Petition — Chamber of Commerce of the United States v. United Steelworkers

Supreme Court brief1975

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IN THE

Supreme Court of the United States

OcToOBER TERM, 1975

THE CHAMBER OF COMMERCE OF THE UNITED STATES

oF AMERICA, Petitioner,

UNITED STEELWORKERS OF AMERICA, AF L-CIO-CLC,

and

THE UNITED STATES District COURT FOR THE

EASTERN DISTRICT OF MICHIGAN

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

GERARD C. SMETANA,

WituiaM H. DuRoss, III,

Borovsky, SMETANA, EHRLICH &

KRONENBERG

2011 Eye Street, N.W.

Suite 800

Washington, D. C. 20006

Attorneys for the Chamber of

Commerce of the United States

RicHaRD BERMAN

Labor Relations Counsel,

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA

1615 H Street, N.W.

Washington, D. C. 20006

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

sl a

INDEX

Page

ee eC osc ccecueneveecsaneeene 1

PEE nan6 16546 Cekes eee seraevenntnensendes 2

I ns cd eeeeieunuananeeeaees 2

ORS GEE Tee BUUINOS 6 vn ccc casndccciccccsces 2

Statement:

4. The Order of the District Court .............. 4

B. The Decision of the Court of Appeals ........ 7

Reasons for Granting the Writ:

I. The Court Must Resolve the Dilemma Which the

District Court’s Discovery Order Places All

Associations Who Engage in Litigation on Be-

Se ee I I oc ccccucecaucadanes 7

II. There Must Be an Appeal Route Other Than

Contempt To Obtain Judicial Review of a Pre-

Trial Order Where That Order as a Practical

Matter Determines the Validity of a Claim of

Constitutional Immunity ................006- 14

A. 28 U.S.C. § 1291 authorizes an immediate

appeal from pretrial orders without the ne-

cessity of a contempt citation ............. 15

B. A Writ of Mandamus is appropriate to ob-

tain review of a discovery order which im-

pairs the free exercise of First Amendment

EL 448o-ckand Aidedenaedehasdeweieniies 19

Conclusion

ii Index Continued

CITATIONS

Page

CAsEs:

American Civil Liberties Union y. Jennings, 366 F.

Supp. 1041 (D.D.C. 1973), appeal pending sub

nom. Staats v. ACLU, (Sup. Ct. No. 73-1413) ... 9

Auto Workers v. National Right to Work Foundation,

376 F.Supp. 1060 (D.D.C. 1974), appeal dismissed,

— F.2d —, 88 LRRM 2314 (D.C. Cir. 1974), cert.

ee Ge Tee, EE 6 0 6k < cacbibenecasesess 13-14

Bank Line v. United States, 163 F.2d 133 (2d Cir.

ED sada banantsciusds de desenisensaeds tae 18

Bates v. City of Little Rock, 361 U.S. 516 (1960) .... 8

Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) 9

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

SE co b4educd an un vue douseussss curs ucres 15, 17

Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th

Cir.), cert. denied, 380 U.S. 964 (1965) ........ 16,18

Dickinson vy. Petroleum Conversion Corp., 338 U.S. 507

DE <cntines un euscalecnadeeenuantdaweuweesens 14

Foz v. Capital Co., 299 U.S. 105 (1936) .............-. 17

Fraser v. United States Court, 145 F.2d 139 (6th Cir.

1944), cert. denied, 324 U.S. 849 (1945) ......... 18

Gialde v. Time, Inc., 480 F.2d 1295 (8th Cir. 1973) ... 18

Gibson v. The Florida Legislative Investigative Com-

ess, Tle Gale WEP CHEE sine dcdccscdcacaness 8

Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973) 10

Grinnell Corp. v. Hackett, 475 F.2d 404 (1st Cir.), cert.

Gambed, GEG WA GRD CRE oocccncseccecenessces 11

Grosjean v. American Press Co., 297 U.S. 233 (1935) . 10

Harper and Row Publishers, Inc. v. Decker, 423 F.2d

487 (7th Cir. 1970), affd. 400 U.S. 348 (1971) .... 22

Kerr. v. U. S. District Court, cert. granted, 95 S.Ct.

ee SED 0k4 4s Gukaanuds canned benscenesaen 19

LaBuy v. Howes Leather Co., 352 U.S. 249 (1957) .... 21

May Dept. Stores v. Labor Board, 326 U.S. 376 (1945) 10

NAACP v. Alabama, 357 U.S. 449 (1958) .......... 8, 9, 16

National Motor Freight Assn. v. U.S., 372 U.S. 246

SU WiSKNO LU SEES TEs badd sane s eemerEe tees 13

Index Continued iii

Page

Pfizer v. Lord, 456 F.2d 515 (8th Cir. 1972) .......... 22

Preiser v. Newkirk, — U.S. —, 95 S.Ct. 2330 (1975) .. 16

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ..10, 11, 12, 21

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) .......... 17

Sierra Club v. Morton, 405 U.S. 727 (1972) ...... 8, 10, 13

Southern Ry. Co. v. Lanaham, 408 F.2d 348 (5th Cir.

es ee se a ea ne eue tees es 17

Super Tire Engineering v. McCorkle, 416 U.S. 115

ee GU rec Se ChE nda c are ekee teense ee ae 12

Textile Wkrs. v. Darlington Mfg. Co., 380 U.S. 263

eee eee eE Cle awkk Cadgee Webenedaes soeee 9

United States Bd. of Parole v. Merhige, 487 F.2d 25

(4th Cir. 1973), cert. denied, 417 U.S. 918 (1974) 22

United States v. Hemphill, 369 F.2d 539 (4th Cir. 1966)

14-15; 18

United States v. IBM Corp., 492 F.2d 112 (2d Cir.

1973), cert. denied, 416 U.S. 995 (1974) ......... 18

United Trans. Union v, State bar of Michigan, 401

i iene deteeew ibd chenadeee 4 8-9

Warth v. Seldin, — U.S. —, 95 S.Ct. 2197 (1975)

8, 10, 12-13

STATUTES:

First Amendment to the U. S. Constitution ...... 9, 10, 14

Fifth Amendment to the U. S. Constitution ......... 9

Fourteenth Amendment to the U. 8. Constitution .... 9

cee siane sae eeekensbadtnenntes 14, 15, 17

EE cca vce Sc ncnbaudevesickewensens 14

MISCELLANEOUS:

Wright & Miller, Federal Practice € Procedure: Civil

ihre oie ee ees ppagkestasannent ss sas 15

Comment, ‘‘Appealability in the Federal] Courts’’, 75

eG ik, Si i PD ous one 60600000 se8esus 21-22

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No.

THE CHAMBER OF COMMERCE OF THE UNITED STATES

or AMERICA, Petitioner,

UnITED STEELWORKERS OF AMERICA, AF L-CIO-CLC,

and

THE Unitrep States District Court FOR THE

EASTERN District oF MICHIGAN

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

The Chamber of Commerce of the United States

of America (‘‘the Chamber’’), on beha!f of itself and

its member Dow Chemical Company (*‘Dow’’), peti-

tions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Sixth

Circuit in this ease.

ORDERS AND OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

pp. la-6a) * is not yet officially reported. The discovery

order of the district court (Pet. App. pp. 7a-8a) is

likewise unreported.

1**Pet. App.’’ refers to the appendices attached to the instant

**Dow’’ petition.

JURISDICTION

The judgment of the court of appeals (Pet. App.

p. 9a) was entered on July 1, 1975. On August 21,

1975, the court of appeals denied the Chamber’s timely

petition for rehearing (Pet. App. p. 10a). The juris-

diction of this Court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Whether any membership association can be

required, consistent with the First Amendment right

of freedom of association, to disclose the identities

of its injured members through a discovery order

as a condition to engaging in civil litigation on behalf

of its members where standing requires the association

to plead the injury of at least one of its members.

' 2. Whether an immediate appeal of a pretrial

discovery order is appropriate under 28 U.S.C. § 1291

as an important question where the order infringes

upon the rights of all membership associations to

initiate litigation on behalf of their injured members.

3. Whether a writ of mandamus should lie where

a pre-trial discovery order violates freedom of asso-

ciation rights and the protective provision is inade-

quate to protect against widespread dissemination.

STATUTES AND RULES INVO'.VED

The relevant provisions of the United States Con-

stitution, the United States Code 28 U.S.C. § 129]

and 28 U.S.C. 1651(a) and Rule 37(b) of the Federal

Rules of Civil Procedure are set forth below:

The First Amendment provides:

Congress shall make no law respecting an es-

tablishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Gov-

ernment for a redress of grievances.

28 U.S.C. § 1291 provides:

The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district

courts of the United States, the United States

District Court for the District of the Canal Zone,

the District Court of Guam, and the District

Court of the Virgin Islands, except where a direct

review may be had in the Supreme Court.

28 U.S.C. § 1651(a) provides:

The Supreme Court and all courts established

by Act of Congress may issue writs necessary or

appropriate in aid of their respective juriscic-

tions and agreeable to the usages and principles

of law.

Rule 37(b) Failure to comply with order.

(2) Sanctions by court in which action is pend-

ing. If a party or an officer, director, or man-

aging agent of a party or a person designated

under Rule 30(b)(6) or 31(a) to testify on behalf

of a party fails to obey an order to provide or

permit discovery, including an order made under

subdivision (a) of this rule or Rule 35, the court

in which the action is pending may make such

orders in regard to the failure as are just, and

among others the following:

(A) An order that the matters regarding which

the order was made or any other designated facts

shall be taken to be established for the purposes

of the action in accordance with the claim of the

party obtaining the order;

(B) An order refusing to allow the disobedient

party to support or oppose designated claims or

defenses, or prohibiting him from introducing

designated matters in evidence;

thereof, or staying further proceedings until the

order is obeyed, or dismissing the action or pro-

ceeding or any part thereof, or rendering a judg-

ment by default against the disobedient party:

(D) In lieu of any of the foregoing orders or

in addition thereto, an order treating as a con-

tempt of court the failure to obey any orders

except an order to submit to a physical or mental

examination. ...

STATEMENT

A. The Order of the District Court

The order of which review is sought arises from

an action in which the Chamber,’ as a plaintiff, has

challenged the payment by the State of Michigan,

through its Employment Security Commission

(““MESC”’),’ of employment compensation benefits

to striking employees. On July 25, 1972, the Chamber,

* The Chamber is an association consisting of a membership of

over 3,700 state and local chambers of commerce and trade and

professional associations, a direct business membership in excess

of 38,000, and an underlying membership of approximately

5,000,000 business firms and individuals. A number of the Cham-

ber’s members are employers subject to the Michigan Employ-

ment Security Act, 12 M.S.A. § 17,501 et seq. (‘“‘MESA’’) which

requires them to make contributions to the Michigan Employ-

ment Security Commission, and are, as well, subject to the Labor

Management Relations Act of 1947, as amended, 49 U.S.C. §151

et seq. |“*LMRA’’) whereunder they are obligated to bargain eol-

lectively with the bargaining representatives of their employees.

is The Michigan Employment Security Commission is charged

with the enforcement, operation and execution of MESA and has

applied MESA so as to provide unemployment benefits to strik-

ing employees and to charge such benefits agains

involved. gainst the employers

together with and on behalf of one of its injured mem-

bers, Dow, * filed a complaint for declaratory judgment

and injunction to enjoin and nullify the Michigan Em-

ployment Security Act insofar as that statute author-

izes the payment of unemployment benefits to striking

employees (Pet. App. pp. 18a-19a).° The complaint al-

leged that such state payments to strikers contravene

federal labor policy by disrupting the congressionally

established scheme of free collective bargaining and,

thereby violate the Supremacy Clause of Article VI,

Clause 2 of the Constitution of the United States (Pet.

App. p. 17a).

During the course of pre-trial discovery, the Steel-

workers * served upon the Chamber a set of twenty-

two interrogatories (Pet. App. pp. 23a-33a). The inter-

rogatory at issue here requested the Chamber to

identify all its members subject to the Michigan

Employment Security Act since January 1, 1968 (Pet.

App. p. 23a).

On June 27, 1974, the district court over the objec-

tions of the Chamber, issued its Memorandum Opin-

ion requiring the Chamber to disclose the identity

of its members subject to MESA (Pet. App. pp.

*Dow is an employer subject to MESA and is, therefore, re-

quired to make contributions to MESC. Dow is also subject to

the LMRA and is required to bargain collectively with the bar-

gaining representative of its employees.

°> Such benefits had in fact been paid at various times to strik-

ing employees of Dow during the course of strikes by the Steel-

workers at Dow’s Midland and Bay City, Michigan facilities.

®The Steelworkers were granted leave to intervene on Septem-

ber 5, 1972. The Steelworkers are the certified bargaining repre-

sentative of the striking employees of Dow.

34a-38a).' The district court rejected the Chamber’s as-

sertion of constitutional privilege, because in its view

the Chamber had not ‘‘clearly documented”’ the harm

to its members which would result once the Steel-

workers obtained the requested information. The dis-

trict court further ruled that the names of the Cham-

ber’s Michigan members were relevant to this action

and necessity for the Steelworkers defense (Pet. App.

p. 36a). The court also concluded that, in bringing

this action, the Chamber waived any constitutional

privilege against disclosure of its members’ identities

which it may have enjoyed (Pet. App. p. 37a). On

October 4, 1974, the district court issued an order

compelling the Chamber to furnish the Steelworkers

with a list of its Michigan members subject to MESA

within 30 days (Pet. App. pp. 7a-8a). The court issued

a protective order which provides (Pet. App. p. 8a) :

Defendant-intervenor United Steelworkers of

America, AFL-CIO-CLC shall not make use of

the list of member business firms which plaintiff

The Chamber of Commerce of the United States

of America must provide in its answer to Inter-

rogatory No. 1 of the Revised Amended Inter-

rogatories or disclose the identity of such mem-

ber business firms except to defendant-intervenor

United Steelworkers of America, AFL-CIO-

CLC’s employees and then only when necessary

to prepare for and assist in the defense of this

action.

On October 18, 1974, the Chamber moved the dis-

trict court to reconsider its October 4, 1974 Order

*In addition, the district court held that the Chamber must

respond to certain other Interrogatories. In accordance with that

holding and the district court’s subsequent October 4, 1974 order,

the Chamber timely answered the Steelworkers’ revised and

amended Interrogatories.

and submitted comprehensive documentary evidence

of the irreparable injury which disclosure would

cause. This motion was denied on October 29, 1974

(Pet. App. p. 43a). Thereafter, the Chamber moved™~

the district court to amend its October 4, 1974 Order

to permit an immediate appeal pursuant to 28 U.S.C.

§ 1292(b) (Pet. App. pp. 44a-48a.) The motion was de-

nied by order dated November 6, 1974 (Pet. App. p.

49a). On November 4, 1974, the Chamber filed a notice

of appeal from the district court’s discovery order (Pet.

App. p. 50a), and on November 6, 1974, the district

court stayed its order pending appellate review (Pet.

App. p. 49a).

B. The Decision of the Court of Appeals

The court of appeals concluded it had no jurisdic-

tion under 28 U.S.C. § 1291 to hear an appeal of a

discovery order, and suggested that the Chamber ‘‘can

obtain effective review ... by failing to comply with

the order and perfecting an appeal shouid the district

court impose [contempt] sanctions under Rule 37(b)

F.R.C.P.”’ (Pet. App. p. 5a). With respect to the

Chamber’s reliance upon the All Writs Act (28

U.S.C. §1651(a)) as a basis for jurisdiction, the

court ruled that the Chamber ‘‘failed to meet its

burden of showing extraordinary circumstances which

would entitle it to [a writ of] mandamus’’. (Pet.

App. p. 6a).

REASONS FOR GRANTING THE WRIT

L The Court Must Resolve The Dilemma Which The District

Court’s Discovery Order Places All Associations Who En-

gage In Litigation On Behalf Of Their Members.

A writ of certiorari is warranted to decide whether

an association must forfeit the First Amendment rights

of its members to support anonomously association lit-

igation whenever the association institutes litigation

on behalf of its injured but unidentified members. To

institute litigation an association must allege injury to

itself or at least one of its members. Warth v. Seldin,

— US. —, 95 S.Ct. 2197, 2213 (1975); Sierra Club v.

Morton, 405 U.S. 727, 735 (1972) ; NAACP v. Alabama,

3597 U.S. 449, 458-60 (1958). Here, the Chamber al-

leged the injury of its member Dow and that of its

other Michigan members who subsidize Michigan’s pay-

ments to striking employees (Pet. App. p. 13a). The

district court held that by pleading the injury of these

Michigan members, the Chamber waived any First

Amendment privilege which might bar disclosure. This

ruling constitutes a substantial abridgement of the

rights of all associations to engage in interest litigation

on behalf of their anonmous members. All member-

ship associations are now required to choose between

disclosing the identities of their members in order to

establish standing or forego entirely initiating any

litigation. This imposed choice between litigation or

membership anonymity restrains fundamental free-

dom of association rights and conflicts with the rulings

of this Court.

The Court has consistently recognized that the right

of freedom of association guaranteed by the First

Amendment protects the anonymity of persons who

associate together to advance common interests or com-

mon causes which they espouse. NAACP vy. Alabama,

supra, 357 U..S at 462; Gibson v. The Florida Legisla-

tive Investigative Committee, 372 U.S. 539 (1963);

Bates v. City of Little Rock, 361 U.S. 516 (1960). This

constitutional right specifically includes advancement

of commonly held views and social goals through liti-

gation. United Trans. Union v. State Bar of Michigan,

401 U.S. 516, 585-86 (1971). This essential means of

promoting goals and securing objectives depends upon

the support of individual members. Unless anonymity

can be guaranteed, such support is likely to cease en-

tirely, particularly where the association espouses un-

popular and controversial beliefs. NAACP v. Alabama,

supra, 357 U.S. at 459; Bursey v. United States, 466

F.2d 1059, 1085 (9th Cir. 1972). Identification, particu-

larly by a historical adversary, has a ‘‘chilling”’ effect °

upon the willingness of the member to continue to es-

pouse association goals. This is so because identification

places the member in a highly visible position, which,

in turn, renders the member subject to the risk of var-

ious forms of retaliatory pressures.* As a three judge

panel of the United States District Court for the Dis-

trict of Columbia recently remarked:

‘“<Ti]t is well established that the requirements of

public disclosure and reporting of membership lists

east a chilling effect upon an individual’s right to

associate freely and to voice personal views through

organizational ties.’”? American Civil Liberties

Union v. Jennings, 366 F. Supp. 1041, 1055 (1973),

appeal pending sub nom Staats v. ACLU, (Sup.Ct.

No. 73-1413)

®°Cf. Textile Wkrs. v. Darlington Mfg. Co., 380 U.S. 263, 275

(1965).

®In view of the commonly recognized antagonisms which exist

between the Chamber and organized labor, individual Chamber

members may well be foreclosed from supporting or remaining

members in their association if their identities can be discovered

by any labor organization during litigation. The fear of reprisals

from labor organizations whether or not actually realized, is very

likely to result in termination of membership in the Chamber,

deter potential members from joining, and prevent altogether the

continuation of many forms of associational litigation.

To be sure these authorities involve associations com-

posed of natural persons. The Chamber’s membership

embraces corporations, partnerships and other forms

of business organizations as well as individuals. This

difference does not mean that a corporate membership

association can be denied all First Amendment protec-

tion. It has long been held that corporations are per-

sons within the meaning of the Fifth and Fourteenth

Amendments. While the question has not been squarely

decided, the Court has at least suggested that corpora-

tions are also entitled to exercise First Amendment

rights. Grosjean vy. American Press Co., 297 U.S. 233,

243-44 (1935); May Dept. Stores v. Labor Board, 326

U.S. 376, 404 (1945) (Rutledge, J. concurring in part).

These authorities raise at least a colorable claim of

First Amendment protection here. And such protection

including freedom of association should be accorded

because corporate association members are potentially

subject to the same liklihood of retaliation and pres-

sure because of positions advocated as natural persons

associations like the NAACP.”

1 Tf the Court is of a different opinion, this issue presents an-

other important question which warrants immediate review. This

Court has recently relaxed the standing requirements which asso-

ciations must meet in order to have access to the courts. Warth

v. Seldin, supra. See also Sierra Club v. Morton, 405 U.S. 727

(1972). The future promises more association type litigation and

accordingly, it is now timely to resolve the scope of First Amend-

ment rights available to all associations, regardless of the nature of

their members.

The courts below did not rule on this question, because they

believed it unnecessary. It is nevertheless properly before the

Court and should be decided so as to fully resolve the Chamber’s

assertion of a constitutional privilege to the confidentiality of the

membership list. See Golden State Bottling Co. v. NLRB, 414 US.

168, 186 (1973) ; Schlagenhauf v. Holder, 379 U.S. 104, 111, 112

(1964).

The holding below that such a basic right can be

waived by simply initiating litigation is also contrary

to the Court’s ruling in Schlagenhauf v. Holder, 379

U.S. 104 (1964). The Court, speaking through Mr. Jus-

tice Goldberg, specifically rejected early state court

cases apparently holding that a litigant who initiates a

legal proceeding to recover monetary compensation for

personal injuries waives any right ‘‘to claim the in-

violability of his person.’’ 379 U.S. at 113. Instead, the

Court suggested there would be ‘‘constitutional prob-

lems’’ with any rule holding that a litigant can be said

to waive rights ‘‘by exercising his right of access to the

federal courts.’’ 379 U.S. at 114. Here, the district court

relied upon the Chamber’s suit on behalf of its Michi-

gan member employers to hold that the Chamber had

waived any constitutional claim supporting nondisclo-

sure (Pet. App. p. 37a). Because disclosure strikes at

the heart of the Chamber’s ability to function as the

representative of all its members, this ruling penalizes

the Chamber’s right of access to the federal courts t»

the same extent as a rule holding that a plaintiff in a

negligence suit waives any right to assert protections

against search and seizure of his person. Accordingly,

the district court’s ruling constitutes an improper ex-

tension to the federal courts of the state court cases

previously rejected by the Court in Schlagenhauf v.

Holder, supra, and review should be granted to prevent

this develoyment.

There could be circumstances where the identity of

an association’s members is properly subject to the

disclosure provisions of the Federal Rules of Civil Pro-

cedure. However, this is not the situation here. The

identity of the Chamber’s Michigan members is irrele-

vant to the preemption issues posed by the underlying

litigation. As this Court stated in Super Tire Engineer-

ing Vv. McCorkle, 416 U.S. 115, 124 (1974):

It cannot be doubted that the availability of state

welfare assistance for striking workers. . . per-

vades every work stoppage, affects every existing

collective-bargaining agreement, and is a factor

lurking in the background of every incipient labor

contract. (Emphasis added)

Accord: Grinnell Corp. v. Hackett, 475 F.2d 449, 458-

59 (1st Cir.), cert. denied, 414 U.S. 859 (1973). Wheth-

er any Michigan member of the Chamber other than

Dow suffered strikes is irrelevant under this legal

standard since the cumulative effect of all strikes upon

all employers regardless of any membership association

determines the underlying federal preemption issue

raised by this litigation. The identity of all Michigan

employers who have been subjected to strikes is readily

available from the Michigan Employment Security

Commission which also maintaines records of strike

duration and the amounts of funds dispersed to striking

employees. Thus, the Steelworkers have a comprehen-

sive administrative source for all data relevant to the

defense of this suit. As the Court noted in Schlagen-

hauf v. Holder, supra, 379 U.S. at 118: ‘‘The ability of

the movant to obtain the desired information by other

means if also relevant.’’™

And in Warth v. Seldin, supra, the Court precluded

the Steelworkers from using the identity of the Cham-

ber’s Michigan members to challenge the Chamber’s

standing to initiate this litigation. Writing for the ma-

jority, Mr. Justice Powell stated (95 S.Ct. at 2211-12) ;

11Jn the Grinnell litigation this same information is available

to the Steelworkers from the Rhode Island Department of Em-

ployment Security.

= on nt otal

Even in the absence of injury to itself, an associ-

ation may have standing solely as the representa-

tive of its members. (Citing National Motor

Freight Traffic Assn. v. U.S., 372 U.S. 246 (1963) )

... The association must allege that its members,

or any one of them, are suffering immediate or

threatened injury as a result of the challenged ac-

tion of the sort that would make out a justiciable

ease had the members themselves brought suit.

(Citing Sierra Club v. Morton, supra). So long as

this can be established and so long as the nature

of the claim and of the relief sought does not make

the individual participation of each injured party

indispensable to proper resolution of the cause, the

association may be an appropriate representative

of its members, entitled to invoke the courts juris-

diction.

Accordingly, this decision makes clear that no addi-

tional disclosure of the identities of any Chamber mem-

bers is necessary to establish the Chamber’s standing

to initiate the underlying cause of action. This is not

a cause then where the identities of the Chamber’s

Michigan members are of any relevance to the issues

posed.

In short, the ruling below poses a critical dilemma

for associations which wish to exercise their right to

engage in representational litigation. All associations

may now be required to identify their members in order

to accomplish the litigative purposes for which the

members sought anonymously to ban together. This

Court should grant certiorari to review this question

and to define the circumstances, if any, where disclo-

sure of association membership lists may be appropri-

ate in civil litigation.”

12 This petition is unlike the one in Auto Workers v. National

Right to Work Legal Def. and Ed. Foundation, 376 F. Supp.

1060 (D.D.C. 1974), appeal dismissed, F.2d , 88 LRRM

2314 (D.C. Cir. 1974), cert. denied, 419 U.S. 1132, where an ‘‘over-

a! Nene aa ee

II. There Must Be An Appeal Route Other Than Contempt To

Obtain Judicial Review Of A-Pre-Trial Order Where That

Order As A Practical Matter Determines The Validity Of A

Claim of Constitutional Immunity.

Before the significant and timely First Amendment

question presented by this petition can be reached, the

Court must consider an equally important threshold

problem which also requires resolution. The court of

appeals’ judgment was that in these circumstances

neither a writ of mandamus nor an appeal under 28

U.S.C, § 1291 will lie (Pet. App. pp. 5a-6a). The Cham-

ber’s certiorari petition presents the Court with an

overdue opportunity ‘‘to derive a formula that will take

hardship cases out from under the rigidity of previous

declarations. ...’’ (Dickinson v. Petroleum Conversion

Corp., 338 U.S. 507, 511 (1949) ) with respect to imme-

diate appeals from discovery orders where disclosure

impinges upon constitutional rights and results in in-

jury to a nationwide class of litigants. It is essential to

our judicial system that all litigants have immediate

access to the appellate courts to obtain effective review

of constitutional questions which threaten interests far

beyond the underlying litigation. As Chief Judge

Haynsworth wrote in United States v. Hemphill, 369

F.2d 539, 543 (4th Cir. 1966) :

riding and compelling need’’ going to the heart of the litigation was

shown for the production of the Foundation’s financial subscribers.

There. the central allegation of the unions’ action was that the

Foundation had violated 29 U.S.C. §411(a) (4) by acting as a

conduit for ‘‘interested employers’’ financing litigation against

various labor organizations, to which the subseribers’ list was an

essential element of proof.

)

;

When a pretrial order is clearly erroneous, an

appellate corrective ought to be available if com-

pliance with the otder would work a substantial

and irreparable deprivation or if the only alterna-

tive is submission to a contempt order.

A. 28 U.S.C. § 1291 authorizes an immediate appeal from pretrial

orders without the necessity of a contempt citation

The Cohen ™ doctrine plainly contemplates immedi-

ate access by parties to the appellate courts where in-

terlocutory orders raise important questions which

transcend the particular issues in the underlying liti-

gation. In Cohen, the Court stressed the importance of

the issue it was called upon to decide:

‘‘? W]e do not mean that every order fixing secur-

ity is subject to appeal. Here it is the right to se-

curity that presents a serious and unsettled ques-

tion. If the right were admitted or clear and the

order involved only an exercise of discretion as to

the amount of security . . . appealability would

presents a different question.’’ 337 U.S. at 547.

Similarly here, as set forth above, the dilemma which

the instant discovery order poses fur associations every-

where is an important and significant question which

requires immediate resolution. To be sure the circuit

courts of appeals agree the usual garden variety dis-

covery order is not a ‘‘final order’’ within the scope of

98 U.S.C. § 1291. Wright & Miller, Federal Practice &

Procedure: Civil § 2006. However, there is a split in the

circuits with respect to the immediate appealability of

interlocutory discovery orders under this provision

13 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)

(collateral issues which raise important questions are immediately

appealable under 28 U.S.C. § 1291).

where third party rights are affected. See Covey Oil Co.

v. Continental Oil Co., 340 F.2d 993, 996 (10th Cir.),

cert. denied, 380 U.S. 964 (1965). Here, the parties ac-

tually injured by the district court’s discovery order

are the Chamber’s Michigan members who are not par-

ties to this litigation. These members could not initiate

an appeal of the discovery order without simultaneously

revealing their identity and thereby mooting the appeal.

NAACP vy. Alabama, supra, 357 U.S. at 459; ef. Preiser

v. Newkirk, — U.S. —, 95 S. Ct. 2330 (U.S. No. 74-

107) (June 25, 1975). Thus, only the Chamber is in a

position to perfect such an appeal on behalf of its Mich-

igan members. An association must be able to assert the

injured interests of its members particularly where, as

here, the injury goes to the loss of anonymity and the

membership is unable by operation of legal doctrines

like mootness to assert its own injury.

In addition, this case is not the usual discovery order

appeal where the discovered party simply objects to

providing its opponent with information which might

reveal tactical trial strategy. The theory of the under-

lying litigation and the expert studies which support

the Chamber’s position that state compensation for

strikers is contrary to national labor policy is fully

known to the Steelworkers from other discovery re-

quests voluntarily complied with by the Chamber in this

litigation. Moreover, the consequences of discovery

here are not, as in the usual case, limited to the trial

of the instant litigation. The relationship between the

Chamber and its members is designed to be a perma-

nent and continuing one. Discovery here threatens to

sever these long-term relationships, and will have an

adverse impact upon the right of corporate memhers to

associate for the purpose of initiating common interest

litigation long after this particular litigation is over.

;

In these unique circumstances, the authorities referred

to above holding discovery orders non-appealable are

readily distinguishable and the appealability question

presented here is of significance to associations every-

where and one this Court has not previously ad-

dressed.“

The Court of Appeals ruled that the Chamber could

perfect appeal of this important question by simply

submitting to a contempt citation. However, the con-

tempt route is not an assured means of perfecting an

immediate appeal because a civil contempt citation is

insufficient to permit appeal until the trial litigation

concludes. For v. Capital Co., 299 U.S. 105 (1936) ;

cf. Sibbach v. Wilson & Co., 312 U.S. 1,6-7 (1941);

Southern Ry. Co. v. Lanaham, 408 F.2d 348, 350 (5th

Cir. 1969) (C. J. Brown, dissenting). As the First Cir-

cuit candidly recognized in Chamber of Commerce v.

Hackett, (Grinnell Pet. App. 7a) : ‘‘ Admittedly, there is

less certainty as te whether an order adjudicating a

Even within the present scope of the Cohen doctrine, the

Chamber is entitled to an immediate appeal under this ‘‘col-

lateral order doctrine.’’ For the reasons set forth supra, pp.

11-13, there is no connection between the identity of the Cham-

ber’s Michigan members and the legality of state payments to

strikers under national labor policy. As we have also demon-

strated above, contempt is not a viable alternative to an immedi-

ate appeal under 28 U.S.C. § 1291, and thus there is a great

likelihood that any effective judicial review of this wholly col-

lateral question will be irretrievably lost. Finally, the question of

whether a membership association can be required to disclose the

identities of its membership as a condition of engaging in asso-

ciational litigation is ‘‘too important to be denied review.’’ Cohen

v. Beneficial Indus. Loan Corp., supra, 337 U.S. at 546. Since

the Chamber’s appeal fully satisfies a!l the elements for an im-

mediate appeal, the court of appeals erred in dismissing this cause

for lack of jurisdiction.

party in civil contempt would be appealable.’’ More-

over, there is a difference of option among the circuits

as to whether any type of contempt order is a prerequi-

site to appeal. Compare United States v. Hemphill,

supra; and Covey Oil Co. v. Continental Oil Co., 340

F.2d 993 (10th Cir.) cert. denied, 380 U.S. 964 (1965)

with Bank Line v. United States, 163 F.2d 133 (2d Cir.

1947) ; Gialde v. Time, Inc., 480 F.2d 1295 (8th Cir.

1973) ; and the opinions of the Sixth and First Circuits

appealed here.

The contempt process is lengthy and time consuming

as well as uncertain. The resisting party must first be

found guilty of criminal contempt and then must par-

ticipate in a separate contempt proceeding and be cited

with a contempt judgment before any putative appeal

is available. Fraser vy. United States Court, 145 F.2d

139, 144 (6th Cir. 1944), cert. denied, 324 U.S. 849

(1945). But such a proceeding may not actually pro-

vide any basis for appeal. See, ¢.9., United States v.

IBM Corp., 492 F.2d 112 (2d Cir. 1973), cert. denied,

416 U.S. 995 (1974). A contempt citation then does not

guarantee appealability of a discovery order. And re-

quiring an aggrieved party even to risk contempt sane-

tions in order to obtain review with respect to a claim

of First Amendment rights, itself creates a chilling

effect, for many litigants may well choose to forebear

from exercising such rights, rather than risk the pen-

alties of fine or incarceration. Moreover, in association

litigation, a criminal contempt citation places the bur-

dent of compliance not upon the member whose associ-

ation identity is about to be disclosed, but upon an

officer of the association whose right of association is

unaffected by the discovery order. Accordingly, the

court of appeals erred both in declining to accept juris-

————

diction and by remitting the Chamber to an appeal

route which may be entirely illusory.”

B. A Writ of Mandamus is appropriate to obtain review of a

discovery order which impairs the free exercise of First

Amendment Rights.

If an immediate appeal does not lie under the

collateral order doctrine, a writ of mandamus is

appropriate to review an order which impinges upon

the exercise of fundamental rights. Indeed, the Court

has already expressed its interest in resolving the

role of mandamus as a means of obtaining immediate

appellate review of a discovery order in similar cir-

cumstances.

On May 27, 1975, the Court granted a petition

for a Writ of Certiorari to the Ninth Circuit in

Kerr v. U.S. District Court, U.S.

95 S. Ct. 1988 (U.S. No. 74-1023). In Kerr, as the

Chamber contends here, California argues that some

procedure for review must be available in circum-

stances where pre-trial discovery orders threaten ir-

reparable harm to important third party interests.

There, the underlying litigation involved a class action

against California penal and correctional agencies to

determine the due process requirements at state parole

and disciplinary proceedings. Plaintiffs obtained a

discovery order which, inter alia, required production

" Normally an immediate appeal lies after imposition of the

other contempt sanctions permissible under Rule 37 Fed. R. Civ.

Pro. See pp. 3-4, supra. However, sanctions such as dismissal of

the suit or striking defenses effectively deprive the Chamber of

participation in the underlying litigation while an appeal is per-

fected, argued and ultimately decided. Thus, these sanctions oper-

ate just as the district court's discovery order to deny the Cham-

ber the right on behalf of its members of instituting litigation on

behalf of its membership.

of the correctional files of over 1,000 California cor-

rectional facility inmates. The district court’s pro-

tective order limited inspection of the inmates’ files

to plaintiff’s counsel, limiiod the use of the files to

the case at hand, and required inmates’ consent be-

fore inspection of their files. Because this protective

provision was inadequate, California sought a writ of

mandamus to review the discovery order, which the

Ninth Cireuit dismissed on jurisdictional grounds.

In the instant litigation the district court’s dis-

covery order is also inadequate to prevent widespread

disclosure of the identities of the Chamber’s Michigan

members and the fact of such disclosure reasonably

interferes with important associational rights. As set

forth, supra, p. 6, the district court’s ‘‘protective’’

order grants access to the Chamber’s Michigan member-

ship list to any and all Steelworkers’ employees who

‘*prepare for and assist in the defense of this action.”’

Even assuming that the employees, who receive copies

of this list, have at least some tangential relationship

to this case, it is totally unreasonable and contrary to

human nature to expect this knowledge to disappear

from memory when this litigation concludes. Steel-

workers’ cmployees and agents, having seen and

worked with these lists in connection with this case,

will not simply expunge from their memories the

names of the Chamber’s members. Instead, the identi-

ty of the Chamber’s members, and their connection

with this and other litigation brought by the Cham-

ber, will forever be exposed to the Steelworkers and

others who gain access to the membership list, in-

cluding representatives of the AFL-CIO who are also

members of the Steelworkers’ Union. Long after the

underlying litigation concludes and the district court

— a oe alltbes naa tinbire

is without jurisdiction to take any steps to enforce its

protective order, this information will remain in the

possession of a labor organization which, like most

unions, is an intractable political opponent of the

Chamber. This entreé provides an accurate laundry

list of those employers in Michigan and elsewhere

(in the case of conglomerates) ** who could be sub-

jected to punitive pressures in retaliation for their

support of the Chamber’s labor relations objectives

in future matters unrelated to the instant litigation.

A writ of mandamus should have been granted by

the court of appeals because the district court com-

mitted fundamental error by ordering disclosure of

the Chamber’s Michigan membership list and by fail-

ing to safeguard such disclosure against widespread

dissemination with an adequate protective order.

Therefore, the instant appeal presents the Court with

an important opportunity to define and elaborate the

factual and substantive areas when a writ of man-

damus in pre-trial discovery is appropriate, and will

further permit the Court to give direction to the

courts of appeals in creating more uniform man-

damus standards. See generally, Comment, ‘‘ Appeal-

ability in the Federal Courts’’, 75 Harv. L. Rev.

16 While the district court’s Memorandum Opinion purports to

limit disclosure to only those of the Chamber’s members who

are subject to the Michigan Employment Security Act, the order

also identifies Chamber members outside Michigan because many

of these members are among the nation’s larger corporations and

conglomerates with operations in numerous other states.

350, 375-78 (1961)."* Such definitive guidance is essen-

tial particularly because this Court has already em-

barked upon the task of defining a more flexible

mandamus standard. La Buy v. Howes Leather Co.,

392 U.S. 249, 255 (1957); Schlagenhauf v. Holder,

supra.

CONCLUSION

The petition for a writ of certiorari should be

granted. Respectfully submitted.

GERARD C. SMETANA,

Wiu1aM H. DuRoss, ITI,

Borovsky, SMETANA, EHRLICH &

KRONENBERG

2011 Eye Street, N.W.

Suite 800

Washington, D. C. 20006

Attorneys for the Chamber of

Commerce of the United States

RIcHARD BERMAN

Labor Relations Counsel,

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA

1615 H Street, N.W.

Washington, D. C. 20006

September, 1975

17The Eighth Circuit grants mandamus to review an interlocu-

tory discovery order which present a ‘‘really extraordinary’’

question and where appeal after disclosure would be inadequate.

Pfizer v. Lord, 456 F.2d 515, 518 (8th Cir. 1972). The Seventh

Circuit grants mandamus to review such orders where there is a

question of substantial importance and where appeal would be

inadequate. Harper and Row Publishers, Inc. v. Decker, 423 F.2d

487, 492 (7th Cir. 1970), affirmed, 400 U.S. 348 (1971) (by an

equally divided court). The Fourth Circuit allows mandamus to

review and vacate an interlocutory discovery order on the clearly

erroneous standard. United States Board of Parole v. Merhige,

487 F.2d 25 (4th Cir. 1973), cert. denied, 417 U.S. 918 (1974).

ee ee

APPENDIX

PETITIONER'S APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 75-1031

Tue Dow Cuemicat Company, Plaintiff's,

Tue CHAMBER OF CoMMERCE OF THE UNITED States oF

America, Plaintiff-Appellant,

Vv.

S. Martin Taytor, Director of the Michigan Employment

Security Commission, et al, Defendant,

Unitep STeeLworkers or America, AFL-CIO-CLC,

Intervenor-A ppellee.

Appeal from the United States District Court for the

Eastern District of Michigan.

Opinion of the Court

Decided and Filed July 1, 1975.

Before: Weick, Lrve.y and Enoet, Circuit Judges.

Encet, C.J. Appellant Chamber of Commerce of America

(Chamber) and Dow Chemical Company (Dow) instituted

this action in the district court on July 25, 1972 against the

individual members of the Michigan Employment Security

Commission (MESC) for a declaratory judgment and an

injunction against enforcement of the Michigan Employ-

ment Security Act to the extent it is construed to authorize

payment of unemployment benefits to striking employees.

On September 5, 1972, United Steelworkers of America,

AFL-CIO (Steelworkers) was granted leave to intervene

as a defendant to protect the interests of their members

who are employees of Dow. The complaint alleged that

such payments contravene the nation’s labor policy by

disrupting the scheme of free collective bargaining and

are thus in violation of the Supremacy Clause of Article

VI of the Constitution.

In the course of pretrial discovery, the Steelworkers

served upon the Chamber several interrogatories, including

Interrogatory Number 1 which reads:

1. List the name, principal office address and Michi-

gan address of each ‘‘underlying’’ member business

firm of the Chamber who is now or who at any time

since January 1, 1968 has been an employer subject

to the Michigan Employment Security Act, 12 M.S.A.

§ 17.501, et seq. (hereafter ‘‘MESA”’).

The Chamber filed objections to several of the interroga-

tories, particularly Number 1. It claimed that the Cham-

ber’s members enjoy a First Amendment freedom of asso-

ciation which will be ‘‘chilled’’ if the Chamber is required

to turn over a membership list to the Steelworkers and

that irreparable injury will occur upon disclosure. The

Chamber further claims that its members’ identities are of

no relevance to the action and are not needed by the

Steelworkers.

On October 8, 1974, the district court ordered the Cham-

ber to answer Interrogatory No. 1 and on November 4,

1974, the Chamber filed a notice of appeal. No certification

under 28 U.S.C. § 1292(b) was issued by the district judge.

The Chamber here has alleged two alternative bases for

this court’s jurisdiction to hear its appeal.’ Its main con-

tention is that the district court order was a “final deci-

‘sion’? and thus appealable under 28 U.S.C. §1291.? In

1The steelworkers filed a motion to dismiss the appeal on the

crounds that this court lacked jurisdiction to review the district

court order. By order of March 4, 1975, that motion was denied

without prejudice, the court noting that the appealability ques-

tion could be reviewed by the panel to which the appeal is

assigned for argument.

228 U.S.C. § 1291 provides:

The courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the United

States, the United States District Court for the District of

Cobbledick v. United States, 309 U.S. 323 (1940), the Su-

preme Court discussed the requirement, now embodied in

§ 1291, that a district court decision be final before it

becomes appealable.

For purposes of appellate procedure, finality—the idea

underlying ‘final judgments and decrees’ in the Ju-

diciary Act of 1789 and now expressed by ‘final deci-

sions’ in § 128 of the Judicial Code—is not a technical

concept of temporal or physical termination. It is the

means for achieving a healthy legal system. As an

instrument to such policy the requirement of finality

will be enforced not only against a party to the liti-

gation but against a witness who is a stranger to the

main proceeding. Neither a party nor a non-party

witness will be allowed to take to the upper court a

ruling where the result of review will be ‘to halt in

the orderly progress of a cause and consider inci-

dentally a question which has happened to cross the

path of such litigation . . .’ 209 U.S. at 326.

In Catlin v. United States, 324 U.S. 229 (1945), the court

further noted that ‘‘A’’ ‘final decision’ generally is one

which ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment.” 324 U.S.

at 233.

It is clear that the order here appended from does not

terminate the litigation. Appellant contends, however, that

under the ‘‘collateral order doctrine’’ enunciated in Cohen

v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949),

this order is appealable under § 1291 because it falls within

the small class of orders ‘‘. . . . which finally determine

claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied review

and too independent of the cause itself to require that

appellate consideration be deferred until the whole case

is adjudicated.’’ 337 U.S. at 546.

the Canal Zone, the District Court of Guam, and the District

Court of the Virgin Islands, except where a direct review

may be had in the Supreme Court.

Several courts of appeals have considered the question

of whether a discovery order is appealable under the **eol-

lateral order doctrine’’ of Cohen, supra. Most circuit courts

which have considered the question have rejected the ap-

plicability of Cohen to discovery orders. Gialde v. Time,

Inc., 480 F. 2d 1295 (8th Cir. 1973), Borden Company Vv.

Sylk, 410 F. 2d 843 (3rd Cir. 1969), American Express

Warehousing, Ltd. v. Transamerica Ins. Co., 380 F. 2d

977 (2nd Cir. 1976), Paramount Film Distributing Corp.

v. Civic Center Theatre, 333 F. 2d 358 (10th Cir. 1964).

We follow these cases and hold that the district court’s

discovery order is not appealable as a final decision under

§ 1291. To accept appellant’s view that such discovery

order are appealable would ‘‘. . . invite the inundation

of appellate dockets with what have heretofore been re-

garded as nanappealable matters.’’ Borden Company Vv.

Sylk, 410 F. 2d 843, 846. We decline to do so.

Nothing in our decision here is inconsistent with this

court’s decision in Ochsner v. Millis, 382 F. 2d 618 (6th

Cir. 1967). In Ochsner, an interference proceeding was

being conducted in the United States Patent Officer. For

use in the interference proceeding, the junior parties took

the deposition of the senior party, who refused to answer

certain questions propounded to him. The junior parties

filed a motion in the district court to compel the testimony,

but the motion was denied.

This court in Ochsner held the district court order ap-

pealable under § 1291. The court reasoned that the junior

parties had no other means of obtaining effective review

of the action of the district court. The court noted that

review in the Court of Customs and Patent Appeals pur-

suant to 35 U.S.C. 4141 would be ineffective because no

additional evidence could be put into the record, and there-

fore the testimony which the junior parties were attempt-

ing to procure could not be put into the record in that

appeal. Alternatively, if an appeal were taken pursuant to

35 U.S.C. § 146 to the district court where additional testi-

mony could be taken, this advantage would be counterbal-

anced to some extent by the presumption of administra-

tive correctness. Thus, the court concluded, the action of

the district court was ‘‘. . . a final decision for all prac-

tical purposes, for if it be error, this is the only oppor-

tunity which the junior parties will have to effectively

review the District Court’s order.’’ 382 F. 2d at 623.

We are not faced with that situation here. Unlike the

appellants in Ochsner, appellant here can obtain effective

review of the district court order by failing to comply

with the order and perfecting an appeal should the district

court impose sanctions under Rule 37(b) of the Federal

Rules of Civil Procedure. In United States v. Ryan, 402

U.S. 530 (1971), the Supreme Court faced a similar ques-

tion where a person sought review of a district court order

requiring that he produce records before a federal grand

jury. In holding that the order was non-appealable, the

Supreme Court stated:

But compliance is not the only course open to respond-

ent. If, as he claims, the subpoena is unduly burden-

some or otherwise unlawful, he may refuse to comply

and litigate those questions in the event that contempt

or similar proceedings are brought against him.

Should his contentions be rejected at that time by the

trial court, they will then be ripe for appellate re-

view.

402 U.S. at 532 (footnote omitted)

Ryan involved production of documents before a federal

grand jury, but we think the reasoning of ..e Court is

applicable here. Should the Chamber refuse to obey the

order and sanctions are applied, review of the order may

be obtained. In the present posture of this case, however,

we conclude we have no jurisdiction under 28 U.S.C. § 1291

to hear this appeal.

Appellant also contends that this court has jurisdiction

to he.r this appeal under the All Writs Act, 28 U.S.C.

§ 1651(a). We note that the record does not reveal that

the appellant has filed with the clerk of this court proof of

the mandamus petition upon the district court judge as

required by Federal Rules of Appellate Procedure 21(a).

We also note that the petition was not filed until some four

months after the entry of the order appealed from, which

might in itself be grounds for dismissal of the appeal. Cf.

In Re United Shoe Machinery Corporation, 276 F. 2d 77

(1st Cir. 1960). We need not decide whether these pro-

cedural deficiencies are grounds for dismissal, however,

since we conclude that appellant has failed to meet its

burden of showing extraordinary circumstances which

would entitle it to mandamus.

The appeal is dismissed for lack of appellate jurisdic-

tion. Costs to appellees.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil Action No. 38644

Tue Dow Cuemicat Company and

Tue CHAMBER oF COMMERCE OF

Tue Untrep States or AMERICA,

Plaintiffs,

Vv.

S. Martix Taytor, Director of the Michigan

Employment Security Commission, et al.,

Defendants,

AND

Unrrep STEELWoRKERS oF AMERICA, AFL-CIO-CLC,

Intervenor.

Order Compelling Plaintiffs To Answer Interrogatories

This court having heretofore filed its Memorandum

Opinion herein under date of June 27, 1974, and having

been made acquainted with the contention of the parties

regarding the phrasing of an order compelling discovery

and being fully advised,

Ir Is Ornperep that:

A. Plaintiff The Dow Chemical Company answer un-

der oath, within thirty (30) days from the date of this

order, Interrogatories Nos. 1, 2, 3, 4, 5, 6, 8, 9 and 10 of

the Revised Amended Interrogatories previously served

by defendant-intervenor.

B. Plaintiff The Chamber of Commerce of the United

States of America answer under oath, within thirty (30)

days from the date of this order, Interrogatories Nos. 1,

2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21

and 22 of the Revised Amended Interrogatories previously

served by defendant-intervenor.

C. Plaintiff The Chamber of Commerce of the United

States of America need not answer Interrogatory No. 9

of the Revised Amended Interrogatories unless and until

this case reaches the United States Supreme Court.

D. Defendant-intervenor United Steelworkers of Amer-

ica, AFL-CIO-CLC shall not make use of the list of mem-

ber business firms which plaintiff The Chamber of Com-

merce of the United States of America must provide in

its answer to Interrogatory No. 1 of the Revised Amended

Interrogatories or disclosure the identity of such member

business firms except to defendant-intervenor United Steel-

workers of America, AFL-CIO-CLC’s employees and then

only when necessary to prepare for and assist in the de-

fense of this action.

/s/ Jonn FEtIrKENS

John Feikens

United States District Judge

Dated: Detroit, Michigan, October 4, 1974.

OS NN

he een ee oe - 7

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 75-1031

Tue Dow Cuemicat Company,

Plaintiff,

Tue CHAMBER oF COMMERCE OF

Tue Unrrep Srates or AMERICA,

Plaintifj-Appellant,

S. Martin Tayzor, Director of the Michigan

Employn nt Security Commission, et al.,

Defendant,

Unitep STeeLworkers or AMERICA, AFL-CIO-CLC,

Intervenor-Appellee.

Before: Weick, Livery and Encet, Circuit Judges.

Judgment

(Filed July 1, 1975)

AppeaL from the United States District Court for the

Eastern District of Michigan.

Tuis Cause came on to be heard on the record from the

United States District Court for the Eastern District of

Michigan and was argued by counsel.

Own ConsmperaTion Wuenreor, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be and the same hereby dismissed

for lack of appellate jurisdiction.

Costs to appellees.

Ewnterep By Orper or THE Court.

Joun P. Henman, Clerk

By /s/ Grace Keiuer

Grace Keller

Chief Deputy

10a

Order

(Filed August 21, 1975)

(Caption Omitted in Printing)

Before: Weick, Livety and Encet, Circuit Judges.

No judge in regular active service of the court having

requested a vote on the suggestion for a rehearing en

bane, the petition for rehearing filed herein by the plain-

tiff-appellant has been referred to the panel which heard

the original appeal. Upon consideration of said petition,

the court concludes that it is without merit.

Accordingly, the petition for rehearing is hereby denied.

ENTERED By ORDER oF THE CoURT

/s/ Joun P. Henman

John P. Hehman

lla

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

C.A. 38844

Tue Dow Cuemican Company and

THe CHAMBER or COMMERCE OF THE

Unitep States or America,

Plaintiffs,

Vv.

S. Martin Tayzor, Director of the Michigan Security Com-

mission, and Wa.trer CampBety, Frank C. PADZIEsKI,

Atex Fuuuer, Raymonp M. Lyons and Barry Brown,

Members of the Michigan Employment Security Com-

mission,

Defendants.

Complaint for Declaratory Judgment and Injunction

Tue Dow Cuemica, Company (hereafter ‘‘Dow’’) and

Tue CuamsBer or Commerce or tHe Unitep States or

America (hereafter ‘‘the Chamber’’), by their attorneys,

for their complaint against S. Marri TayLor, WaLrTer

CAMPBELL, Frank C. Papziesxr, ALEX Futter, RaymMonp

M. Lyons and Barry Browy, Defendants, allege as follows:

I. Intropuctory STaTEMENT

Dow, and the Chamber on behalf of its Michigan mem-

ber-employers, seek to have this Court declare invalid and

enjoin the application of the Michigan Employment Secur-

ity Act, 12 M.S.A. § 17.051 et. seq. (hereafter ‘*MESA’”’),

insofar as unemployment benefits thereunder are provided

to striking employees. Such an application of MESA, as

applied herein to striking employees of Dow, violates the

Supremacy Clause of Article VI, Clause 2 of the United

States Constitution as repugnant to and preempted by the

Labor Management Relations Act of 1947, as amended, 29

12a

U.S.C. § 151 et. seq. (hereafter ‘‘LMRA’’). Furthermore,

since under MESA the benefits paid to such striking em-

ployees are directly charged against the account of their

employer for the purposes of calculating the employer’s

future unemployment benefit contributions, said applica-

tion of MESA thereby penalizes such employers by reason

of their employees’ strike and thus contravenes the Due

Process Clause of Amendment XIV, Section 1 of the United

States Constitution.

II. Jurispicrion

This Court has original jurisdiction of this action under

28 U.S.C. § 1331, 28 U.S.C. § 1337, and the Federal Dec-

laratory Judgment Act, as amended, 28 U.S.C. §§ 2201-02.

III. Piarntirrs

1. Dow is a domestic corporation organized and exist-

ing under and by virtue of the laws of the State of Dela-

ware and at all times mentioned herein has been and is

qualified to do business in the State of Michigan with

offices and plants located in the State of Michigan. Dow

is an employer subject to ESA and is, therefore, required

to make contributions to the Michigan Employment Secur-

ity Commission (hereafter ‘‘Commission’’). Dow is also

an employer subject to LMRA and obligated thereunder

to bargain collectively with the bargaining representative

of its employees.

2. The Chamber is an association, with its principal

office in Washington, D.C., consisting of a membership of

over 3,700 state and local chambers of commerce and

trade and professional associations, a direct business mem-

bership in excess of 38,000, and underlying membership

of approximately 5,000,000 business firms and individuals

of which a substantial number are employers subject to

MESA and, therefore, required to make contributions to

the Commission, as well as employers subject to LMRA

oe ea

13a

and obligated thereunder to bargain collectively with the

bargaining representative of their employees. The Cham-

ber brings this action on behalf of said Michigan member-

employers.

IV. DEFENDANTS

1. Defendant S. Martin Taylor is the Director of and

an Ex Officio Member of the Commission, and Defendants

Walter Campbell, Frank C. Padzieski, Alex Fuller, Ray-

mond M. Lyons and Barry Brown are Members of the

Commission. The Commission has its principal office and

place of business at 7310 Woodward Avenue, Detroit,

Michigan 48202.

2. The above-named Defendants are charged under the

laws of the State of Michigan with the enforcement, op-

eration and execution of MESA, and have applied MESA

so as to provide unemployment benefits to striking employ-

ees and to charge such benefits against the accounts of

the employers involved, an application of MESA which is

herein challenged as being in conflict with the Constitution

of the United States.

V. Factuat ALLEGATIONS

1. Since on or about February 6, 1972, approximately

166 employees of Dow (hereafter ‘‘striking employees’’)

have been engaged in a strike against Dow and, as a result

of said labor dispute, have not worked for Dow since that

date.

2. On or about February 8, 1972, and at various dates

thereafter, approximately 130 of the striking employees

applied at various branch offices of the Commission for

unemployment benefits under MESA. Pursuant to Section

29(8) of MESA, which provides inter alia that « [a]n in-

dividual shall be disqualified for benefits for any week with

respect to which his total or partial employment is due

to a labor dispute in active progress .. .’’, the striking em-

l4a

ployees were declared ineligible for benefits for the week

ending February 12, 1972, and for each succeeding week

that their unemployment was due to a labor dispute.

3. Thereafter, on or about February 11, 1972 and at

various subsequent dates, the striking employees described

in paragraph (2) above obtained interim employment,

earned remuneration therefrom and, in each instance, were

subsequently laid off from such interim employment. The

vast majority of said striking employees did not receive

remuneration in excess of $25.00 from their interim em-

ployers nor did they work for such interim employers in

excess of eight hours. Many of the striking employees

obtained their interim employment as the result of assist-

ance from their Union, Local 14055, Allied Technical Work-

ers, including advertisements placed in various local news-

papers on or about February 22, 1972 advertising that a

number of the strikers were willing ‘‘to do any type of

work, any hours, any length of time from a few hours to

a day or more. Any wage will be considered.’’

4. Following their layoff from interim employment,

said striking employees reapplied with the various branch

offices of the Commission for unemployment benefits under

MESA. In each instance, the branch offices, acting pursuant

to the direction and under the authority of the Defendants,

held that the interim employment terminated any possible

disqualification under Section 29(8) of MESA; that the

striking employees were, accordingly, eligible for unem-

ployment benefits from that date; and that the Commis-

sion was precluded from reimposing such disqualification

after termination of the interim employment regardless

of its duration or nature.

5. After notice of such decisions, Dow immediately

notified each of the striking employees involved that ‘‘suit-

able work has been and is available now’’ for them at

Dow. None of said striking employees thereafter returned

to work at Dow. A protest to the continuation of unem-

15a

ployment benefits, as a result, was filed by Dow with the

appropriate branch offices of the Commission.

6. On or about March 21, 1972, the Commission denied

said protest on the basis that Dow’s offer of employment

was ‘‘not an offer of suitable work’’ under Subsection 29

(7)(a) of MESA since the position offered was ‘‘vacant

due directly to a strike, lockout or other labor dispute.’’

The Commission’s branch offices were instructed to notify

the striking employees and Dow that the striking employ-

ees were ‘‘not disqualified for having refused an offer of

work.’’ (emphasis the original’s),

7. Since the Commission’s actions described in para-

graphs 4 and 6 above, vouchers have been drawn on the

accounts maintained by the Commission in order to effectu-

ate the payment of unemployment benefits to the striking

employees and it is contemplated that amount of said

benefits will, pursuant to Section 17(c) of MESA, be

charged against Dow’s ‘‘rating account’? which reflects

the contribution payments and benefit charges of Dow

under MESA; unless enjoined, Defendants will (a) con-

tinue to provide unemployment benefits to striking em-

ployees on a weekly basis for at least 26 weeks with the

possibility of further extension, (b) debit commensurate

charges against Dow’s ‘‘rating account,’’ and (ec) similarly

effect the payment of unemployment benefits to employees

on strike against member-employers of the Chamber and

charge accordingly their respective ‘rating accounts.’’

8. The charges made against Dow’s **rating account,’’

or against the ‘‘rating account’ of member-empioyers of

the Chamber, by reasons of the Commission actions de-

scribed in paragraph 7 above, will adversely affect the

‘“‘rating account percentage’’ of Dow and said other em-

ployers and require, pursuant to Section 19(a)(2) of

MESA, that Dow and said other employers make increased

contribution payments to the Commission; unless enjoined,

it is contemplated that the additional payments required

16a

of Dow alone, which would not have been incurred but

for the Commission actions described in paragraph 7

above, already far exceed $10,000 and will, on an annual

basis, exceed $100,000.

9. On an average basis, without regard to the food

stamp benefits provided to striking employees under 7

U.S.C. §§ 2011 et. seq. and other forms of public assistance

which, upon information and belief, Plaintiffs believe that

the striking employees are receiving, the unemployment

benefits which Defendants are providing to the striking em-

ployees have been the equivalent of approximately 49 per

cent of said employees’ pre-strike weekly gross pay less

withheld Federal and State taxes. The average weekly

gross pay less withheld Federal and State taxes for the

striking employees for the last pay period prior to the

strike was $162.59. The average weekly unemployment

benefits provided to the striking employees by Defendants

has been $79.07. Unless enjoined, said unemployment bene-

fits will continue to constitute a substantial alternate source

of income for a substantial number of the striking employ-

ees who presently are engaged in, or who may hereafter

engage in, a strike against member-employers of the

Chamber.

10. The striking employees have continued to reject

Dow’s various offers of strike settlement as a direct result,

upon information and belief, of their knowledge that un-

employment benefits have been provided to them, and ex-

pectation that such benefits will continue to be provided

to them, by Defendants. Each week that the strike con-

tinues, Dow incurs substantial economic injury and, in

addition, faces the threat of a loss of a significant and

irreplaceable market position. Dow, and similarly-situated

member-employers of the Chamber, are also suffering and

will continue to suffer irreparable injury in that, regard-

less of the eventual outcome of this action, the collective

bargaining process will have been unalterably damaged.

Although quantifying the damage so incurred is difficult,

17a

the violation of the right to free collective bargaining, as

guaranteed to Plaintiffs and other employers as hereafter

described, creates in excess of $10,000 in damages, exclud-

ing interests and costs to Plaintiffs individually. The Plain-

tiffs have no adequate remedy at law for any of the afore-

said injuries.

11. None of the striking employees entitled to or

presently receiving unemployment benefits, and no person

so situated who hereafter may apply for or receive such

benefits, have been made parties to this action although

they may have or claim an interest in it and may be af-

fected by the outcome for the reason that they are too

numerous to be joined and timely served and that to re-

quire such joinder and service would unduly delay the

action to Plaintiffs’ irreparable injury.

VI. Fiest Cause or Action

For a first cause of action Plaintiffs allege:

1. The payment by Defendants of unemployment bene-

fits to the striking employees, and to employees on strike

against or who hereafter may engage in a strike against

member-employers of the Chamber, deprives Dow and said

member-employers of the right to engage in free collective

bargaining, without state interference or state subsidiza-

tion of one of the parties thereto, as guaranteed by the

LMRA; frustrates significantly the policies of the LMRA

by encouraging industrial strife; constitutes an unlawful

intrusion by the State of Michigan into the field of labor-

management relations which has been preempted by the

LMRA;; indirectly, but not insubstantially, requires Dow

and said member-employers to finance through their con-

tributions to the Commission strikes against themselves to

their irreparable injury; and, for all of the foregoing rea-

sons, violates the Supremacy Clause of Article VI, Clause

2 of the Constitution of the United States.

18a

2. The payment by Defendants of unemployment bene-

fits to the striking employees, and to employees on strike

against or who hereafter may engage in a strike against

member-employers of the Chamber, serves no legitimate

purpose under the police power of the State of Michigan

but, in fact, is against the public interest of the State and

its citizens because, among other things, it operates to

promote economic stagnation, increases the tax burden,

contributes to inflation, and adds to the business costs

which makes the State less competitive in attracting and

holding industries affording employment, tax revenues, and

economic well-being to the State.

VII. Seconp Cause or Action

For a second cause of action Plaintiffs allege :

» 1-2. Plaintiffs reallege and reiterate each and every

allegation set forth above in First Cause of Action.

3. Since under MESA, as described above, the pay-

ment by Defendants of unemployment benefits to the strik-

ing employees, and to employees on strike against or who

hereafter may engage in a strike against member-employ-

ers of the Chamber, are charged against the ‘rating ac-

counts’’ of said employers, such action by Defendants de-

nies entitlements to Plaintiffs without due process of law

and thereby violates the Due Process Clause of Amend-

ment XIV, Clause 1 of the Constitution of the United

States.

VIII. Prayer For Reurer

Wuererore, Plaintiffs pray that this Honorable Court:

1. En‘er a final judgment pursuant to 28 U.S.C.

9$ 2201-02 declaring that the payment by Defendants

of unemployment benefits to strikers is an unlawful

application of MESA on the grounds that it is viola-

tive of the Supremacy Clause of Article VI, Clause 2

19a

of the United States Constitution and the Due Process

Clause of Admendme* XIV, Clause 1 of the United

States Constitution;

2. Enter preliminary and permanent injunctions,

pursuant to Rule 65, F.R.C.P., enjoining Defendants,

their successors in office, agents and employees, and

all other persons in active concert and participation

with them, from authorizing the payment of unem-

ployment benefits to strikers and from drawing vouch-

ers on the accounts maintained by the Commission

in order to effectuate the payment of such benefits;

3. Enter preliminary and permanent injunction

pursuant to Rule 65, F.R.C.P., enjoining Defendants,

their successors in office, agents and employees, and

all other persons in active concert or participation with

them, from charging the *‘rating accounts’’ of Dow

or member-employers of the Chamber as the result of

the payment of unemployment benefits to strikers or

from otherwise adversely affecting said employers as

the result of the payment of such benefits ; and

4. Grant such other and further relief as this

Court shall deem appropriate.

20a

Tuomas W. Misyner

Tue Dow Cuemica, Company

2030 Dow Center

Midland, Michigan 48640

Lawrence M. Conen

Jerrrey S. GoLpMAN

Leperer, Fox anp GROVE

111 West Washington Street

Chicago, Illinois 60602

Attorneys for

The Dow Chemical Company

Mitton SMm!tH

O. F. Wenz_er

Tue CHAMBER OF COMMERCE OF THE

Unttep States oF AMERICA

1615 H Street, N.W.

Washington, D.C. 20006

Gerarp C. SMETANA

925 South Homan Avenue

Chicago, Illinois 60607

Attorneys for The Chamber of

Commerce of the United States

of America

Of Counsel:

Rosert J. Finke and

Levin, Levin, Garvetr anp Diu

1250 Penobscot Building

Detroit, Michigan 48226

2la

State oF Micuicay )

County or M1IpLanp )

The undersigned, Thomas W. Misner, being duly sworn,

deposes and says that he is one of the co-counsel for one

of the plaintiffs in the above entitled action, that he has

read the foregoing complaint, knows the contents thereof

and that said complaint is true to the best of his knowledge,

except as to matters stated therein to be alleged on in-

formation and belief, and as to those matters, he is in-

formed and believes that they are true.

) SS.

/s/ Tromas W. Misner

Thomas W. Misner

Co-counsel for

The Dow Chemical Company

(Subseription Omitted in Printing)

22a | 23a

State or Micwican ) ) ss UNITED STATES DISTRICT COURT

County or Wayne ) ; » EASTERN DISTRICT OF MICHIGAN

. SOUTHERN DIVISION

The undersigned, , being first

duly sworn, upon oath deposes and says that he is one of : Civil Action No. 38644

the co-counsel for one of the plaintiffs in the above-entitled

action, that he has read the foregoing complaint, knows |

the contents thereof and that said complaint is true, to the

Tue Dow Cuemica, Company and

THe CHAMBER oF COMMERCE OF THE

Unirep Srates or AMERICA,

best of his knowledge, except as to matters stated therein ee

: : Plaintiff's,

to be alleged on information and belief, and as to those

matters, he is informed and believes that they are true. v.

/s/ (Ste. ILLEc wie S. Martiy Tayzor, Director of the Michigan

Co-counsel for Employment Security Commission, et al.,

The Chamber of Commerce of Defendants,

the United States of America _—

(Subscription Omitted in Printing) Unirep STEELWORKERS oF AMERICA,

AFL-CIO-CLC, et al.,

Intervenors.

Interrogatories of Defendant-Intervenor United Steelworkers of

America, AFL-CIO To Plaintiff Chamber of Commerce of

The United States of America

Pursuant to Rule 33 of the Federal Rules of Civil Pro-

cedure, Defendant Intervenor United Steelworkers of

America, AFL-CIO, hereby requests that the following in-

terrogatories be answered under oath by Plaintiff Chamber

of Commerce of the United States of America or any of

its agents competent to testify on its behalf with knowl-

edge of the facts about which inquiry is made:

1. List the name, principal office address and Michigan

address of each ‘‘underlying’’ member business firm of

the Chamber of Commerce of the United States of America

(hereafter Chamber) who is now or who at any time since

January 1, 1968 has been an employer subject to the Mich-

igan Employment Security Act 12 M.S.A. $ 17.501, et seq.

(hereafter ‘‘MESA”’).

24a

2. Of the business firms named in response to Inter-

rogatory No. 1, list each one whose employees were en-

gaged in a strike in the State of Michigan at any time

during the period January 1, 1968 to April 1, 1973.

3. With respect to each employer and each strike re-

ferred to in the answer to Interrogatory No. 2, state the

following:

(a) The date the strike commenced:

(b) The date the strike terminated;

the parties, Union’s loss of bargaining agent

status;

(d) A detailed description of the employer’s last eco-

nomic offer prior to the strike, including a list of

each wage or fringe benefit components of such

offer and the cost, as computed by the employer,

of each such wage or fringe benefit component;

(e) A detailed description of the terms of the eco-

nomic settlement on which basis the strike was

terminated, including a list of each wage or fringe

benefit component of such settlement and the cost,

as computed by the employer, of each such wage

or fringe benefit component; and

(f) The name of the union which conducted the strike.

4. Of the employers referred to in the answer to Inter-

rogatory No. 2, name each one whose account was charged

for unemployment benefits paid to striking employees

pursuant to MESA, during a strike, and for each strike,

state the following:

(a) The total amount charged to the employer’s ac-

count for unemployment benefits;

(b) The total number of strikers who received unem-

ployment benefits from the State of Michigan; and

pews

25a

unemployment benefits from the State of Michi-

gan,

5. Were any of the strikes referred to in the answers

to Interrogatories Nos. 2 and 3 simultaneously directed

against plants or facilities of the same employer located

outside of the State of Michigan? If so, for each such

employer and each such strike state the following:

(a) The name and address of each plant or facility

against which the strike was directed (include

Michigan plants and facilities) ;

(b) The number of striking employees as of the com-

mencement of the strike at each plant or facility

named in (a);

cility named in (a) who received state unemploy-

ment benefits during the strike; and

(d) The total number of strikers at each plant or

facility named in (a) who did not receive state

unemployment benefits.

6. Were any of the strikes referred to in the answers

to Interrogatories Nos. 2 and 3 simultaneously directed

against other employer participants in a formal or in-

formal multi-employer bargaining arrangement? (‘‘For-

mal multi-employer arrangement’’ refers to an employer

association or other combination which engages in collec-

tive bargaining on a single collective bargaining units

basis. ‘‘Informal multi-employer arrangement’’ refers to

a group of employers, such as the Coordinating Committee

Steel Companies, who technically comprise separate bar-

gaining units but who, nevertheless, join together for pur-

poses of conducting collective bargaining negotiations with

a common union or unions.) If so, for each such strike

state the following:

26a

(a) The name of each employer against which the

strike was directed and for each such employer:

(i) The name and address of each plant or facility

against which the strike was directed (include

Michigan plants and facilities) ;

(ii) The number of striking employees as of the com-

mencement of the strike at each plant or facility

named in (a) (i);

(iii) The toial number of strikers at each plant or

facility named in (a)(i) who received state un-

employment benefits during the strike; and

(iv) The total number of strikers at each plant or fa-

cility named in (a)(i) who did not receive state

unemployment benefits.

(b) The union or unions which conducted the strike:

(d) The date the strike terminated;

(e) Method of termination, e.g., agreement between

the parties, Union’s loss of bargaining agent

status;

(f) A detailed description of employer association or

group’s last economic offer prior to the strike,

including a list of each such wage or fringe bene-

fit component of such offer and the cost, as com-

puted by the employer, of each such wage or

fringe benefit component; and

(g) A detailed description of the terms of the eco-

nomic settlement on which basis the strike was

terminated, including a list of each wage or fringe

benefit component of such settlement and the cost,

as computed by the employer, of each such wage

or fringe benefit component.

27a

7. List the title of each and every communication,

booklet, book, pamphlet, periodical, circular, printed

speech, memorandum, instructions, news release, or other

document issued or distributed in the past ten years by

the Chamber or its affiliates to constituent business firms

or to the public, generally containing material referring

to the receipt of unemployment compensation benefits by

strikers.

8. List by title and recipient every communication,

booklet, book, pamphlet, periodical, circular, printed

speech, memorandum, or other document which contained

material referring to the receipt of unemployment compen-

sation benefits by strikers and which was sent in the past

ten years by the Chamber, its agents or affiliates, to the

following:

(a) The President of the United States or his assist-

ants;

(b) Any individual who is now a Justice of the Su-

preme Court of the United States;

ate of the United States or their legislative or

administrative assistants; and

(d) Members of the Legislature of the State of Michi-

gan.

9. List every communication received by the Chamber

in the past ten years from any individual now servire as

a Justice of the Supreme Court of the United States; the

subject matter of which related:to the achievement of the

Chamber’s legislative, social policy or litigation objectives.

10. Describe in detail each and every procedure or

program utilized by the Chamber in the past ten years to

oppose or combat the payment of unemployment compen-

sation to striking employees.

28a

11. With respect to each procedure or program re-

ferred to in the answer to Interrogatory No. 10, state the

following:

(a) The name, title and address of the individual(s)

principally responsible for implementing said pro-

cedures or programs; and

(b) The amount of money expended by the Chamber

on behalf of each such procedure or program.

12. In connection with the implementation of any pro-

cedure or program referred to in the answer to Interrog-

atory No. 10, state whether the Chamber has in the past

ten years made any payment of money to the following

and, if so, the total amount of such payments:

(a) Armand Thieblot;

(b) Ronald Cowin;

(d) Edwin J. Doherty; and

(e) North American Newspaper Alliance.

13. Will the Chamber attempt to prove that the re-

ceipt or expectation of unemployment compensation bene-

fits in Michigan causes workers in that state to stiffen

bargaining demands beyond what they would have been

absent such benefits? If so, describe in detail every fact,

statistics, document or other item of evidence which the

Chamber will offer as its proof thereof.

14. Identify every strike or settlement (if any) in the

State of Michigan in which the Chamber will contend that

the workers made higher bargaining demands than they

would have absent the availability of unemployment com-

pensation benefits, and for each such strike or settlement,

describe in detail every fact, document or other eviden-

tiary basis which the Chamber will offer as proof of such

29a

a conclusion, and for each such strike or settlement, state

the following:

(a) The name and address of the employer;

(b) The name of the union;

located outside the State of Michigan were struck

as part of the same strike or settled as part of

the same settlement and, if so, the name and ad-

dress of every plant or facility involved in the

strike or settlement;

(d) Whether employers other than that named in ( a)

were struck as part of the same strike or settled

as part of the same settlement and, if so, the name

and address of every plant or facility involved

in the strike or settlement;

(e) The number of strikers (by plant) at the com-

mencement of the strike;

(f) The number of strikers (by plant) who received

state unemployment benefits during the strike;

(g) The number of strikers (by plant) who did, not

receive state employment benefits during the

strike;

(h) The bargaining demands of the union both at the

commencement of negotiations and just prior set-

tlement; and

(i) The bargaining demands which would have been

made by the union but for the availability of un-

employment benefits and the evidentiary basis

which the Chamber will offer to support its des-

cription of such demands.

15. Will the Chamber attempt to prove that the re-

ceipt or expectation of unemployment compensation bene-

fits in Michigan causes workers in that state to strike

30a

when they would have settled absent such benefits? If so,

describe in detail every fact, statistic, document or other

item of evidence which the Chamber will offer as its proof

thereof.

16. Identify every strike (if any) in the State of

Michigan which the Chamber will contend would have been

settled absent the availability of unemployment compen-

sation, and for each such strike, describe every fact, docu-

ment or other evidentiary basis which the Chamber will

offer as proof of such a conclusion and for each such strike

state the following:

(a) The name and address of the employer;

(b) The name of the striking union;

located outside the State of Michigan were struck

as part of the same strike and, if so, the name and

address of each struck plant or facility:

(d) Whether employers other than that named in (a)

were struck as part of the same strike and, if so,

the name and address of each struck plant or

facility;

(e) The number of strikers (by plant) at the com-

mencement of the strike;

(f) The number of strikers (by plant) who received

state unemployment benefits during the strike;

and

(g) The number of strikers (by plant) who did not

receive state unemployment benefits during the

strike.

17. Will the Chamber attempt to prove that the re-

ceipt or expectation of unemployment compensations bene-

fits in Michigan causes workers in that state to continue

a strike for longer than they would have absent such

benefits? If so, describe in detail every fact, statistic, docu-

3la

ment or other item of evidence which the Chamber will

offer as its proof thereof.

18. Identify every strike (if any) in the State of

Michigan which the Chamber will contend was prolonged

by the availability of unemployment compensation, and for

each such strike, describe in detail] every fact, document

or other evidentiary basis which the Chamber will offer

as proof of such a conclusion, and for each such strike,

state the following:

(a) The name and address of the employer;

(b) The name of the striking union;

located outside the State of Michigan were struck

as part of the same strike and, if so, the name and

address of each struck plant or facility ;

(d) Whether employers other than that named in (a)

struck as part of the same strike and, if so, the

name and address of each struck plant or facility;

(e) The number of strikers (by plant) at the com-

mencement of the strike;

(f) The number of strikers (by plant) who received

state unemployment benefits during the strike;

(g) The number of strikers (by plant) who did not

receive state unemployment benefits during the

strike;

(h) The date the strike commenced ;

(i) The approximate date the strike would have

ended but for the availability of unemployment

benefits (including the Chamber’s explanation for

how it arrived at this date) ; and

(j) The date the strike actually ended.

32a

19. Does the Chamber intend to offer any statistical

comparisons or studies of the length and cost of strikes in

Michigan (or Rhode Island and New York) and the length

and cost of strikes of similar size in similar industries in

states not granting unemployment benefits to strikers?

If so, identify each such comparison or study by its title,

author and date.

20. Will the Chamber offer in evidence (in addition

to the affidavits already filed with the Court) any docu-

ments, transcripts of interviews or other evidentiary ma-

terial directed at the effect on strikes or settlements of

the actual or expected receipt of unemployment benefits in

Michigan? If so, describe in detail each such document,

transcript of interview or other evidentiary material.

21. Will the Chamber offer any empirical evidence

and expert testimony as to the nature and scope of the

long-term impact on industry pricing and competitiveness

of longer strikes and costlier outcomes allegedly caused by

the availability of unemployment benefits? If so, state the

following:

(a) The nature of such empirical evidence, including

the title of any supporting statistical or economic

studies; and

(b) The name and position of any individual who will

be offered as an expert witness on this subject.

22. Will the Chamber offer any empirical evidence and

expert testimony as to the nature and scope of the short-

term impact on consumer demand of longer strikes and

costlier outcomes allegedly caused by the availability of

unemployment benefits? If so, state the following:

(a) The nature of such empirical evidence, including

the title of any supporting statistical or economic

studies; and

33a

(b) The name and position of any individual who will

be offered as an expert witness on this subject.

These interrogatories are continuing in nature so as to

require timely supplemental answers should the Chamber

its affiliates or agents, obtain additional information re-

gardless of the source, between the time answers are

served and the date of trial.

Dated: April 28, 1973.

Cart B. Franke

Assistant General Counsel

United Steelworkers of America,

AFL-CIO

/s/ Cart B. Franxer

Carl B. Frankel

Auten J. Kovinsky, Eso.

Kasorr, Youne, Gorrzsman & Kovinsky

/s/ Auten J. Kovinsxy

Allen J. Kovinsky

Attorneys for Defendant-Intervenor

United Steelworkers of America,

AFL-CIO

(Certificate of Service Omitted in Printing)

34a

(Caption omitted in printing)

Memorandum Opinion

On April 28, 1973 the defendant-intervenor, United

Steelworkers of America, served interrogatories upon

plaintiffs Dow Chemical Company and the United States

Chamber of Commerce. The first twelve of these were

directed exclusively to the Chamber (the Chamber inter-

rogatories). The remaining ten were addressed to both

plaintiffs. These will be referred to as the Dow inter-

rogatories, although what is said here concerning them

applies equally to their Chahber-directed counterparts.

Dow filed objections to its interrogatories, and on June

4, 1973 an order was entered upholding Dow’s contention

that the information sought included the work product

of attorneys, and accordingly relieving Dow of the need

to answer. Leave was given the Steelworkers to reword

and refile the interrogatories. Subsequent negotiations

between the parties failed to produce a version acceptable -

to the plaintiffs, although Dow did answer an amended

version of Dow interrogatory number 7.

There are at least three versions of the Dow inter-

rogatories: original, amended and proposed. The Chamber

interrogatories are apparently unchanged from the origi-

nal version, although both sets of interrogatories are now

preceded by a preamble and definitions which significantly

narrow the scope of the inquiry. The Steelworkers move

to compel answers to the Chamber interrogatories and

the proposed version of the Dow interrogatories.

Tue CHAMBER INTERROGATORIES

Chamber interrogatory number 1 asks for a list of

Chamber members who are subject to the Michigan Em-

ployment Security Act (M.E.S.A.), 12 M.S.A. § 17.501 et

seq. Number 2 asks which of these have had strikes since

January 1 of 1968, and numbers 3 through 6 request in-

35a

formation concerning any such strikes (dates, partici-

pants, terms, resolution, unemployment benefits paid to

strikers, ete.). Although the Chamber has indicated its

willingness to provide information on employers generally

who have been struck or have had their accounts charged

for payment of unemployment benefits to striking work-

ers, it objects strenuously to any disclosure of its mem-

bership.

The Chamber’s contention that because it is the effect

of the availability of unemployment benefits on all strikes

that is in issue in this ease, the distinction between

member and non-member employers is irrelevant, and

therefore the Chamber’s membership list is also irrele-

vant, is inconsistent with the allegations appearing on the

face of the complaint. The Chamber sues not on behalf

of all employers subject to M.E.S.A., but only on behalf

of its member-employers subject to M.E.S.A. Complaint

"9 I, I11(2).

Although there is language in the complaint at various

points which is broader in scope than that which refers

only to Dow and the Chamber’s member-employers, it is

clear that much is claimed for or about these member-

employers which is not claimed for or about employers

generally. The effects of M.E.S.A. upon member-employers

of the Chamber, their constitutional rights to be free of

such effects, and the relief appropriate to remedy any

infringement thereon are all issues which the Chamber,

as a co-plaintiff, has itself interjected into this action.

It cannot now be heard to say that information as to the

identity of these allegedly aggrieved member-employers

is not relevant to this litigation. Cf. Schwartz v. Broad-

cast Music, Inc., 16 F.R.D. 31 (S.D.N.Y. 1954).

The Chamber also claims a constitutional privilege

against disclosure on behalf of its member-employers. It

contends that the first and fourteenth amendment rights

to freedom of association, as applied in NAACP v. Ala-

36a

bama, 357 U.S. 449 (1958), and Bates v. City of Little

Rock, 361 U.S. 516 (1960), would be seriously impaired

by disclosure of its membership lists, and that this out-

weighs any need to obtain the information for purposes

of this lawsuit.

Assuming the availability of the first amendment pro-

tections to the Chamber’s members, the facts of this case

nevertheless do not warrant its invocation to deny de-

fendant-intervenor the information it seeks. Whether the

first amendment protects an organization against dis-

closure of its membership lists must be decided by balanc-

ing the degree to which the right of association will be

abridged with the interest in disclosure, and ‘‘{w]here

there is a significant encroachment upon personal liberty,

the State may prevail only upon showing a subordinating

interest which is compelling’’. Bates v. City of Little

Rock, supra, 361 U.S. at 524. Conversely, however, where

encroachment upon liberty is minimal, the interest assert-

ed in disclosure need be far less compelling in order to

overcome the interests of the group in free association.’

It is elementary that a party must as a matter of

course have the right to inquire into the factual bases

of allegations contained in the opponent’s pleadings. See,

e.g., Hughes v. Groves, 47 F.R.D. 52, 57 (W.D. Mo. 1969) ;

Lance, Inc. v. Ginsburg, 32 F.R.D. 51, 52 (E.D. Pa. 1962).

Such inquiries are by definition relevant to issues raised

in the case. There can be no viable claim of oppressive-

ness, for having pleaded certain facts, it may be assumed

that the pleader is in a position to furnish the details

upon which he relied in making the allegation. RCA Mfg.

Co. v. Decca Records, Inc., 1 F.R.D. 433, 435 (S.D.N.Y.

In both NAACP and Bates, supra, the dangers of disclosure

of membership lists was clearly documented. In this case the

Chamber has presented nothing but the bare assertion that eco-

nomic or other pressures may be applied to its members. Having

failed to document as required by NAACP and Bates, any rea-

sonable interest in disclosure will overcome the speculative harm.

37a

1940). And even assuming that the facts in question may

be covered by an assertable privilege, which in this case

they are not, it is only just to conclude that by pleading

at bar as to matters involving those particular facts,

the party so pleading has chosen to forego its privilege

in favor of proving those allegations as part of its case.

Because it would be fundamentally unfair to permit a

party to withhold information relevant to allegations

which it has itself made and the issues thereby raised,

the party must choose between its allegations and its

privilege. See Awtry v. United States, 27 F.R.D. 399,

402-03 (S.D.N.Y. 1961); Independent Productions Corp.

v. Loew’s, Inc., 22 F.R.D. 266, 276-77 (S.D.N.Y. 1958).

There is, therefore, no legitimate reason for denying

defendant-intervenor the information requested in Cham-

ber interrogatories 1 through 6, and they must be an-

swered. In view of the Chamber’s obvious misgivings,

however, it will not constitute an unfair burden on de-

fendants if the membership list is placed under a pro-

tective order specifying that it may not be used for

purposes unconnected with this case, espcvially since the

Steelworkers previously indicated their willingness to

abide by such an order.

Chamber interrogatories 7, 8, 10 and 11 request infor-

mation concerning the Chamber’s efforts in opposition to

the payment of unemployment compensation to striking

employees during the past ten years, including the title

and recipient of materials distributed by the Chamber

and details of all programs or procedures undertaken in

that cause. They must be answered.

The Chamber’s objections to the relevancy of these

inquiries are without merit. These interrogatories are

limited to programs and communications concerning the

subject matter of this suit—payment of unemployment

compensation to striking employees.?

* Felix A. Thillet, Inc. v. Kelly-Springfield Tire Co., 41 F.R.D.

55, 57-58 (D. Puerto Rico 1966); Fed. R. Civ. P. 26(b) (1).

38a

Interrogatory number 12-asks whether, in connection

with any of the Chamber’s programs to combat welfare

to strikers, money has been paid to four named individuals

and the North American Newspaper Alliance. Certainly

the information sought would be highly relevant for im-

peachment purposes should any of these persons or repre-

sentatives of the Alliance be called as witnesses. It must

be answered.

Finally, as to number 9, both sides agree that the prob-

lem is entirely one of timing. The question seeks a listing

of all communications received by the Chamber during the

past ten years ‘‘from any individual now serving as a

Justice of the Supreme Court of the United States”’,

concerning ‘‘the achievement of the Chamber’s legislative,

social policy or litigation objectives”’.

Despite the Steelworkers’ contention that ‘‘the losing

party will certainly seek review in the Supreme Court of

the United States’’, there are too many unresolved vari-

ables between here and there to conclude that there is a

reasonable probability of this information ever becoming

relevant. Number 9 therefore need not be answered unless

and until its relevance is more clearly established. Should

this case eventually reach the Supreme Court, an answer

would be required.

Dow INTERROGATORIES

Dow interrogatories numbers 1, 3 and 5 ask for the

identity of any ‘‘survey, statistical study, or other docu-

ment’’ in Dow’s possession ‘‘relating to’’ the effect of

unemployment compensation payments to strikers on stif-

fening of bargaining demands, calling of strikes, and the

continuation of strikes. Numbers 2, 4 and 6 ask for de-

tailed identification of all Michigan cases in which Dow

contends that higher bargaining demands were made or

strikes were called or prolonged as a result of the avail-

ability of unemployment compensation to strikers, and

any survey, statistical study, or other document which

39a

supports those allegations. Number 7, which Dow has

answered but the Chamber has not, asks for identification

of any ‘‘statistical comparisons or studies’? of the length

and cost of strikes as between those states which do and

those which do not grant unemployment benefits to strik-

ers. Number 8 asks for identification of any ‘‘transcripts

of interviews or any other documents regarding the

effect on strikes or settlements of the actual or expected

receipt of unemployment benefits in Michigan’’. Numbers

9 and 10 ask for identification of any ‘‘empirical study

or other document’’ coneerning long term impact of

benefit payments of industry pricing and competitiveness,

and its short term impact on consumer demand. They

also seek to determine who will be called as expert

witnesses on these subjects.

Dow claims initially that this court’s prior ruling on

the original Dow interrogetories has become the law of

the case and is binding as to the propriety of interroga-

tories presently before the court. See generally 1B J.

Moore, Federal Practice { 0.404[1] (2d ed. 1974). How-

ever, because the proposed version of these interrogatories

is materially different ‘rom the originals, the issues to

be decided are distinct and the doctrine does not apply.

See, e.g., Salvoni v. Pilson, 181 F.2d 615, 619 (D.C. Cir.),

cert. dented, 339 U.S. 981 (1950). In addition, because the

prior ruling expressly reserved to the Steelworkers the

opportunity to reword and refile the interrogatories, that

reservation is controlling and requires fresh consideration

of the revised version. See, e.g., De Pinto v. Landoe, 441

F.2d 297, 299 (9th Cir. 1969) ; Cataphote Corp. v. Hudson,

422 F.2d 1290, 1296 (Sth Cir. 1970). In any event, ‘‘the

‘iaw of the case’ is only a discretionary rule of practice’’.

United States v. United States Smelting, Refining & Min-

ing Co., 339 U.S. 186, 199 (1950).

Dow next contends that interrogatories 1, 3, 5, 8, 9

and 10 are violative of the work product rule. See Fed.

R. Civ. P. 26(b)(3); Hickman -v. Taylor, 329 U.S. 495

40a

(1947). Insofar as this objection goes to the nature of the

information requested, it has been mooted by the definition

of ‘‘describe’’ which now precedes the interrogatories.

Whereas the original version may have inappropriately

sought virtual production of these documents under Rule

33 by requesting detailed recitations of their contents, it

is now evident that only information necessary to identify

the documents in a request for production under Rule 34

(author or originator, addressee(s), date, title or subject

matter, and custodian) is being sought.

‘‘The Rule [26] authorizes inquiry as to the exist-

ence and location of statements obtained from wit-

nesses and memoranda and reports of experts and

attorneys. Any objection that such documents are

shielded from discovery by privilege, or by the work

product doctrine, must be saved until production of

the documents is sought or questions are put regard-

ing the contents of the documents. Similarly the

requirement of good cause for production of trial

preparation materials can be raised only after pro-

duction is sought.’’ 4 J. Moore, Federal Practice

{] 26.58 at 26-216-17 (2d ed. 1974).°

Dow interposes a similar objection to all of the inter-

rogatories based on Rule 26(b)(4), claiming that the

questions seek discovery of ‘‘facts known and opinions

held by experts ... acquired or developed in anticipation

of litigation’’, which are not limited as required in sub-

section (b)(4). The same distinction between identity

>See Ballard v. Allegheny Airlines, Inc., 54 F.R.D. 67, 69

(E.D. Pa. 1972); La Rocea v. State Farm Mut. Auto. Ins. Co.,

47 F.R.D. 278, 282 (W.D. Pa. 1969); United States v. Glaxo

Group Ltd., 302 F.Supp. 1, 17 (D.D.C. 1969), rev’d on other

grounds, 410 U.S. 52 (1973) ; Cedolia v. C.S. Hill Saw Mills, Ine.,

41 F.R.D. 524, 527 (M.D.N.C. 1967); McCall v. Overseas Tank-

ship Corp., 16 F.R.D. 467 (S.D.N.Y. 1954); Harvey v. Eimeo

Corp., 28 F.R.D. 380, 381 (E.D. Pa. 1961); C. Wright & A.

Miller, Federal Practice and Procedure: Civil § 2023 at 194

(1970).

4la

and contents of documents applies here and requires ad-

herence to the strictures of 26(b)(4) only when the

substance of those materials is sought.

The other leg of Dow’s work product argument con-

cerns the necessity for Dow’s attorneys to sift through

their files to determine the materials in their possession

‘‘relating to’’ the various subjects about which the Steel-

workers inquire. This, they claim, requires them to formu-

late and reveal their theories as to what evidence supports

their allegations, and that this is undiscoverable work

product.

Finally, Dow claims that the information sought in

numbers 2, 4 and 6 is in large part equally available to

the Steelworkers, and it would therefore be unduly bur-

densome to require it to compile all the information re-

quested. Dow does not object to identifying those strikes

which it contends have been affected by unemployment

compensation payments to strikers, but only to compiling

the details requested concerning them. Having considered

these objections, the court rules that the interrogatories to

Dow must be answered.

ATTORNEY F'EkEs

The court declines to dispose of the matter of assessing

attorney fees at this juncture. This will await the outcome

of this litigation. The court notes that there is an insuff-

cient basis to award fees to either side. There may well

have been merit in both positions. Having said that, the

court notes that counsel will be well advised to observe

Judge Murrah’s admonition that this cause is now busi-

ness in which the public is interested. This is no longer

a private dispute and, in any event, it is not a brawl.

Counsel for the intervenor defendant, United Steel-

workers of America, AFL-CIO-CLC, is requested to pre-

sent an appropriate order.

42a

/s/ JoHN FEIKENS

John Feikens

United States District Judge

Datep: Detroit, Michigan

June 27, 1974

43a

(Caption omitted in printing)

Memorandum Opinion Denying Motion for Reconsideration

Plaintiff Chamber of Commerce has filed a motion re-

questing the court to reconsider its Memorandum Opinion

of June 27, 1974 requiring that the Chamber answer

certain interrogatories.

Plaintiff Dow Chemical Company has notified the court

it fully intends to comply and will answer the interro-

gatories.

The motion is denied.

The basic concern of the Chamber relates to disclosure

of its membership list. Its main arguments again relate

to speculative fears of future harm to its members and

itself from disclosure. These fears are largely premised on

public dissemination of the list.

This court has entered a strong protective order which

restricts disclosure of the list to counsel in this case and

to the parties only as is necessary to aid in counsel’s

preparation in this case. This order will protect the list

from public disclosure. The court is ready to back up

its order fully.

This court has a high regard for the integrity of the

attorneys and their awareness of their duties as officers

of this court. It will not presume its order will be violated.

The remaining contentions are without merit.

Accordingly, the motion for reconsideration is denied.

An appropriate order may be submitted.

/s/ Joun FErKENS

John Feikens

United States District Judge

Datep: Detroit, Michigan

October 29, 1974

44a

(Caption omitted in printing)

Motion to Amend Order to Include Statement Under

28 U.S.C. § 1292(b)

Plaintiff Chamber of Commerce of the United States

of America (‘‘Chamber’’), by its attorneys, hereby moves

the Court to amend its Order of October 8, 1974 in the

captioned action to include the statement prescribed by

28 U.S.C. §1292(b) so that the Chamber may seek an

interlocutory appeal to the United States Court of Appeals

for the Sixth Circuit. In support whereof, the following is

shown:

I. SratremMent or Facts

1. The Chamber is a plaintiff in the captioned action,

which action involves the question of whether the Michigan

Employment Security Commission may lawfully provide

benefits to striking employees.

2. On July 9, 1973, the Intervenors in this suit, the

United Steelworkers of America, AFL-CIO-CLC (‘‘Steel-

workers’’), served upon the Chamber a set of interroga-

tories directing the Chamber to identify those of its mem-

bers who are subject to the Michigan Employment Securi-

ty Act (‘‘MESA’’) and further directing the Chamber to

(1) identify those of its members whose employees were

engaged in a strike during the period of January 1, 1968

to April 1, 1973 (Interrogatories 2, 3, 4, 5 and 6); (2)

provide information concerning strikes and strike settle-

ments within the State of Michigan (Interrogatories 14,

16 and 18); and (3) identify various studies and docu-

ments which the Chamber might have in its possession

(Interrogatories 13, 15, 17, 19, 20, 21 and 22). Because

the Chamber had no knowledge or documents relating to

the subjects of those interrogatories, the Chamber was

unable to provide any information responsive to those

interrogatories. Having no such information in its posses-

sion, the Chamber took the position that the identity of

45a

its members, standing alone, could be of no relevance to

the issues of this case or value to the Steelworkers in the

prepaartion of their defense of this action.

3. On October 8, 1974, this Court ordered the Cham-

ber to, inter alia, identify to the Steelworkers those of its

members subject to MESA. On October 18, 1974, the

Chamber moved the Court for reconsideration of its Order.

The Court denied reconsideration on October 29, 1974.

4. Disclosure of the Chamber’s membership may re-

sult in infringement of the First Amendment rights of

the Chamber’s members. Moreover, at this stage of the

proceedings in the district court, disclosure of the mem-

bership list may result in extensive, time-consuming and

costly discovery by the Intervenors which, in view of the

controlling questions of law involved, may be unnecessary

and improper. The allowance of an immediate appeal

from this Court’s October 8, 1974 Order would materially

advance the ultimate termination of the litigation by cut-

ting short any improper discovery and would protect the

Chamber and its members from irreparable injury.

Il. Questions or Law

5. The controlling questions of law as to which there

is substantial ground for difference of opinion are:

A. Whether, in view of the Supreme Court’s opin-

ion in Super Tire Engineering Co. v. McCorkle, ——

U.S. ——, 40 L.Ed. 1 (1974)?, the identity of Chamber

members who are subject to the Michigan Employ-

ment Security Act is of any possible relevance to the

issues of this case?

*In Super Tire, the Supreme Court noted that:

“the availability of state . .. assistance for striking workers

. - . pervades every work stoppage, affects every existing col-

lective bargaining agreement, and is a factor lurking in the

background of every incipient labor contract.’’ 40 L.Ed. at 9.

46a

B. Whether, where the Intervenors have failed to

show the relevance of or a compelling need for such

‘nformation and the Chamber has demonstrated the

irreparable harm which it and its members would be

caused, the Court should order disclosure of the iden-

tity of Chamber members who are subject to the

47a

as to which there is substantial ground for difference of

opinion and that an immediate appeal may materially ad-

vance the ultimate termination of the litigation; and, fur-

’

Michigan Employment Security Act? See NAACP v.

Alabama, 357 U.S. 449 (1958) ; Bates v. City of Little

Rock, 361 U.S. 816 (1960); American Civil Liberties

Union v. Jennings, 366 F.Supp. 1041 (D.D.C. 1973),

appeal pending, sub nom Staats v. ACLU, (Sup. Ct.

No. 73-1413); and United States v. National Commit-

tee for Impeachment, 469 F.2d 1135 (D.C.Cir. 1972).

C. Whether, in the circumstances of this case,

it violates the constitutional right of the Chamber’s

members to freedom of association to disclose the

identity of Chamber members who are subject to the

Michigan Employment Security Act? See NAACP v.

Alabama, 357 U.S. 449 (1958) ; Bates v. City of Little

Rock, 361 U.S. 816 (1960); American Civil Liberties

Union v. Jennings, 366 F.Supp. 1041 (D.C.C. 1973),

appeal pending, sub nom Staats v. ACLU, (Sup. Ct.

No. 73-1413); and United States v. National Commit-

tee for Impeachment, 469 F.2d 1135 (D.D.Cir. 1972).

6. The conflict between the Cour*’s Order of October

8 1974 and the authorities cited above, in the Chamber’s

Motion for Reconsideration and its supp°..ing memoranda

demonstrate that a substantial basis exists for a differ-

ence of opinion on the legal questions involved, and that

such legal questions will control and determine the course

of the litigation herein. Appellate resolution of these ques-

tions would provide needed guidance and would materi-

ally advance the termination of the litigation.

Wuererore, the Chamber requests that the Court amend

its Order of October 8, 1974, by including in the Order a

finding that there is involved a controlling question of law

Respectfully submitted,

/s/ Ricuarp Berman

Richard Berman

Labor Relations Counsel

CHAMBER OF COMMERCE OF THE

Unrtep States

1615 H Street, N.W.

Washington, D.C. 20006

/s/ Gerarp C. Smetana

. Gerard C. Smetana

233 South Wacker Drive

Chicago, Illinois 60684

/s/ Rosert J. Finke

Robert J. Finkel

Levin, Levin, Garvert & Dit

1250 Penobscot Building

Detroit, Michigan 48226

/s3/ Jerry KronensBerc

Jerry Kronenberg

Borovsky, Euruicn & Kronensera

120 South LaSalle Street

Southe 1820

Chicago, Illinois 60603

Attorneys for the Chamber of

Commerce of the United States

48a

Of Counsel:

Auan Raywmp

Burt R. Braverman

Coie, Zytstra & Raywip

2011 Eye Street, N.W.

Washington, D.C. 20006

(202) 659-9750

November 4, 1974

(Certificate of Service Omitted in Printing)

Date—1974; Proceedings.

Oct. 18—129. Motion by Chamber of Commerce of the

United States of America for reconsid. that part of its

order of Oct 8/74 which compels the chamber to dis-

close the list of the chamber’s members who are subject

to the Michigan Employment Security Act, certificate

of service. BA

Oct. 21—130. Certificate of service.

Oct. 23—131. Proof of service.

Oct. 29—132. Memorandum opinion denying motion for re-

consideration, filed and entered.

Nov. 4—134. Notice of appeal of the Chamber of Com-

merce of the United States of Amer. for stay pend-

ing appellate review, certificate of service. BA

Nov. 4—134.— Notice of appeal of the Chamber of Com-

merce of the United States of Amer.

Nov. 4—135. Letter directed to attorney re: appeal.

Nov. 4—136. Proof of mailing. —

Nov. 4—137. Motion of the Chamber of Commerce of the

United States of America to amend order to include

statement under 28 U.S.C. 1292(b) and certificate of

service. (points and authorities attached)

Nov. 5—___. Pre-trial had

Nov. 6—138. Order that the plaintiff’s motion for stay pend-

ing appellate review and that the portion of the court’s

October 8, 1974 order directing the Chamber to dis-

close its membership list to the intervenors is hereby

stayed until completion of appellate review, filed and

entered.

Nov. 6—139. Order denying motion to amend order to in-

clude statement under 28 USC 1292(d), filed and en-

tered.

Nov. 12—140. Certificate of service.

Nov. 13—141. Answers of Chamber of Commerce of the

United States of America to interrogatories, certificate

of service and affidavits (2).

50a

Nov. 14—142. Stipulation and order that the time to re-

spond to interrogatories served upon it, Dow Chemical

Company, by defendant-intervenors, United Steelwork-

ers of America is extended from Nov 7/74 to and

through Dee 9/74, filed and entered. (dated Nov 12/

74)

Nov. 14—143. Notice of final conference set for April 14/75.

Nov. 25—144. Order of CCA granting plaintiff-appellant’s

motion for stay pending appeal.

Dec. 9—145. Stipulation and order that the time within

which plaintiff is required to respond to interrogatories

served upon it by defendant-intervenor, United Steel-

workers of America is hereby extended from Dec 9/74

to and through Dee 23/74, filed and entered.

(Caption omitted in printing)

Notice of Appeal

Notice is hereby given that the Chamber of Commerce of

the United States of America, plaintiff in the captioned

action, hereby appeals from that portion of the Order en-

tered by this Court in this action on October 8, 1974, which

ordered the Chamber to disclose to the Intervenors United

Steelworkers of America, AFL-CIO-CLC, a list of the Cham-

ber’s members who are subject to the Michigan Employ-

ment Security Act.

November 4, 1974

(Certificate of Service omitted in printing)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.