Physicians National House Staff Ass'nv. Murphy.

No. 80-933.

6

choice by Congress to provide solely for administrative

resolution of representation questions that do not ulti-

mately result in an unfair labor practice proceeding.’

The legislative history of the Wagner Act of 1935 dis-

closes that Congress, after balancing the advantages of

permitting direct review of Board representation determi-

nations against the disadvantages—especially the likeli-

hood that direct review would result in dilatory tactics in

representation proceedings—deliberately decided to pre-

clude such review.’ In 1939, Congress was asked to recon-

sider the question of direct review of Board representation

determinations and declined to change the limited review

provisions of the Wagner Act.’

The problem was again considered by Congress in 1947

when it enacted the Taft-Hartley amendments to the Act.

Section 10(f) of the House bill, following the 1939 proposal,

provided for direct review by the courts of appeals of Board

certifications. H.R. Rep. No. 245, 80th Cong., Ist Sess. 43,

’There is no doubt that Congress has the power to prescribe an

administrative remedy to the exclusion of a judicial one. See Switch-

men’s Union of North America v. National Mediation Board, 320 U.S.

297, 301 (1943) (“All constitutional questions aside, it is for Congress to

determine how the rights which it creates shall be enforced”). See also

Morris v. Gressette, 432 U.S. 491, 501 (1977); Schilling v. Rogers, 363

U.S. 666, 674 (1960); Panama Canal Co. v. Grace Line, Inc., 356 U.S.

309, 318-319 (1958).

*See S. Rep. No. 573, 74th Cong., Ist Sess. 5-6 (1935), reproduced in 2

Legislative History of the National Labor Relations Act of 1935, at

2305 (1949) (hereinafter referred to as “ 2 Leg. Hist.”). See also H.R.

Rep. No. 1147, 74th Cong., Ist Sess. 7 (1935); 2 Leg. Hist., supra, at

3053. See generally 7Leedom v. Kyvne, 358 U.S. 184, 191-197 (1958)

(Brennan, J., dissenting).

See Hearings on S. 1000, etc., Before the Senate Comm. on Educa-

tion and Labor, 76th Cong., Ist Sess., Pt. 1, 460-463, 584-585 (1939);

American Federation of Labor v. NLRB, supra, 308 U.S. at 409-411;

Madden v. Brotherhood, 147 F. 2d 439, 443-445 (4th Cir. 1945).

7

59-60 (1947), | Legislative History of the Labor Manage-

ment Relations Act of 1947, at 334, 350-351 (1948) (here-

inafter referred to as “/ Leg. Hist.”). The House Report

accompanying the bill explained that such an amendment

was desirable because, inter alia, the Act as then structured

was unfair to “the union that loses, which has no appeal at

all no matter how wrong the certification may be.” H.R.

Rep. No. 245, supra, at 43, 1 Leg. Hist., supra, at 334. In

conference, this provision was eliminated, and Congress

decided to retain the limited review provided in Section 9(d)

of the original Act. H.R. Conf. Rep. No. 510, 80th Cong.,

Ist Sess. 56-57 (1947))1 Leg. Hist., supra, at 560-561.

2. There is also no merit in petitioners’ additional con-

tention (Pet. 19-20) that the jurisdiction of the district court

in this case can be sustained under Leedom v. Kyne, 358

U.S. 184 (1958).

a. In Leedom v. Kyne, this Court carved out a limited

exception to the general rule of nonreviewability of repres-

entation proceedings. There, jurisdiction of the district

court was found to exist where the Board directed an elec-

tion inan admittedly mixed bargaining unit of professional

and non-professional employees without first having “a

majority of such professional employees vote for inclusion

in such unit” as expressly required by Section 9(b)(1) of the

Act, 29 U.S.C. 159(b)(1). This Court explained that the

district court had jurisdiction because the Board had acted

in violation of a “clear and mandatory” provision of the

statute, thereby depriving the professional employees of a

right guaranteed them by the Act for which there was no

other remedy. 358 U.S. at 190-191.

The Court has made clear that district court jurisdiction

is narrowly confined to the situation where the Board acts in

violation of a specific mandate of the Act and does not

8

extend to an action seeking review of discretionary deter-

minations. Thus, as the Court emphasized in Boire v. Grev-

hound Corp., supra, 376 U.S. at 481:

The Kyne exception is a narrow one, not to be

extended to permit plenary district court review of

Board orders in certification proceedings whenever it

08 $4 said that an erroneous assessment of the particu-

lar facts before the Board has led it to a conclusion

which does not comport with the law. Judicial review

in such a situation has been limited by Congress to the

courts of appeals, and then only under the conditions

explicitly laid down in § 9(d) of the Act.

See also Brotherhood of Railway & Steamship Clerks v.

Association for the Benefit of Non-Contract Employees,

380 U.S. 650, 659-660 (1965). !°

b. The Board did not violate a clear statutory mandate or

otherwise exceed its statutory authority in dismissing the

petition here pursuant to its “blocking charge” policy (see

page 3 note 4, supra). Under Section 9(c) of the Act,!!

Petitioners incorrectly rely (Pet. 28) on Califano v. Sanders, 430

U.S. 99 (1977), to support their contention that the district court had

jurisdiction under 28 U.S.C. 1331. In that case, this Court recognized

that the grant of jurisdiction to federal courts to review agency action

under Section 1331 is “subject * * * to preclusion-of-review statutes

created * * * by Congress” (430 U.S. at 105). As shown above. the

manifest intent of Congress, from the time of enactment of the Wagner

Act to the present, has been to preclude judicial review of Board

representation determinations unless they form the basis of a final order

issued in an unfair labor practice proceeding, which is reviewable in the

courts of appeals under Section 10(e) and (f) of the Act; thus, the Act

precludes district court jurisdiction under Section 1331.

Section 9(c)(1) provides in pertinent part (emphasis added):

Whenever a petition shall have been filed * * * the Board shall

investigate such petition and if it has reasonable cause to believe

that a-question of representation affecting commerce exists shall

provide for an appropriate hearing upon due notice. * * * If the

9

29 U.S.C. 159(c), the Board, upon the filing of a decertifica-

tion petition, is authorized to determine whether a question

of representation exists, and, if it so finds, it is directed to

hold an election. See Lawrence Typographical Union v.

McCulloch, 349 F. 2d 704, 707 (D.C. Cir. 1965); Surprenant

Mfg. Co. v. Alpert, 318 F. 2d 396, 399 (Ist Cir. 1963);

Furr’s, Inc. v. NLRB, 350 F. 2d 84, 85-86 (10th Cir. 1965).

Whether a question conerning representation exists “is

essentially a factual issue” (Modern Plastics Corp. v.

McCulloch, 400 F. 2d 14, 19 (6th Cir. 1968)) and, in deter-

mining that issue, the Board has discretion to establish

appropriate criteria. Lawrence Typographical Union v.

McCulloch, supra, 349 F. 2d at 707.

The Board’s general policy of not proceeding to an elec-

tion in the face of outstanding unfair labor practice charges

is a reasonable exercise of the Board’s discretion to deter-

mine whether a representation question is presented that

can properly be resolved under the Board’s election machin-

ery. The commission of serious unfair labor practices,

including an employer’s refusal to bargain, can undermine

the union’s representati 2 status and render impossible an

election reflective of the employees’ true and undistorted

preferences. See NLRB v. Gissel Packing Co., 395 U.S. 575

(1969); Franks Bros. Co. v. NLRB, 321 U.S. 702, 704

(1944). Moreover, the usual remedy for a refusal-to-bargain

violation is to require the employer to bargain in good faith

notwithstanding that the union may have lost its majority

status. Franks Bros. Co. v. NLRB, supra, 321 U.S. at

704-705. And, in certain circumstances, an employer’s ref-

usal to bargain may warrant extending the union’s “certifi-

cation year”—the period during which the Board will refuse

to conduct an election—for up to a year after good-faith

Board finds upon the record of such hearing that such a question

of representation exists, it shall direct an election by secret ballot

and shall certify the results thereof.

10

bargaining commences. See Raynal Plymouth Co., 175

N.L.R.B. 527 (1969). See generally Brooks v. NLRB, 348

U.S. 96 (1954). In light of these considerations, the courts of

appeals have upheld the Board’s “blocking charge” policy.

See Bishop v. NLRB, 502 F. 2d 1024, 1029 (Sth Cir. 1974);

NLRB vy. Big Three Industries, Inc., 497 F. 2d 43, 51 (Sth

Cir. 1974); Furr’s, Inc. v. NLRB, supra, 350 F. 2d at 85-86;

Surprenant Mfg. Co. v. Alpert, supra, 318 F. 2d at 397

(citing cases). !?

Petitioners’ reliance (Pet. 17, 20, 21) on Templeton v.

Dixie.Color Printing Co., 444 F. 2d 1064 (Sth Cir. 1971), is

misplaced.!3 Subsequent decisions of the Fifth Circuit have

confined. Templeton to its exceptional facts. See Bishop v.

NLRB, supra, 502 F. 2d at 1032; NLRB v. Big Three Indus-

tries, Inc., supra, 497 F. 2d at 53-54. Thus, in Bishop, the

Fifth Circuit held that a complaint seeking to compel the

Board to process a decertification petition was not within

the district court’s jurisdiction because, in dismissing the

employee decertification petition after the Board’s “General

Counsel ha[d] found enough substance to the allegations to

form the basis of a complaint,” the Board was “well within

'?There is no merit to petitioners’ contention (Pet. 14) that the policy

is subject to attack because the Board did not utilize the formal rule-

making authority of the Administrative Procedure Act. In formulating

agency policy, the Board may proceed by adjudicatioii or rulemaking,

and the choice of method lie within the discretion of the Roard. See

NLRB vy. Bell Aerospace Co., 416 U.S. 267, 293 (1974 "RB

v. Wyman-Gordon Co., 394 U.S. 759 (1969).

In Templeton, the Fifth Circuit found that the Board had meci.

cally invoked its “blocking charge” rule and thereby violated the express

command of Section 9(c)(1) of the Act, which provides that the Board

“shall investigate” all decertification petitions. However, the only

alleged unfair labor practice concerning a refusal to bargain in that case

had occurred several years before the case reached the court of appeals

and a period of actual colleetive bargaining had transpired. The only

matters still in issue concerned the reinstatement of some striking

employees, an issue that did not go to the heart of the bargaining

relationship. The court further noted that the union was not pursuing its

bargaining rights. 444 F. 2d at 1066-1067.

the boundaries of its statutory mandate” (502 F. 2d at 1032).

In so holding, the Fifth Circuit emphasized that Templeton

involved unusual circumstances and represented “a very

limited exception to the general rule of review of representa-

tion questions” (ibid.).'4 Here, as in Bishop, the decertifica-

tion petition was dismissed after the General Counsel had

issued unfair labor practice complaints, and, indeed, after

the Administrative Law Judge had issued a decision sus-

taining the allegations of the complaints. !5

'4 Bishop also limited to its facts the decision in Surrattv. NLRB, 463

F, 2d 378 (Sth Cir. 1972). In Surratt, the Fifth Circuit held that district

court jurisdiction existed where the Board applied the “blocking

charge” policy even though good-faith bargaining had apparently taken

place during most of the union’s certification year and the union had

filed its unfair labor practice charges only after the decertification

petition was filed. 463 F. 2d at 380. Furthermore, by the time the matter

reached the court, a Board hearing had been held on the blocking unfair

labor practice complaints and the NLRB Administrative Law Judge

had recommended dismissal of all the charges. /hid.

'SPetitioners’ contention (Pet. 15) that the Board should have given

greater emphasis to their claim that the “union conduct, and not man-

agement misconduct, caused the [decertification] petition” overlooks

that the Regional Director had previously investigated and refused to

issue complaints on charges filed by petitioners alleging that the Union

violated Section 8(b)(1)(A) and (B) of the Act by instituting a boycott of

Company products. See J. P. Stevens Emplovees Educational Commit-

tee Vv. NLRB, 582 F. 2d 326, 328 (4th Cir. 1978).

12

—

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCCREE, JR.

Solicitor General

WILLIAM A. LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E, ALLEN

Acting Associate General Counsel

NorRTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

LINDA DREEBEN

Attorney

National Labor Relations Board

MARCH 1981

DO J-1981-03