PRECISE CASTINGS, INC., PETITIONER V. NATIONAL LABOR RELATIONS
   BOARD

   No. 90-1143

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Seventh Circuit

   Brief For The National Labor Relations Board In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-8a) is reported
at 915 F.2d 1160.  The decision and order of the National Labor
Relations Board (Pet. App. 10a-21a) are reported at 294 N.L.R.B. No.
94.  The Board's decision and certification of election (Pet. App.
22a-24a) and the hearing officer's report (Pet. App. 25a-44a) in the
underlying representation proceeding are unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 9a) was entered on
October 17, 1990.  The petition for a writ of certiorari was filed on
January 15, 1991.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the National Labor Relations Board reasonably concluded
that it is permissible to use English-only ballots in a
Board-conducted election if foreign language notices translating the
ballot and explaining the election procedure are posted prior to the
election.

                               STATEMENT

   1. In May 1988, the Union /1/ filed a petition with the National
Labor Relations Board seeking certification as the exclusive
bargaining agent of a unit of production and maintenance employees at
petitioner's Franklin Park, Illinois, facility.  The unit covered
about 40 employees, approximately ten of whom speak and read Spanish
but cannot speak or read English.  Pet. App. 1a, 26a, 30a.  During
discussions about the details of the election, petitioner's attorney
asked the Board agent handling the case to provide both
Spanish-language election notices and Spanish-language ballots.  The
Board agent responded that the regional office would issue election
notices, on request, in any foreign language, but that it was this
region's policy to use only English-language ballots in elections.
Id. at 30a-31a.

   Petitioner received notices of the election in both English and
Spanish, and posted the notices in the employees' break area.  Pet.
App. 32a.  The notices set forth information about the employees'
rights and the election procedure.  The English-language notice
displayed a sample of the English-language ballot that would be used
in the election.  The Spanish-language notice displayed a Spanish
translation of the sample ballot.  Immediately above the sample ballot
on the Spanish-language notice was a sentence informing the voters
that the ballot handed them at the election would be identical except
that it would be in English.  Id. at 5a, 38a-39a, 42a.  A secret
ballot election was held on July 28, 1988.  The Union won by a vote of
18 to 13.  Id. at 1a, 22a-23a, 25a-26a, 28a-29a.

   2. Petitioner filed objections to the conduct of the election.
Petitioner contended, among other things, that the election should be
set aside because Spanish-language ballots had not been provided to
the ten voters who could not read English.  The Board's hearing
officer concluded, however, that there was no evidence that the notice
and balloting procedures used in the election were confusing to the
employees.  Pet. App. 41a-43a.

   The hearing officer rejected petitioner's contention that Board
rules required multilingual ballots whenever notices in more than one
language were used.  He concluded that where there are multilingual
notices, the Board has found it unnecessary to have multilingual
ballots as well.  Pet. App. 37a-39a, citing Thomas A. Nelson, 168
N.L.R.B. 802 (1967), and Marriott In-Flite Services, 171 N.L.R.B. 742,
743 n.4 (1968), enforcement denied, 417 F.2d 563 (5th Cir. 1969),
cert. denied, 397 U.S. 920 (1970).  He also noted that in some of the
Board cases where multilingual ballots had been used the use of such
ballots had been the subject of election objections, the losing party
alleging that the ballot contained translations in so many foreign
languages as to be confusing to voters.  Pet. App. 34a-39a.  The
hearing officer justified the use of an English-language ballot for
all voters on the ground that "the ballot remains as simple as
possible to all voters while still understandable (when combined with
Notices) to those voters who neither read nor write English." Id. at
38a-39a.

   The hearing officer also rejected petitioner's contention based on
a statement in the General Counsel's internal administrative manual
that, if a foreign language is used in a notice, that language must
also be used on the ballot.  Pet. App. 36a-37a.  He noted that the
foreword to the manual stated that the manual "is intended to provide
procedural and operational guidance for the Agency's staff in the
handling of representation cases," that "(i)t is not intended to be a
compendium of either substantive or procedural law," that "(t)he
guidelines included are not Board rulings or directives," that "it is
also expected that there may be departures (from the guidelines)
through exercise of professional judgment in varying circumstances,"
and that any guidelines contained therein "are not intended to be and
should not be viewed as binding procedural rules." Id. at 36a-37a
(emphasis omitted), quoting NLRB Casehandling Manual (Pt. 2),
Representation Proceedings, Introduction and Purpose.  /2/

   Petitioner filed exceptions to the hearing officer's report.
Thereafter, the Board adopted the hearing officer's findings and
recommendations, and certified the Union as the representative of the
bargaining unit.  Pet. App. 22a-24a.  After certification, petitioner
refused to bargain with the Union in the certified unit.  The Board
found that petitioner's refusal to bargain violated Section 8(a)(5)
and (1) of the National Labor Relations Act, 29 U.S.C. 158(a)(5) and
(1), and entered a bargaining order.  Pet. App. 15a.

   3. The court of appeals enforced the Board's order.  Pet. App. 8a.
Relying upon NLRB v. A.J. Tower Co., 329 U.S. 324 (1946), the court
noted that "the Board possesses discretion to set the rules for
conducting elections and to determine what procedures suffice to
protect employees' right to choose." Pet. App. 4a.  Applying that
principle, the court concluded that use of multilingual notices and
English-only ballots was a reasonable exercise of the Board's
discretion.

   The court observed that "most ballots in political elections are in
English" and that "(m)aking labor elections more like political
elections is among the Board's legitimate choices." Pet. App. 4a.
Moreover, "(t)he Board does not leave the workers to learn from the
election campaign alone." Id. at 5a.  The Board, upon request, will
provide elaborate foreign-language election notices, complete with
sample ballots and explanations, in all foreign languages spoken by
employees, that advise the employees that the actual ballot will be in
English.  Therefore, "(a)nyone who takes the trouble to read the
notice will be equipped to vote accurately." Ibid.

   The court rejected the argument that foreign-language notices were
insufficient because employees might not read them.  The court
concluded that it was within the Board's discretion to concentrate on
giving employees "a reasonable opportunity to vote intelligently,
without taking all possible steps to ensure that they do,"
particularly because the other options "have problems of their own."
Pet. App. 6a.  The court noted that printing ballots in different
languages for members of different language groups runs the risk of
allowing the parties to "link a vote to a given voter, breaching the
confidentiality of the polling place." Ibid.  And experience has shown
that putting "all of the languages on every ballot" works "less well
as the number of languages increases -- and as the ballot must include
languages that cannot be expressed in the Roman alphabet." Ibid.

   The court also found petitioner's reliance on Marriott In-Flite
Services v. NLRB, 417 F.2d 563 (5th Cir. 1969), cert. denied, 397 U.S.
920 (1970), to be misplaced.  Pet. App. 2a-3a.  Although the Marriott
court believed that the Board in that case had departed from its
policy of always using multilingual ballots, see 417 F.2d at 567, the
court below observed that any such Board policy no longer exists.
Pet. App. 2a.  The court below added that changes in the Board's
philosophy toward the regulation of representation elections have
"pulled the rug out from under" the Fifth Circuit's decision in
Marriott.  Pet. App. 3a (citing, e.g., Midland National Life Ins. Co.,
263 N.L.R.B. 127 (1982)).

   Finally, the court of appeals rejected petitioner's assertion that
it was improper for the Board to leave "to its regional directors the
choice among multilingual ballots, ballots in different languages, and
English-language ballots plus election notices in other languages."
Pet. App. 7a.  The court concluded that "(n)othing in the National
Labor Relations Act prevents the Board from giving its subordinates
discretion in matters of this kind." Id. at 7a-8a.  Moreover, the
court noted, the Board could reasonably decide that, by allowing its
regional offices to follow different paths, it could "learn" from
their experiences "about the need for or effects of its rules." Id. at
8a.  Indeed, the court added, allowing such differences permits the
Board to determine which of several competing options is preferable or
to decide that "the costs and benefits of the competing options are so
closely balanced that uniformity is unnecessary." Ibid.

                               ARGUMENT

   As this Court has explained, the control of a representation
election proceeding and the determination of the steps necessary to
conduct that election fairly are "matters which Congress entrusted to
the Board alone." NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226
(1940).  Thus, the Board has a "wide degree of discretion" in its
regulation of the conduct of representation elections, NLRB v. A. J.
Tower Co., 329 U.S. 324, 330 (1946), and any representation election
conducted under the specific safeguards provided by the Board's
procedures is presumed fair and regular unless proven otherwise.  See
NLRB v. Mattison Mach. Works, 365 U.S. 123, 123-124 (1961).  /3/ The
court of appeals correctly concluded that the Board properly exercised
its discretion here.  The court's decision does not conflict with any
decision of this Court or of any other court of appeals.  Accordingly,
review by this Court is not warranted.

   1. The Board has developed flexible procedures for accommodating
the election process to the needs of voters literate only in a foreign
language.  Under the Board's current policy, where (as here) the
parties give the Board's regional office timely notice that some
voters do not read English, the regional office will provide
foreign-language notices and sample ballots that are designed for
posting by the employer and that explain the balloting procedure and
the type of ballot to be used.  See 52 Fed. Reg. 7450 (1987)
(explanatory remarks).  The Board requires that foreign-language
notices provide a complete and reasonably accurate translation of all
the information provided to English-language employees on the
English-language notice of election.  Rattan Art Gallery, Ltd., 260
N.L.R.B. 255, 256-257 (1982);  Flo-Tronic Metal Mfg., Inc., 251
N.L.R.B. 1546 (1980);  Thermalloy Corp., 233 N.L.R.B. 428 (1977).  See
Tanforan Park Food Purveyors Council v. NLRB, 656 F.2d 1358 (9th Cir.
1981).  Consistent with that requirement, the Spanish-language notice
used in this case contained a translation of the official ballot and
all other portions of the notice of election.  /4/

   Many regional offices will also provide foreign-language ballots
like those petitioner requested here.  /5/ No Board rule or decision,
however, requires that foreign-language ballots be provided on demand.
 See NLRB v. Lowell Corrugated Container Corp., 431 F.2d 1196, 1197
(1st Cir. 1970).  To the contrary, the Board has expressly held that a
regional director who has posted foreign-language notices explaining
the election procedure has the discretion to use an English-only
ballot in the election.  Thomas A. Nelson, 168 N.L.R.B. at 803;
Marriott In-Flite Services, 171 N.L.R.B. at 743 n.4.  See also
Norwestern Products, Inc., 226 N.L.R.B. 653, 654 n.6 (1976) (noting
the Board's continued adherence to its Marriott decision).

   In refusing to mandate use of foreign-language ballots in all
cases, the Board has taken into account the competing considerations
of providing adequate information to non-English speakers, on the one
hand, and maintaining secrecy of the ballot and ballot clarity, on the
other.  It is one thing to prepare sample ballots in any foreign
language requested, and to make such samples a part of the relevant
foreign-language translation of the Board's official notice of
election.  It would be quite another matter, however, to use
foreign-language ballot in the election itself.  As the Board has
explained, the "secrecy of the ballot is, to a degree, violated
whenever a block of votes, by reason of language, can be identified
when counted." Marriott In-Flite Services, 171 N.L.R.B. at 743 n.1.
/6/

   The problem of ballot secrecy could be surmounted by constructing a
single multilingual ballot for use by all voters.  However, as the
Board noted (Pet. App. 34a-39a), constructing multilingual ballots
that are not confusing even to English-language voters has proven
difficult, especially where portions of the official ballot must be
handwritten.  See, e.g., Kraft, Inc., 273 N.L.R.B. at 1484 (setting
aside election because ballot printed in Spanish and English and
handwritten in Vietnamese and Laotian was confusing in format).

   Furthermore, a rule authorizing bilingual ballots only in seemingly
"easy" cases, where there is but one foreign-language group, but
withholding them in more complicated cases, also has its drawbacks.
Attempts to hold down the number of languages on a multilingual ballot
in the interest of readability would predictably raise concerns of
discrimination against smaller groups, who would naturally be the ones
excluded under any utilitarian calculus.  Kraft Inc., 273 N.L.R.B. at
1484-1485;  see also Bridgeport Fittings, Inc. v. NLRB, 897 F.2d 180,
188 (2d Cir. 1989).  /7/

   Moreover, as the court below noted (Pet. App. 4a), the Board's use
of English-language ballots is consistent with the general practice in
political elections.  Indeed, by assuring that each foreign-language
voter has access to an election notice and sample ballot in his own
language, the procedure followed here offers all language minorities a
level of assistance exceeding that frequently afforded them in
political elections.  /8/

   2. Petitioner contends (Pet. 10-15) that there is a conflict
warranting this Court's resolution between the decision below and
decisions from three other circuits:  Marriott In-Flite Services v.
NLRB, supra;  Bridgeport Fittings, Inc. v. NLRB, supra;  and Tanforan
Park Food Purveyors Council v. NLRB, 656 F.2d 1358 (9th Cir. 1981).
No such conflict exists.

   As the court below noted (Pet. App. 2a), the Fifth Circuit in
Marriott believed that the Board had unaccountably departed from a
policy of requiring bilingual ballots.  Such a policy, if it existed
then, does not exist now.  Moreover, in Marriott, unlike here, the
election notices posted near the polling place "contained no sample
ballot in Spanish." 417 F.2d at 567.  As a result, the
Spanish-language voters in that case were never officially advised in
their own language of the meaning of "the question and instructions on
the ballot." Ibid.  It was in this context that the Marriott court
pronounced the Board's failure to provide "access to ballots in a
language that (the foreign-language electorate) can understand" a
"defect" that warranted setting aside the election.  Ibid.  /9/

   In Bridgeport Fittings, the one Vietnamese and two Cambodian voters
about whom the court expressed concern had access to neither an
election notice with specimen ballot nor a ballot in a language they
could read and understand.  /10/ Moreover, because the court
ultimately enforced the Board order, finding that the number of
employees denied access to notices and ballots in their own language
was small and the union's margin of victory was large, the court's
statement about the ballot -- that the Board's failure to include a
version in Vietnamese and Cambodian gave "pause" -- is dictum.  877
F.2d at 187-188.  Finally, Tanforan Park involved the issue of the
sufficiency of a foreign language notice.  The court held that the
Board should hold a hearing to ascertain whether the election notice
was "garbled and confusing." 656 F.2d at 1362-1363 (Samoan translation
allegedly suggested endorsement of union).

   3. Petitioner asserts (Pet. 28 n.10) that the lack of uniformity of
procedure among the Board's Regional Offices is fundamentally
inconsistent with Congress's intention to have the Board establish a
uniform national labor policy.  There is no merit to that contention.
As shown, Congress also vested the Board with broad discretion to
establish rules for the conduct of representation elections.  The
court of appeals correctly decided that, in view of the substantial
drawbacks to the use of foreign-language ballots, the Board could
reasonably choose not to require uniformity but rather to allow
different regional approaches as a way of learning whether one was
preferable, or whether "the costs and benefits of the competing
options are so closely balanced that uniformity is unnecessary." Pet.
App. 8a.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JERRY M. HUNTER

      General Counsel

   D. RANDALL FRYE

      Acting Deputy General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   LAURENCE S. ZAKSON

      Attorney National Labor Relations Board

   MARCH 1991

   /1/ Local 18-B of the International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers, AFL-CIO,
Furniture Workers Division.

   /2/ In the September 1989 revision of the Casehandling Manual, the
relevant provision of the Manual was amended to make clear that the
use of a foreign language on the ballot is discretionary.  See NLRB
Casehandling Manual (Pt. 2), Representation Proceedings, Section 11314
(1989).

   /3/ There is no merit to petitioner's contention (Pet. 29 n.11, 30)
that because A.J. Tower Co. was decided before the 1947 amendments to
the Act -- and, specifically, before the addition to Section 7 of the
right to refrain from union and other protected, concerted activity --
its recognition of the Board's broad discretion with respect to
election matters is of dubious continuing validity.  This Court has
consistently confirmed that the Board's policies in representation
matters are due great deference.  See NLRB v. Financial Institution
Employees, Local 1182, 475 U.S. 192, 201-202 (1986);  NLRB v.
Wyman-Gordon Co., 394 U.S. 759, 767 (1969).  And contrary to
petitioner's implication, the Board's policy here has no different
impact on employees who may oppose the union than on those who support
it.

   /4/ Petitioner asserts (Pet. 32) that there is "insufficient
evidence in the record below that this election was conducted in such
a way as to insure that employees * * * were afforded a fair
opportunity to be apprised of the important choice (with which) they
were faced." However, the premise of this argument -- that the burden
is on the Board to show that the election was fairly conducted --
reverses the appropriate allocation of the burden of proof.  Thus, a
Board-conducted election is presumed to have been fair and regular,
and it is the objecting party that must show that, in fact, it was
not.  NLRB v. Mattison Mach. Works, supra.  As both the Board and the
court below found (Pet. App. 2a, 8a) -- and petitioner apparently
concedes (see Pet. 7-8, 14, 15 & n.4) -- there is no evidence that any
of the voters in this election were "confused" by the notice and
ballot procedures used.

   /5/ See, e.g., Bridgeport Fittings, Inc. v. NLRB, 877 F.2d 180, 187
(2d Cir. 1989) (ballot printed in English, Spanish, Portuguese, and
handwritten in Laotian);  Tanforan Park Food Purveyors Council v.
NLRB, 656 F.2d 1358 (9th Cir. 1981) (Samoan-English ballot);  Kraft,
Inc. Retail Food Group, 273 N.L.R.B. 1484 (1985) (ballot printed in
Spanish and English and handwritten in Vietnamese and Laotian);
Rattan Art Gallery, Ltd., 260 N.L.R.B. 255 (1982) (English-Ilocano
ballot).

   /6/ This concern is particularly important because, like the
instant election, Board-conducted elections typically involve fewer
than 50 employees.

   /7/ Petitioner's contention (Pet. 16-24) that the Board has failed
to articulate its rationale for its accommodation policy is without
merit.  As shown in the text, the Board, in a number of decisions, has
explained its reasons for accepting some and rejecting other
accommodation efforts.  Contrary to petitioner's suggestion (see Pet.
17, 20 n.7), the fact that the Board has explicitly addressed only
some of those reasons in its decisions here does not detract from the
fact that the Board has sufficiently articulated the basis of its
order to "meet() the criteria for judicial review." NLRB v.
Metropolitan Life Ins. Co., 380 U.S. 438, 443 & n.6.

   There also is no merit to petitioner's assertion (Pet. 18-20) that
the Board's decision here is inconsistent with some of the Board
decisions discussed above.  In Kraft, Inc., supra, the Board addressed
the issue of whether a confusing multilingual ballot was grounds for
setting aside an election once use of "a multilingual ballot (ha)s
(been) deemed appropriate." 273 N.L.R.B. at 1484.  It was in that
context -- in which a multilingual ballot was actually used -- that
the Board stated that a poor translation on, and a confusing layout
of, the ballot created a defect that could not be cured by accurate
election notices and the parties' campaigning.  Thus, the Kraft
decision fully supports the result here.  Rattan Gallery, Ltd., 260
N.L.R.B. 255 (1982), Flo-Tronic Metal Mfg., Inc., 251 N.L.R.B. 1546
(1980), and Thermalloy Corp., 233 N.L.R.B. 428 (1977), dealt not with
a refusal to provide a foreign-language ballot, but with defects in
foreign-language election notices.

   /8/ Petitioner attacks the court's finding that the procedure used
here is essentially consistent with that used in political elections,
suggesting (Pet. 31-32) that it is inconsistent with the Seventh
Circuit's decision in Puerto Rican Org. for Political Action v.
Kusper, 490 F.2d 575 (1973).  However, Kusper supports -- rather than
undercuts -- the use of the procedure chosen here.  In Kusper, the
court held only that under the Voting Rights Act of 1965, "a
Spanish-speaking Puerto Rican is entitled to assistance in the
language he can read or understand" (id. at 580).  The court also
approved the assistance ordered by the district court -- that is, use
of foreign-language notices and specimen ballots -- and suggested that
foreign-language ballots were unnecessary where foreign-language
specimen ballots have been provided in advance.  Id. at 576-577.

   /9/ Moreover, as the court below noted (Pet. App. 3a), the Marriott
court's belief that "minimum laboratory standards of fairness"
required foreign-language ballots was expressly linked to the Board's
then-current election standards, including the Board's rules holding
campaign representations to a higher standard than that allowed in the
political arena.  See 417 F.2d at 567 & n.4.  As the court below
further noted (Pet. App. 3a), the Board's current policies assume that
an informed employee electorate does not require extensive regulation
of the campaign process.  See Midland National Life Ins. Co., 263
N.L.R.B. 127 (1982).  While it is true, as petitioner asserts (Pet.
21-24), that the Board continues to set aside elections where
irregularities in the election process may have affected the outcome
of the election (see, e.g., Gory Associated Industries, Inc., 275
N.L.R.B. 1303 (1985);  Celotex Corp., 266 N.L.R.B. 802 (1983)), the
question here is whether the Board reasonably concluded that
foreign-language notices with sample ballots are adequate to assure an
informed electorate.

   /10/ See Bridgeport Fittings, Inc., Case 39-RD-67, Second
Supplemental Decision and Certification of Representative at 13-14
(May 17, 1985).