MAURICE WILSON, PETITIONER V. NATIONAL LABOR RELATIONS BOARD

   No. 90-1362

   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 Sixth Circuit

   Brief For The National Labor Relations Board In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-12a) is reported
at 920 F.2d 1282.  The opinion of the National Labor Relations Board
(Pet. App. 13a-21a) is reported at 293 N.L.R.B. No. 62.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 4,
1990.  The petition for a writ of certiorari was filed on February 28,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   Section 19 of the National Labor Relations Act, 29 U.S.C. 169,
provides that "(a)ny employee who is a member of and adheres to
established and traditional tenets or teachings of a bona fide
religion, body, or sect which has historically held conscientious
objections to joining or financially supporting labor organizations
shall not be required to join or financially support any labor
organization as a condition of employment," but "may be required * * *
in lieu of periodic dues and initiation fees, to pay sums equal to
such dues and initiation fees to a nonreligious, nonlabor organization
charitable fund."

   The questions presented are:

   1. Whether the National Labor Relations Board correctly concluded
that Section 19 cannot properly be interpreted to apply to an employee
whose religious objection to joining or supporting unions is based on
a personal, sincerely held religious belief, rather than on membership
in and adherence to the established tenets of a "bona fide religion,
body, or sect."

   2. Whether Section 19, if so construed, violates the Establishment
Clause of the First Amendment.

   3. Whether, if Section 19 were found to be unconstitutional, the
provision should be nullified, rather than extended to all employees
having a religious objection to joining or supporting unions.

                               STATEMENT

   1. Grand Rapids City Coach Lines, Inc. (the Company) and Local 836,
Amalgamated Transit Union (the Union) were parties to a
collective-bargaining agreement that required employees to become
"members of the Union" by tendering dues and initiation fees.  Pet.
App. 17a.  The Union asked petitioner, a Company employee, to sign a
card authorizing the Company to deduct union dues and initiation fees
from his wages and forward the money to the Union.  Petitioner refused
to sign the authorization card, citing his personal religious belief
against joining a union or paying its dues.  Id. at 17a-20a.

   The Union made a request to the Company to discharge petitioner for
his failure to pay union dues and initiation fees.  Pet. App. 17a-18a.
 The Company refused to do so, and filed an unfair labor practice
charge against the Union.  Id. at 18a.  The National Labor Relations
Board's General Counsel issued a complaint, alleging that petitioner's
refusal to pay union dues and fees was protected by Section 19 of the
Act, 29 U.S.C. 169, and that the Union had violated Section 8(b)(2) of
the Act, 29 U.S.C. 158(b)(2), by requesting petitioner's discharge.
Pet. App. 16a-18a.  /1/

   2. The Board, affirming the decision of an administrative law
judge, dismissed the unfair labor practice complaint.  It concluded
that petitioner was not within the scope of Section 19 because he had
not shown that he was a member of a bona fide religion, body or sect
which historically held conscientious objections to joining or
supporting labor organizations, as required by the express language of
Section 19.  Pet. App. 13a-14a, 18a, 20a-21a.  In concurrence,
Chairman Stephens observed that the Board did not need to address "any
possible constitutional problems." Id. at 14a n.1.  He noted that,
"(w)hile the Board is obligated to construe legislation in a manner
that will avoid constitutional questions," the Board was not "free to
adopt constructions that are not "fairly possible.'" Ibid. (quoting
Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147, 157 (1983) and
Crowell v. Benson, 285 U.S. 22, 62 (1932)).

   3. Petitioner sought review of the Board's order dismissing the
unfair labor practice complaint.  He contended that Section 19, as
construed by the Board, violated the Religion Clauses of the First
Amendment, and that the Board erred in failing to adopt a broader
construction that would have read the "membership" requirement out of
Section 19 and thus cured any constitutional defect.  Pet. App. 3a-4a.

   The court of appeals agreed with the Board that petitioner "does
not qualify for the religious objectors' exemption under a literal
reading of section 19." Pet. App. 4a.  The court also agreed that it
was not "fairly possible" to construe Section 19 to eliminate the
"membership" requirement and thereby make it applicable to all
employees with religious objections to joining or supporting unions,
regardless of whether the employees are members of a religion, body or
sect which has historically held conscientious objections.  Id. at
10a.  /2/ The court concluded, however, that Section 19, as so
construed, violates the Establishment Clause.  Pet. App. 6a-9a, 12a.

   The court first stated that Larson v. Valente, 456 U.S. 228 (1982),
"indicates that laws discriminating among religions are subject to
strict scrutiny, and that laws 'affording a uniform benefit to all
religions' should be analyzed under Lemon (v. Kurtzman, 403 U.S. 602
(1971))." Pet. App. 6a (quoting Corporation of Presiding Biship v.
Amos, 483 U.S. 327, 339 (1987)).  The court found that, like the
statute in Larson, Section 19 "facially discriminates among religions"
and "creates a denominational preference by conferring a benefit on
members of the religious organizations described in the statute."
Ibid.  Accordingly, Section 19 "is subject to strict scrutiny and it
'must be invalidated unless it is justified by a compelling
governmental interest'";  moreover, it "must be 'closely fitted' to
further the compelling governmental interest." Ibid. (quoting Larson,
456 U.S. at 247, 251).  The court concluded that, while the Board had
offered "an explanation for the distinction" (i.e., Congress drafted
Section 19 narrowly in order to direct difficult inquiries concerning
the religious nature of an objector's belief into a forum better
equipped to deal with such issues, the federal courts), it did not
"identify a compelling governmental interest served by the statute."
Pet. App. 7a.  Moreover, even if it were found that Section 19 served
the "compelling governmental interest of protecting religious freedom
in the workplace," it "could be more closely fitted to further this
interest by paralleling the protection afforded by Title VII, which is
without regard to membership in a particular religious organization."
Ibid.

   The court added that, although "application of the Lemon test is
unnecessary to resolve the present case," Section 19 "would also fail
to pass constitutional muster under that test." Pet. App. 7a.  In the
court's view, Section 19 "has a legitimate secular purpose of
eliminating discrimination in employment practices" (ibid.), but fails
the second and third prongs of the Lemon test.  According to the
court, Section 19 has the impermissible effect "of increasing the
advantages of membership in the type of religious organization
described in the statute.  If an employee is a member of a
(qualifying) religion * * * (he receives) the exemption afforded by
Section 19, while employees * * * who are not members * * * must
resort to an action under * * * Title VII." Pet. App. 8a.
Furthermore, because Section 19 requires the Board to determine if a
religion is "bona fide" and has "historically held conscientious
objections," it necessitates an inquiry that "borders on excessive
entanglement with religion." Ibid.

   The court rejected petitioner's request that it "simply discard the
membership language of Section 19," stating that "courts cannot
judicially redraft statutory language." Pet. App. 11a.  Nor, in the
court's view, was such revision permitted by Section 16 of the Act, 29
U.S.C. 166.  /3/ That Section "preserves other provisions of the (Act)
when one provision is declared invalid," but does not "preserve the
remainder of a provision when a portion thereof is invalidated." Pet.
App. 11a.  It "preserves the application of a provision to persons or
circumstances other than those to which it was held invalid as
applied," but "cannot save Section 19 because it is unconstitutional
on its face." Ibid.

   Accordingly, the court denied petitioner's request to set aside the
Board's order dismissing the unfair labor practice complaint;  it
concluded that Section 19 violates the Establishment Clause and that
Section 19 should be invalidated, rather than extended.  Pet. App.
12a.  /4/

                               ARGUMENT

   The court of appeals correctly upheld the NLRB's determination that
Section 19 extends only to members of certain religious groups that
had historically held conscientious objection to supporting unions.
The question whether Section 19, as so construed, violates the
Establishment Clause presents a difficult question of constitutional
law.  We believe, however, that, in view of the unusual circumstances
regarding petitioner's claim, this case presents a rare instance in
which review is not warranted, even though the court of appeals
concluded that a statutory provision is unconstitutional.

   1. As the court of appeals correctly recognized, Section 19's plain
language applies only to employees who are "member(s) of and adhere()
to" the tenets of a "bona fide religion" that has "historically held
conscientious objections" to joining or financially supporting unions.
 Petitioner nevertheless suggests that the provision should be
construed to apply to all employees with religious objections because
the legislative history compels that conclusion.  Pet. 10-16.  Even if
the legislative history supported petitioner's characterization, it
could not overcome the clarity of the statutory text.  Contrary to
petitioner's contention, however, the legislative history of Section
19 confirms that the membership limitation was considered and
intentional.

   a. Section 19 was originally enacted as part of the National Labor
Relations Act Amendments, 1974, Pub. L. No. 93-360, Section 3,88 Stat.
397, and applied only to the health care industry.  During
consideration of the 1974 Amendments, the Senate rejected an amendment
proposed by Senator Dominick that woul have exempted from union dues
obligations all employees with religious objections to support of
unions, regardless of membership in a religious group that espoused
such an objection.  120 Cong. Rec. 13,535-13,543 (1974);  Staff of
Senate Comm. on Labor and Public Welfare, 93d Cong., 2d Sess.,
Legislative History of the Coverage of Non-profit Hospitals under the
National Labor Relations Act, 1974, at 70-71, 193-212 (Comm. Print
1974) (Leg. Hist.) /5/ The legislative debate regarding Senator
Dominick's amendment reveals congressional concern about the reach of
such a religious objector exemption and about the propriety of
thrusting the Board into such difficult constitutional questions.
This concern was particularly pronounced in light of this Court's
then-recent decision in Welsh v. United States, 398 U.S. 333 (1970),
extending the religious objector provisions of the selective service
laws to those with moral, ethical, or religious objections occupying
the place of religion in one's life.  /6/

   Thereafter, Representative Erlenborn introduced a proposal in the
House, limited to members of qualifying religious organizations who
work for health care institutions.  Representative Erlenborn stated
that his amendment was "very narrowly drawn and would provide only
that religious beliefs held by a person who is a member of a sect that
has held these beliefs as a religious tenet will be able to ask for
this waiver." 120 Cong. Rec. 16,902-16,903 (1974), Leg. Hist. 298.
During the debate on the amendment, Representative Green noted that
there were only seven religious groups with the requisite religious
teachings.  120 Cong. Rec. 16,915, Leg. Hist. 334.  Representative
Erlenborn emphasized that his proposal was "more narrowly drawn than
the conscientious objector provision of the military draft law and * *
* would affect only a very small number of people because there are
only a few religions that do hold this religious belief." 120 Cong.
Rec. 16,914, Leg. Hist. 332.  The Erlenborn amendment was agreed to in
the House (120 Cong. Rec. 16,915-16,916, Leg. Hist. 336-337), and,
with modifications not pertinent here, was acceded to by the Senate in
the Conference and became the original Section 19.  H.R. Rep. No.
1175, 93d Cong., 2d Sess. 3 (1974), Leg. Hist. 347;  S. Rep. No. 988,
93d Cong., 2d Sess. 3 (1974), Leg. Hist. 347.

   b. Petitioner acknowledges (Pet. 11-13) that Section 19, as
originally enacted in 1974, applied only to members of religions with
historical objections to supporting unions.  Petitioner contends,
however, that when Congress broadened Section 19 in 1980 by deleting
the limitation on coverage to health care employees, the provision
"underwent a radical change." Pet. 13.  Petitioner is mistaken.

   In 1980, Congress "amend(ed) Section 19 of the National Labor
Relations Act by making the section apply to 'any employee' instead of
just employees in the health care industry." H.R. Rep. No. 496, 96th
Cong., 1st Sess. 3 (1979).  See National Labor Relations Act
Amendment, 1980, Pub. L. No. 96-593, 94 Stat. 3452.  The pertinent
language of Section 19, however, was not otherwise changed.  /7/ The
legislation thus extended Section 19 to any member of "a bona fide
religion which historically has held conscientious objection to
joining or financially supporting a labor organization." H.R. Rep. No.
496, supra, at 2.  /8/

   The legislative history reveals congressional awareness and
approval of the fact that Title VII of the Civil Rights Act, which
prohibits religious discrimination by employers and unions (42 U.S.C.
2000e(j), 2000e-2(a), 2000e-2(c)), had been interpreted to apply to
those objecting on religious grounds to union security agreements.
See, e.g., H.R. Rep. No. 496, supra, at 2;  126 Cong. Rec. 2581-2582
(1980) (Rep. Clausen);  id. at 2584 (Rep. Erlenborn).  Title VII and
Section 19 thus would be "complementary" and would be "reconcile(d)"
under the 1980 amendment.  126 Cong. Rec. 2582 (Rep. Clausen);  H.R.
Rep. No. 496, supra, at 2.  The availability of Section 19, moreover,
would avoid the necessity of repetitive litigation for established
claims.  126 Cong. Rec. 2581 (Rep. Clausen);  id. at 2584 (Rep.
Erlenborn).  As noted above, these observations were made in a context
in which the membership limitation of Section 19 was repeatedly
reiterated.

   Thus, even if it is necessary to consult the legislative history --
which, in view of the clarity of the statutory text, it is not -- that
history confirms that the membership limitation of Section 19 was
intentional.  /9/

   c. Petitioner contends (Pet. 8), citing International Ass'n of
Machinists v. Street, 367 U.S. 740 (1961) and Communications Workers
v. Beck, 487 U.S. 735 (1988), that the Court has previously been
willing to interpret the union security provisions of the labor laws
in order to avoid constitutional problems and that it should avoid a
constitutional problem here by deleting the membership requirement
from Section 19 and extending its coverage to individually held
religious beliefs against giving financial support to unions.  In
Beck, however, the Court emphasized that it may not choose an
interpretation "'plainly contrary to the intent of Congress'" in order
to avoid constitutional questions.  487 U.S. at 762.  See also CFTC v.
Schor, 478 U.S. 833, 841 (1986) ("(T)his canon of construction does
not give a court the prerogative to ignore the legislative will in
order to avoid constitutional adjudication.").  As shown, there is no
basis for concluding that Congress intended coverage under Section 19
to extend beyond the designated religious groups.  /10/

   2. The constitutionality of Section 19 presents a difficult issue.
Although a court of appeals' conclusion that a statutory provision is
not constitutional is ordinarily a sufficient basis for this Court's
review, we conclude that, in the unusual circumstances of this case,
further review is not warranted.

   At the outset, we note that there is a possible mootness question.
It is well established that Title VII provides extensive protection to
religious objectors, such as petitioner, whose religious objections to
union security agreements are based on personal religious objections.
/11/ Here, after completion of the NLRB proceedings, petitioner filed
a complaint with the Equal Employment Opportunity Commission (EEOC)
charging the Union with religious discrimination.  /12/ Although the
complaint was filed after the NLRB proceeding and is not part of the
record of that proceeding, petitioner cited it as a related case on
his court of appeals docketing sheet, and we bring it to the Court's
attention because its disposition may raise a question of mootness.
/13/ In July 1990, the EEOC sent petitioner a reasonable cause letter.
 /14/ Although petitioner never filed suit, the EEOC subsequently
obtained the Union's formal agreement, in November 1990, to provide
accommodation for any individual with religious objections to union
security agreements, regardless of membership in a religious
organization.  /15/ A question of mootness thus arises because
petitioner's employement was not terminated or otherwise suspended as
a result of his objections;  petitioner was not required to pay union
dues;  and the Union has entered into an agreement with a government
agency committing itself to accommodate those, like petitioner, who
have personal religious objections.

   Despite these facts, we believe that petitioner's claim is not
moot.  Petitioner maintains that the Union's initial request that he
be fired was an unfair labor practice.  If petitioner were covered by
Section 19, it would have been a violation of Section 8(b)(2) of the
Act for the Union to "attempt to cause" the Company to discharge him
for failure to pay dues because of a bona fide religious belief.  See
note 1, supra.  In those circumstances, cessation of the unlawful
conduct, or even compliance with a Board order, would not "render the
case moot" or remove the basis for a Board cease-and-desist order if
the Board decided that such an order was warranted.  NLRB v. Mexia
Textile Mills, Inc., 339 U.S. 563, 567 (1950);  see also NLRB v.
Raytheon Corp., 398 U.S. 25, 27-28 (1970).

   Nevertheless, although we do not believe that the case is moot,
petitioner's claim of an actual and continuing injury is, in this
context, quite thin and insubstantial.  In our view, it is so thin
that it is an inadequate basis for requiring this Court to resolve the
constitutional questions presented.  In other contexts, this Court has
repeatedly stressed the need for prudence in the adjudication of
constitutional claims.  See generally Ashwander v. TVA, 297 U.S. 288,
346-348 (1936) (Brandeis, J., concurring).  With regard to this case,
as a practical matter, very little now turns on the outcome of
petitioner's constitutional claim.

   Indeed, petitioner's claim is especially attenuated because, if
petitioner were to prevail on his contention that Section 19 should be
broadly construed and the case were remanded to the Board, it is
likely that the Union would be willing to settle the Board case on the
same terms that it reached with the EEOC and that the Board would
accept that resolution of the dispute.  Petitioner's claim is also
attenuated because, even under the court of appeals' conclusion that
the provision is unconstitutional, he is not entitled to the relief
that he seeks (see Pet. App. 12a) -- relief that is, in any event,
essentially duplicative of relief already provided.  /16/

   Further considerations also counsel against review.  This is a case
of first impression and, at least to this point, does not appear to be
of recurring significance.  Furthermore, there is no court of appeals
conflict on this issue and, indeed, no other court of appeals
decisions on the subject.  /17/ Although these considerations would
ordinarily not be an adequate basis for denying review of a court of
appeals' determination that a statutory provision is unconstitutional,
they support the conclusion that review is not warranted in this case,
in which resolution of the constitutional issues will have very little
effect on the resolution of the underlying dispute.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General Department of Justice

   JERRY M. HUNTER

      General Counsel

   D. RANDALL FRYE

      Acting Deputy General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel National Labor Relations Board

   MAY 1991

   /1/ The unfair labor practice complaint rested on the
interrelationship of three provisions of the Act -- Section 8(b)(2),
Section 8(a)(3), and Section 19.

   Section 8(b)(2), 29 U.S.C. 158(b)(2), prohibits a union from
"caus(ing) or attempt(ing) to cause an employer to discriminate
against an employee in violation of" Section 8(a)(3).

   Section 8(a)(3), 29 U.S.C. 158(a)(3), prohibits employer
discrimination based on union membership or lack of membership.  The
first proviso to Section 8(a)(3), however, creates a limited exception
for union security agreements.  It permits an agreement between a
union and an employer requiring, "as a condition of employment(,)
membership (in the union) on or after the thirtieth day following the
beginning of such employment" (29 U.S.C. 158(a)(3));  "the burdens of
membership upon which employment may be conditioned are expressly
limited to the payment of initiation fees and monthly dues." NLRB v.
General Motors Corp., 373 U.S. 734, 742 (1963).

   Section 19, 29 U.S.C. 169, in turn, creates an exemption from the
obligation imposed by a union security agreement.  It provides:

         Any employee who is a member of and adheres to established
      and traditional tenets or teachings of a bona fide religion,
      body, or sect which has historically held conscientious
      objections to joining or financially supporting labor
      organizations shall not be required to join or financially
      support any labor organization as a condition of employment;
      except that such employee may be required in a contract between
      such employee's employer and a labor organization in lieu of
      periodic dues and initiation fees, to pay sums equal to such
      dues and initiation fees to a nonreligious, nonlabor
      organization charitable fund exempt from taxation under section
      501(c)(3) of title 26, chosen by such employee from a list of at
      least three such funds, designated in such contract or if the
      contract fails to designate such funds, then to any such fund
      chosen by the employee.  If such employee who holds
      conscientious objections pursuant to this section requests the
      labor organization to use the grievance-arbitration procedure on
      the employee's behalf, the labor organization is authorized to
      charge the employee for the reasonable cost of using such
      procedure.

   /2/ The court observed that the coverage of Section 19 is not as
broad as the coverage of Section 701(j) of Title VII of the Civil
Rights Act of 1964, as amended.  42 U.S. 2000e(j).  Section 701(j)
protects "all aspects of religious observance and practice, as well as
belief," regardless of membership in a religion, body, or sect.  Pet.
App. 5a.  The court noted that Title VII has been interpreted to
require unions and employers to accommodate an employee's religious
objections to union support by allowing an employee to donate an
amount equal to the amount of union dues to a mutually acceptable
charity.  Ibid.

   /3/ Section 16, 29 U.S.C. 166, provides:

         If any provision of this (Act), or the application of such
      provision to any person or circumstances, shall be held invalid,
      the remainder of this (Act), or the application of such
      provision to persons or circumstances other than those as to
      which it is invalid, shall not be affected thereby.

   /4/ The court rejected petitioner's additional contention that
Section 19, as construed by the Board, violates the Free Exercise
Clause.  The court noted that "to establish a violation of the free
exercise clause an individual must first show that the government has
placed a substantial burden on the practice of his religion." Pet.
App. 12a.  The court concluded that "Section 19 does not burden
(petitioner's) practice of his religion." Rather, "it requires
employers to provide a substituted charity accommodation" to "members
of religions having the beliefs described in the statute," while
"nonmember employees having the same religious beliefs must file an
action under Section 701(j) of Title VII to obtain an accommodation."
Although it protects petitioner's religious beliefs, "the free
exercise clause * * * does not mandate the accommodation offered by
Section 19." Pet. App. 12a.

   /5/ The Senate had earlier rejected an amendment proposed by
Senator Ervin to exempt from the 1974 Amendments any hospital "owned,
supported, controlled, or managed by a particular religion or by a
particular religious corporation or association." 120 Cong. Rec.
12,950 (1974), Leg. Hist. 118-119;  120 Cong. Rec. 12,968, Leg. Hist.
141.

   /6/ See 120 Cong. Rec. 13,539 (1974), Leg. Hist. 203 (Sen. Taft)
("Would not the National Labor Relations Board be forced into some of
the difficult and troublesome legal and practical questions that have
faced the Selective Service Commission on this point?  For example,
the Supreme Court in Welsh v. U.S., 398 U.S. 333 (1970), held that an
individual could qualify as a conscientious objector if opposition to
war stemmed not only from religious teachings, but also from
deep-seated nonreligious teachings against war.  Would not the same
analogy apply with respect to the standards in the proposed
amendment?");  120 Cong. Rec. 13,536, Leg. Hist. 195 (Sen. Williams)
(the Board's determination "whether the employee is a bona fide
religious objector * * * would not only be time-consuming, it would
involve esoteric and highly sensitive interpretations.").

   /7/ The 1980 amendment also added the last sentence to Section 19,
see note 1, supra, providing that religious objectors could be charged
if they used the union's grievanc procedures.  94 Stat. 3452.

   /8/ Similar statements were made by supports of the amendment.
Representative Erlenborn explained that Section 19 addressed the needs
of "individuals belonging to certain religions and sects who hold
religious beliefs against joining or financially supporting labor
organizations." 126 Cong. Rec. 2583 (1980).  See also id. at 2580
(Rep. Thompson) (Section 19's "provisions would apply to any person
who can produce adequate verification of membership in a bona fide
religion that has historically held conscientious objections to
joining or financially supporting a labor organization");  ibid. (Rep.
Hinson) (Amendment applies to "any employee who is a member" and
accommodates "the beliefs of certain religions which prohibit
membership in or financial support of a labor organization");  id. at
2583 (Rep. Duncan) ("Anyone claiming this status must show
membership");  id. at 2584 (Rep. Ashbrook) (1974 amendment applied "if
any employee of a health care institution belonged to a religion or
sect which historically held conscientious objection * * *.  This bill
expands those protections * * * to all employees, not just employees
of health care institutions.").

   /9/ We note that, in 1987, the Department of Justice submitted an
amicus brief to the Ninth Circuit, in a case concerning a union's
claim that Section 19 limited the scope of Title VII, in which the
United States argued that, if the court found it necessary to reach
the issue, Section 19 should be construed to apply to all religious
objectors.  Gov't Amicus Br. at 19-23, filed in International Ass'n of
Machinists, Lodge 751 v. Boeing, 833 F.2d 165 (9th Cir. 1987), cert.
denied, 485 U.S. 1014 (1988).  The government's amicus brief (at 20
n.9) noted that this aspect of Section 19 had not then been construed
by the National Labor Relations Board.  Upon further review of the
pertinent legislative materials, and in light of the Board's
subsequent construction of Section 19, we now conclude that the Board
is correct in adhering to the plain meaning of the statutory text.

   /10/ Petitioner's reliance on other decisions of this Court (Pet.
10) is similarly misplaced.  In NLRB v. Catholic Bishop, 440 U.S. 490
(1979), the Court found no "affirmative intention" that Congress
intended to cover parochial school teachers under the National Labor
Relations Act.  440 U.S. at 500-501, 504.  Here the intention of
Congress to limit Section 19 to certain religious groups is explicit.
In Welsh v. United States, 398 U.S. 333 (1970), the Court construed
the Selective Service Act religious conscientious objector provision
to include personal beliefs;  when Section 19 was initially enacted,
in contrast, Representative Erlenborn specifically noted that Section
19 was more narrowly drawn than the military draft exemption.  See
page 9, supra.  And, in United States v. Rumely, 345 U.S. 41, 47
(1953), the Court found that the Congressional Resolution at issue
left open a "(c)hoice" as to the proper definition to be given the
term "lobbying." Section 19 leaves no choice as to whether the
limiting language may be read out of the provision.

   /11/ See, e.g., International Ass'n of Machinists, Lodge 751 v.
Boeing, 833 F.2d 165 (9th Cir. 1987), cert. denied, 485 U.S. 1014
(1988);  29 C.F.R. 1605.2(d)(2) (EEOC Guidelines on Discrimination
Because of Religion).

   /12/ In the court of appeals, petitioner stated that his EEOC
complaint was filed because the Union had filed a separate lawsuit
against the Company seeking his dismissal, a suit that was eventually
dismissed upon agreement of the parties.  See Petitioner's Letters to
C.A., Sept. 11 & 18, 1990;  see also NLRB Letter to C.A., Sept. 13,
1990.

   /13/ See Board of License Comm'rs v. Pastore, 469 U.S. 238, 240
(1985) ("(C)ounsel * * * have a 'continuing duty to inform the Court
of any development which may conceivably affect the outcome' of the
litigation," and questions of possible mootness "should be called to
the attention of the Court without delay");  Fusari v. Steinberg, 419
U.S. 379, 391 (1975) (Burger, C.J., concurring).

   /14/ Petitioner provided the NLRB with copies of his complaint and
of the EEOC's reasonable cause letter.

   /15/ In a notice posted by the Union (and provided by the Union to
the NLRB), the Union explained that the notice was posted as "part of
the remedy agreed to pursuant to a conciliation agreement between" the
Union and the EEOC.  The Union further announced, as part of that
agreement, that it would "accommodate individuals in the collective
bargaining unit with respect to sincerely held religious beliefs by
not requesting their termination." The Union also advised that
"(i)ndividual(s) affected by our conduct will be made whole for any
losses they suffered as a result of the discrimination against them,"
and that "employees will not be discriminated against on the basis of
their religion."

   /16/ We note that, in addition to the fact that petitioner has
obtained substantial relief under Title VII, the availability of Title
VII is critical to a correct understanding of Section 19.  In our
view, the court of appeals failed to properly appreciate its
significance.  Unlike Larson v. Valente, supra, this case does not
concern a substantive difference in the imposition of a burden on
different religious groups;  rather, it involves differences in
procedural mechanisms in the context of generally applicable
protections for all religious objectors.  The principal difference
between Section 19 and Title VII is that Section 19 is enforceable
through the National Labor Relations Act procedural machinery and the
National Labor Relations Board, while Title VII is enforceable through
the Civil Rights Act procedural machinery and litigation in the
federal courts.  As noted, in the congressional consideration of
Section 19, concern was expressed about the Board's competence in
addressing the difficult and sensitive constitutional issues of
personal religious objections, and Section 19 is thus limited to those
claims that are the most readily identifiable and verifiable.  The
substantive protections afforded by Section 19 and Title VII, however,
are very similar.  Both allow exemptions from union security
agreements, and both permit substitute charity contributions in lieu
of union contributions.  See, e.g., Tooley v. Martin-Marietta Corp.,
648 F.2d 1239, 1242-1243 (9th Cir.), cert. denied, 454 U.s. 1098
(1981).  Although an "undue hardship" defense is available under Title
VII, see 42 U.S.C. 2000e(j);  Tooley, 648 F.2d at 1243-1244, courts
have found that, with a substitute charity accommodation, exemptions
from union security agreements based on religious objections did not
present such an undue hardship.  See, e.g., Nottelson v. Smith Steel
Workers, 643 F.2d 445, 451-452 (7th Cir.), cert. denied, 454 U.S. 1046
(1981);  Burns v. Southern Pacific Transportation Co., 589 F.2d 403,
406-407 (9th Cir. 1978), cert. denied, 439 U.S. 1072 (1979).
(Different problems may be presented when an employee's religious
objection is, not to unions as such, but to the particular activities
of a particular union.  See EEOC v. University of Detroit, 904 F.2d
331 (6th Cir. 1990)).

   We also note that neither party below contended that Section 19
should be analyzed under the Larson v. Valente test, see Pet. App. 6a,
and petitioner does not even cite Larson in his petition.  Indeed, it
is not clear that petitioner could appropriately rely on Larson.  That
case involved distinctions between sects;  petitioner's claim does not
rest on his membership in a sect that does not meet the requirement of
Section 19 but rather on his personal religious beliefs.  See Pet.
App. 3a-4a.  See also Lynch v. Donnelly, 465 U.S. 668, 679 (1984)
(describing Larson as a case "where there was substantial evidence of
overt discrimination against a particular church").

   /17/ Although petitioner suggests that, if this case is not
reviewed, the issue cannot arise in future judicial review of Board
decisions (Pet. 7), this assertion is incorrect.  The scope of Section
19 could arise, for instance, in an employer's defense to a union's
charge that the employer improperly failed to discharge an employee
with personal religious objections to a union security agreement;  the
Board would be required to respond to such a defense, and the Board's
determination would be fully reviewable in the courts of appeals if
the usual prerequisites for judicial review were satisfied.  See also
Arvin Industries, 285 N.L.R.B. 753, 757 (1987) (explaining that, in
view of congressional intent and Act's venue provisions, a single
court of appeals decision does not necessarily bind Board in its
implementation of nation-wide labor policy).