WOODKRAFT DIVISION/GEORGIA KRAFT COMPANY, PETITIONER V. NATIONAL
LABOR RELATIONS BOARD

   No. 83-103

   In the Supreme Court of the United States

   October Term, 1983

   On writ of certiorari to the United States Court of Appeals for the
Eleventh Circuit

   Motion to vacate the judgment of the court of appeals and to remand
the case to the National Labor Relations Board for further proceedings

   For the reasons set forth below, the Solicitor General, on behalf
of the National Labor Relations Board, requests that the portion of
the judgment of the court of appeals on which certiorari was granted
be vacated and that the case be remanded to the Board for
reconsideration in light of Clear Pine Mouldings, Inc., 268 N.L.R.B.
No. 173 (Feb. 22, 1984).

   1. On November 14, 1983, this Court granted the Company's petition
for a writ of certiorari limited to the question whether the conduct
of two strikers, in telling a nonstriker at his home that they would
"take care of" him if he continued to work during the strike, was such
serious misconduct as to deprive the strikers of the protection of
Section 7 of the National Labor Relations Act, 29 U.S.C. 157, and thus
their reinstatement rights under the Act.  In concluding that the
strikers were unlawfully discharged for this misconduct, the Board
applied the standard that verbal threats unaccompanied by physical
acts or gestures do not constitute strike misconduct sufficient to
warrant a denial of reinstatement (Pet. App. A40).  The court of
appeals affirmed, finding that the Board's standard "comports with
Section 7 of the Act * * * " (Pet. App. A20).

   In its petition for certiorari and brief on the merits, petitioner
contends (Pet. 8-13;  Br. 7-14) that the Board's "physical acts or
gestures" standard is inconsistent with Section 7 of the Act.  It
urges adoption of the McQuaide Standard followed by the First and
Third Circuits, i.e., "'whether the misconduct is such that, under the
circumstances existing, it may reasonably tend to coerce or intimidate
employees in the exercise of rights protected under the Act.'" NLRB v.
W. C. McQuaide, Inc., 552 F.2d 519, 528 (3d Cir. 1977) (quoting Local
542, International Union of Operating Engineers v. NLRB, 328 F.2d 850,
852-853 (3d Cir.), cert. denied, 379 U.S. 826 (1964));  Associated
Grocers of New England v. NLRB, 562 F.2d 1333, 1336 (1st Cir. 1977).

   2. On February 22, 1984, the Board issued a supplemental decision
in Clear Pine Mouldings, Inc., 268 N.L.R.B. No. 173, in which it
abandoned its prior standard that verbal threats unaccompanied by
physical acts or gestures do not warrant a denial of reinstatment.
/1/ The Board stated (slip op. 7):  "Although we agree that the
presence of physical gestures accompanying a verbal threat may
increase the gravity of verbal conduct, we reject the per se rule that
words alone can never warrant a denial of reinstatement in the absence
of physical acts." The Board, instead, adopted the McQuaide "objective
test" for determining whether verbal threats by strikers justify an
employer's refusal to reinstate, i.e., "'whether the misconduct is
such that, under the circumstances existing, it may reasonably tend to
coerce or intimidate employees in the exercise of rights protected
under the Act'" (slip op. 7;  see also id. at 15 (concurring
opinion)).  /2/

   3. Since the Board no longer adheres to the standard governing the
assessment of strike misconduct that petitioner challenges in this
case and has adopted, for this and future cases, the McQuaide standard
(which petitioner contends is the proper standard), there is no longer
a legal issue warranting resolution by this Court.  The only issue
that remains is the application of the McQuaide standard to the facts
of this case.  That is a task which should be performed by the Board
in the first instance.  See Bachrodt Chevrolet Co. v. NLRB, 411 U.S.
912 (1973);  FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 245-250
(1972);  SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943).

   Accordingly, it is respectfully submitted that this motion should
be granted.

   REX E. LEE

      Solicitor General

   MARCH 1984

   /1/ Copies of the Board's decision in Clear Pine Mouldings have
been lodged with the Court and provided to petitioner.

   /2/ The Board overruled "(p)revious Board decision that failed to
apply this standard, including the cases cited in fn. 8, supra" (slip
op. 8 n.14;  see also id. at 15 n.2 (concurring opinion)).  One of the
cases listed in footnote 8 is "Georgia Kraft Co., 258 N.L.R.B. 908,
912-913 (1981), enfd., 696 F.2d 931 (11th Cir. 1983), cert. granted,
52 U.S.L.W. 3386 (U.S. November 14, 1983) (No. 83-103)" (slip op. 6
n.8).  The Board added that, in accordance with its usual practice, it
would apply the McQuaide standard "to all pending cases in whatever
stage" (slip op. 8 n.14).