PETERSON PAINTING, INC., PETITIONER V. NATIONAL LABOR RELATIONS
BOARD

   No. 86-1543

   In the Supreme Court of the United States

   October Term, 1986

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

   Supplemental Memorandum for the National Labor Relations Board

   In its supplemental brief, petitioner asks the Court to remand this
case to the court of appeals with instructions that the court of
appeals in turn remand it to the Board for reconsideration in light of
the Board's decision in John Deklewa & Sons, 282 N.L.R.B. No. 184
(Feb. 20, 1987).  There is no merit to that suggestion.

   1. In Deklewa, the Board overruled certain of its prior decisions
and held, in pertinent part, that upon the expiration of a pre-hire
agreement under Section 8(f) of the National Labor Relations Act (the
Act), 29 U.S.C. 158(f), "the signatory union will enjoy no presumption
of majority status, and either party may repudiate the 8(f) bargaining
relationship." Deklewa, 282 N.L.R.B. No. 184, at 8.  The Board further
held (id. at 40-42 (citation omitted)) that it would follow its "usual
practice" and apply the decision in Deklewa retroactively "to all
pending cases in whatever stage."

   2. Petitioner has not shown that Deklewa has any application to its
bargaining relationship with the Union.  Deklewa applies where the
bargaining relationship is based on Section 8(f) rather than actual
majority status, which the Union enjoyed here.  /1/

   In any event, petitioner is not entitled to rely on Deklewa, having
failed to assert before the Board that it had an 8(f) relationship
with the Union.  Section 10(e) of the Act, 29 U.S.C. 160(e), provides
that "(n)o objection that has not been urged before the Board * * *
shall be considered by the court, unless the failure or neglect to
urge such objection shall be excused (by) extraordinary
circumstances." Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,
665-666 (1982).  The fact that Deklewa had not been decided does not
constitute "extraordinary circumstances" that excuse petitioner's
failure to assert 8(f) status.  As this Court has observed, even where
an agency has "a predetermined policy * * * which would have required
it to overrule the objection if made(,)" a litigant is required to
raise an issue before the agency in order to preserve it for review.
United States v. Tucker Truck Lines, 344 U.S. 33, 37 (1952).

   3. Finally, petitioner has misread (Supp. Br. 6) the Board's
statement that Deklewa applies "to all pending cases in whatever
stage." In elaborating in Deklewa on its "usual practice" governing
retroactivity, the Board relied (282 N.L.R.B. at 42) on Deluxe Metal
Furniture Co., 121 N.L.R.B. 995 (1958), in which the Board stated (121
N.L.R.B. at 1006) that it would apply new rules retroactively to any
case "which has not yet been decided, because it has not reached the
Board's level or is at one of the other stages of the administrative
process such as the hearing." The present case was not, when Deklewa
was decided, "pending" in this sense.

   CHARLES FRIED

      Solicitor General

   ROSEMARY M. COLLYER

      General Counsel National Labor Relations Board

   JUNE 1987

   /1/ Petitioner conceded, and the Board found (Pet. App. 19a), that
during the term of the agreement the Union in fact represented a
majority of the employees in the multi-employer unit.  The Board said
that "the record affirmatively shows that the Union in fact
represented all (of petitioner's) unit employees through June 30,
1983" (Pet. App. 19a-20a), when the contract expired and petitioner
withdrew recognition from the Union.