INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS, ETC., PETITIONER V. ITT LIGHTING FIXTURES, INC.,
ETC., ET AL.

   No. 83-1187

   In the Supreme Court of the United States

   October Term, 1983

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

   Memorandum for the National Labor Relations Board

   1. Petitioner was chosen as bargaining representative by a majority
of employees at respondent ITT Lighting Fixtures, Inc.'s facilities in
Southaven, Mississippi, and Memphis, Tennessee, in an election
conducted under the auspices of the National Labor Relations Board on
February 16, 1979.  ITT objected to the election results on the ground
that the pro-union activity of certain "group leaders" impermissibly
interfered with the employees' free choice.  The Board rejected that
challenge, finding that the group leaders, although supervisors within
the meaning of the National Labor Relations Act, had no substantial
authority to affect the employment status of other employees and
therefore that their activities on behalf of petitioner did not impair
the employees' freedom of choice in the election.  Pet. App. 32a-34a.
/1/

   Petitioner was certified as bargaining representative on May 9,
1980 (Pet. App. 63a-68a).  ITT thereafter refused to bargain, and,
upon charges filed by petitioner, the Board found that the company had
violated Section 8(a)(5) and (1) of the National Labor Relations Act,
29 U.S.C. 158(a)(5) and (1), by its refusal to bargain (Pet. App.
51a-62a).  The Board ordered ITT to recognize and bargain with
petitioner.

   2. The court of appeals refused to enforce the Board's order (Pet.
App. 10a-30a).  The court found that the Board's Regional Director,
whose decision the Board had adopted in the underlying representation
proceeding, had failed to make sufficient findings with respect to the
precise supervisory authority of the group leaders and had failed to
articulate sufficiently the reasoning underlying the conclusion that
their pro-union activities did not impair the employees' free choice
(id. at 22a-30a).  The court remanded the case for further findings by
the Board.

   3. On remand, the Board reaffirmed its earlier decision (Pet. App.
31a-50a).  It examined the supervisory authority of those group
leaders who engaged in activity on behalf of petitioner /2/ and found
that they had no independent authority to hire, fire, promote, lay
off, reward, discipline, or issue formal warnings to employees.
Thirteen of them had the independent authority to assign and direct
work;  seven had the authority to allow employees to leave work early
and to approve overtime;  and four could adjust grievances.  Id. at
32a-33a, 48a.  The Board concluded on the basis of these findings that
the "type of day-to-day supervisory authority possessed by these group
leaders simply * * * does not warrant a finding that the retaliatory
potential of the group leaders was sufficient to make their
involvement in the union campaign coercive to employees" (id. at 49a).
 Further, the Board noted that no supervisor engaged in threats or any
other acts "to make any employee fear possible retribution at a group
leader's hands for failing to support the Union" (ibid. (footnote
omitted)).  Accordingly, the Board reaffirmed its earlier holding that
the activities of the group leaders did not warrant setting aside the
election and again ordered the company to bargain.

   4. The court of appeals again refused to enforce the Board's order
(Pet. App. 1a-9a).  The court held that the Board erred by failing to
consider, in addition to the power to retaliate, the power of the
group leaders to reward employees by giving one employee an advantage
over another.  /3/ The court independently examined the authority of
the group leaders and concluded that five of them had the power
effectively to recommend favorable or adverse action, and therefore
that employees "could possibly have been influenced by the pro-union
activity" of the five group leaders (id. at 9a).  The court vacated
the Board's order and set aside the election.

   5. While the Board believes that the court of appeals erred in
rejecting its finding that the supervisors possessed insufficient
authority over the employment status of other employees to make their
pro-union involvement coercive, and in setting aside the election, the
Board did not file its own petition for certiorari because in its view
the disagreement between the Board and the court turns largely on the
particular facts of this case.  Such a fact-bound issue is not one
that this Court ordinarily would review.  See Universal Camera Corp.
v. NLRB, 340 U.S. 474, 490-491 (1951).

   Petitioner seeks review on the ground that the court of appeals'
decision is in conflict with decisions of other circuits over the
proper legal standard to be applied in evaluating pro-union activities
of supervisors.  Petitioner contends (Pet. 6-11) that the Second
Circuit holds supervisory pro-union conduct to a higher standard than
do other courts of appeals and that it would set aside an election
whenever the activities of supervisors could possibly have influenced
employee free choice, whereas other courts of appeals would not set
aside an election unless the pro-union activity contains express or
implied threats of retaliation or promises of benefits.  We submit
that there is no such conflict.

   In evaluating the effect of pro-union conduct by supervisors, the
Board and the courts both generally examine all the circumstances,
with particular emphasis on (1) the nature of the supervisor's
authority and (2) the nature and extent of the pro-union activities.
See Delchamps, Inc., 210 N.L.R.B. 179, 180 (1974);  Flint Motor Inn
Co., d/b/a Sheraton Motor Inn, 194 N.L.R.B. 733, 734 (1971).  It is
generally true, as petitioner suggests, that pro-union conduct by
low-level supervisors who lack significant authority to affect
employees' working conditions or employment status will not invalidate
an election unless the supervisors threaten employees, or promise them
future benefits, in an effort to persuade them to support the union.
Compare NLRB v. Northeastern University, 707 F.2d 15, 18 (1st Cir.
1983) (nonthreatening pro-union conduct by low-level supervisors not
sufficient to invalidate election) with NLRB v. Howard Johnson Motor
Lodge, 705 F.2d 932, 934-935 (7th Cir. 1983) (threats by low-level
supervisors were coercive of employees' right to choose freely) and
Marconi, Inc., 251 N.L.R.B. 46 (1980) (threats by pro-union supervisor
warranted setting aside the election).  However, the Board has never
required the presence of threats or promises of benefit in order to
find that supervisory pro-union conduct has impaired employees' free
choice and therefore warrants setting aside an election.  Where there
are pervasive pro-union activities by supervisors who possess
significant authority to affect working conditions or employment
status, the Board will find such conduct to be coercive of the
employees' right to choose a representative, notwithstanding the
absence of threats or promises of benefit, if, under the
circumstances, employees could reasonably fear or expect some future
retaliation or grant of benefit by a pro-union supervisor.  See, e.g.,
Delchamps, Inc., supra;  Flint Motor Inn Co., supra;  see also Glomac
Plastics, Inc., 194 N.L.R.B. 406, 409-410 (1971).

   The cases cited by petitioner (Pet. 7-11) are not to the contrary.
The courts in those cases accepted the general principle applied by
the Second Circuit here -- "an election is not per se invalid merely
because there was some pro-union activity on the part of a supervisor.
 Rather, there must be a showing that the supervisor's conduct
reasonably tended to have such a coercive effect on the employees that
it was likely to impair their freedoms of choice in the election"
(Pet. App. 15a-16a).  See, e.g., Fall River Savings Bank v. NLRB, 649
F.2d 50, 56 (1st Cir. 1981);  NLRB v. Manufacturers' Packaging Co.,
645 F.2d 223, 225-226 (4th Cir. 1981).  /4/ Although the courts in
these cases, in sustaining the Board's conclusion that the supervisory
conduct at issue was not likely to have a coercive effect, emphasized
that the conduct did not involve threats or promises, the courts did
not hold that those were the only factors that were relevant to a
determination of that question.  On the contrary, the courts
considered all the circumstances, including the level of supervisory
authority, to determine whether the supervisor's activity created the
potential for future reprisal that would reasonably be likely to
preclude employees from exercising a free choice in the election.
See, e.g., Fall River Savings Bank v. NLRB, 649 F.2d at 57;  NLRB v.
San Antonio Portland Cement Co., 611 F.2d 1148, 1152 n.2 (5th Cir.
1980).  Moreover, nearly all the cases cited by petitioner involved
the isolated activities of only one or several supervisors, as opposed
to the large number of pro-union supervisors involved here.  See,
e.g., NLRB v. Northeastern University, 707 F.2d at 18;  NLRB v. St.
Mary's Home, Inc., 690 F.2d 1062, 1069 (4th Cir. 1982);  NLRB v. San
Antonio Portland Cement Co., 611 F.2d at 1151.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   WILLIAM A. LUBBERS

      General Counsel National Labor Relations Board

   MARCH 1984

   /1/ The parties stipulated that a number of group leaders engaged
in one or more of the following activities:  attended union meetings
and encouraged other employees to attend;  solicited authorization
cards and signed cards themselves;  wore pro-union T-shirts;  spoke
out and campaigned for the union;  met with the union's international
representative;  and had dinner with a union representative (Pet. App.
17a-19a).

   /2/ The Board determined that 15 of 31 group leaders had engaged in
some form of pro-union activity (Pet. App. 36a).

   /3/ In fact, the Board did find that the group leaders lacked the
authority to "reward" employees (Pet. App. 33a).

   /4/ Petitioner suggests (Pet. 8) that the First Circuit expressly
noted a conflict with the Second Circuit in NLRB v. Northeastern
University, 707 F.2d at 18.  Earlier in its opinion, however, the
Northeastern court cited the court's decision in this case with
approval for the proposition that an election will be invalid if a
"'supervisor's conduct reasonably tended to have such a coercive
effect on the employees that it was likely to impair their freedoms of
choice.'" 707 F.2d at 17.  To the extent the Northeastern court
contrasted the court's decision in this case with its own, the
comparison merely questions the result reached on the particular facts
and does not reflect a different legal standard.