Amicus Curiae Brief — Automobile Club of Michigan v. Bullock

No. 89-908

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

AUTOMOBILE CLUB OF MICHIGAN, a/k/a AAA,

and AUTO CLUB INSURANCE ASSOCIATION,

PETITIONERS,

-VYe

WILLIAM J. BULLOCK,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MICHIGAN

BRIEF OF THE NATIONAL ASSOCIATION OF

MANUFACTURERS AND MICHIGAN MANUFACTURERS

ASSOCIATION AS AMICI CURIAE IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

Of Counsel: DwiGut H. VINCENT*

JAN S. AMUNDSON J. WALKER HENRY

General Counsel RACHELLE G. SILBERBERG

QUENTIN RIEGEL CLARK, KLEIN &

Deputy General Counsel BEAUMONT

National Association of 1600 First Federal Building

Manufacturers Detroit, Michigan 48226

1331 Pennsylvania Avenue, N.W. (313) 965-8300

Suite 1500 — North Lobby Attorneys for Amici Curiae

Washington, D.C. 20004-1703

(202) 637-3058

January 5, 1990 * Counsel of record

BOWNE OF DETROIT

610 W. CONGRESS - DETROIT, MICHIGAN 48226 - (313) 964-1330

TABLE OF CONTENTS

Page

pe ii

INTEREST OF THE AMICI CURIAE............. l

PRELIMINARY STATEMENT ................... 3

REASONS FOR GRANTING THE PETITION ..... 5

I. Certiorari Should Be Granted To Address A State

Court Decision That Contravenes Fundamental

Precepts Of Federal Labor Policy ............... 5

II. If Permitted To Stand, The Michigan Supreme

Court’s Decision Will Have A Serious And Far

Reaching Impact On Unionized Industries........ 7

III. The Michigan Supreme Court Failed To Recognize

That Federal Labor Law Governs A Collective Bar-

gaining Relationship From Its Very Inception, Not

Just From Its Consummation................... 9

eel. vce ae veld bs bese eee 12

il

TABLE OF AUTHORITIES

CASES: Page

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ...... 5

Central Metallic Casket Co., 91 NLRB 572 (1950) ..... 10

Chemical Producers Corp., 183 NLRB 141 (1970) ..... 11

Derrico v. Sheehan Emergency Hospital, 844 F.2d 22 (2d

Or Ab ) IEP 8

International Longshoremen’s Ass'n v. Davis, 476 U.S. 380

(1986). . . ....+-w:s-0:0 0.65 6-6 uretn een enala nnn 10, 11

J.1. Case Co. v. NLRB, 321 U.S. 332 (1944)........... 5

Local No. 438 Const. and General Laborers Union vy.

Curry, 371 U.S. S42, S60 (ieee eee ee 11

Maushund vy. Earl C. Smith, Inc., 795 F.2d 589 (6th Cir.

he) Pr 8

National Metalcrafters, Division of Keystone Consolidated

Industries v. McNeil, 784 F.2d 817 (7th Cir. 1986) ... 8

Newspaper Printing Corp. v. NLRB, 625 F.2d 956 (10th

Cir. 1900)... 2.020 5000 eu a ee eeieni nnn 10

San Diego Building Trades Council v. Garmon, 359 U.S.

236, (1959)... 00 enn = seu eee een 10

Taft Broadcasting Co., 163 NLRB 475 (1967), enforced

sub nom, American Federation of Television & Radio

Artists v. NLRB, 395 F.2d 622 (D.C. Cir. 1968) ..... 11

Toussaint v. Blue Cross & Blue Shield of Michigan, 408

Mich. 579, 292 N.W.28 GOB (iRGee . osu ckeeee eee 6

STATUTES:

Labor Management Relations Act § 301, 29 U.S.C. § 185.. 4

National Labor Relations Act, 29 U.S.C. § 151 et seq... passim

ill

TABLE OF AUTHORITIES — (Continued)

MISCELLANEOUS:

52nd Annual Report of The National Labor Rela-

tions Board for Fiscal Year ended September 30,

ee Swine kee Keene erties es

Daily Labor Report (BNA), Aug. 11, 1988 ......

Federal Mediation & Conciliation Service, Contract

Expiration Notices as reported by BNA Plus, Dec.

eee ala aia Ga we eevee eie ws

Individual Employment Rights Manual (BNA

er eis e ids cus ae nae se

Selected U.S. Labor Statistics 1987 & 1988, BNA

ae cen cae ve eeevsdeyess

Shepard, Heylman & Duston, Without Just Cause

era vesie ng ae deen esss -

The Developing Labor Law, (C. Morris, 2d Ed

SE ee ee

U.S. Dept. of Labor; Bureau of Labor Statistics,

“Employed wage and salary workers by age, sex,

race, Hispanic origin, full or part-time status, and

union affiliation 1987, 1988” as reported in Daily

Labor Report, (BNA) Jan. 30, 1989 ..........

U.S. Dept. of Labor; Bureau of Labor Statistics,

“Major collective bargaining agreements sched-

uled to expire or with wage reopenings, by year

and industry” as reprinted in Collective Bargain-

ing Negotiations and Contracts (BNA 1989) ...

6

10

yo Cy pr eee ee eee ee ee

l

No. 89-908

In the Supreme Court of the United States

OCTOBER TERM, 1989

AUTOMOBILE CLUB OF MICHIGAN, a/k/a AAA,

and AUTO CLUB INSURANCE ASSOCIATION,

PETITIONERS,

-V-

WILLIAM J. BULLOCK,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MICHIGAN

BRIEF OF THE NATIONAL ASSOCIATION OF

MANUFACTURERS AND MICHIGAN MANUFACTURERS

ASSOCIATION AS AMICI CURIAE IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

INTEREST OF THE AMICI CURIAE

The National Association of Manufacturers (““NAM”) is an

association of approximately 13,500 companies and subsidiaries

that together produce more than eighty percent of this nation’s

manufactured goods and employ eighty-five percent of all manu-

facturing workers in the United States, many of whom are

potentially affected by the issues addressed herein. NAM is

affiliated with 158,000 additional businesses through its Associa-

tions Council and the National Industrial Council.

Michigan Manufacturers Association (“MMA”) is a busi-

ness association composed of private Michigan employers, organ-

ized -and existing to study matters of general interest to its

members, promote the interests of Michigan employers and of the

public generally in the proper administration of laws relating to its

members, and otherwise promote the general business and eco-

nomic welfare of the State of Michigan. A significant aspect of

MMA’s activities is representing the interests of its member-

employers in employment and labor relations matters before the

courts, Congress, Michigan Legislature, and State agencies.

MMA appears before this Court as a representative of approxi-

mately 2,700 private employers who employ more than 1,000,000

employees, many of whom are represented by unions in collective

bargaining units subject to the National Labor Relations Act, 29

U.S.C. § ISL et seg. (*NLRA”), all of whom are potentially

atfected by the issues presently before this Court. MMA is also an

employer of workers in the State of Michigan and has an interest

in this case both as an employer and as a representative of

employers affected by the issues decided herein. NAM and

MMA represent the interests of their member-employers through

Various means including, as here, appearances as amicus curiae in

cases of major concern.

As two principal voices of the manufacturing industry in the

United States and Michigan, NAM and MMA have a strong

interest in ensuring that the uniform and predictable body of

federal labor law, under which the industry functions, not be

eroded or diminished by inconsistent state court decisions on the

unplementation of national labor policy. Where prosecution of

umonized employees’ state law claims will interfere with or

frustrate federal labor policy, NAM and MMA believe such

claims must yield to federal preemption. The geometric increase

in the number of implied contract and breach of oral promise

employment lawsuits over the past decade has already created a

climate of uncertainty for American businesses. This case

presents a Most extreme example of the type of oral promise on

which implied contract claims are founded — that an employee

would have a job as long as he wasn’t caught stealing. Where, as

here, the oral promise sought to be enforced is not only capn-

cious, but directly at odds with lawfully imposed terms and

conditions governing discharge from employment, (a “last best”

offer implemented by the employer following an impasse in

bargaining) the matter is of particular concern to NAM, MMA

and their members.

The Michigan Supreme Court’s decision below not only

frustrates a lawful economic self-help remedy, but directly contra-

venes the federal labor scheme established by Congress. Applica-

ble preemption doctrines require that self-help remedies of labor

disputants remain free of state regulation and controlled only by

the free play of economic forces. If the mandate of federal

preemption is disregarded, American employers will be subjected

to unpredictable and inappropriate jury awards that will threaten

their ability to compete effectively in international markets, or, in

some cases, merely to survive in American markets.

The scenario in this case is far from an isolated occurrence.

This particular factual situation prompted scores of virtually

identical lawsuits brought by AAA employees in Michigan’s state

courts. Similar situations are potentially, if not actually, reflected

in thousands of cases throughout the nation (see discussion, infra,

pp. 7-8). Accordingly, the National Association of Manufacturers

and Michigan Manufacturers Association submit this brief amu-

cus curiae, with the consent of all parties, in support of the

petition for a writ of certiorari in order to assist the Court in

evaluating the import of the issue presented by this dispute

PRELIMINARY STATEMENT

The question in this case is whether the NLRA preempts an

implied oral contract claim raised by a member of a collective

bargaining unit under state law, when the claim concerns conduct

that is arguably protected or prohibited by the NLRA and

undermines an economic self-help remedy that Congress intended

to be unregulated. The answer to this question wil! determine, in

effect, whether the implied oral contract, alleged to have been

made before the employee cast his lot with a collective bargaining

unit, may override the terms and conditions of employment that

were lawfully implemented by his employer following 2 bona fide

impasse in collective bargaining between his employer and his

exclusive bargaining representative.

4

The terms of employment as asserted by Bullock in his state

law action (that he would be discharged only if caught stealing)

directly contradict the discharge standard (based on production

levels) implemented by AAA following an impasse in bargaining

with the collective bargaining unit of which Bullock was a

member. Such unilateral implementation of an employer's “last

best offer” is clearly comprehended by § 8 of the NLRA (see pp.

9-11 intra). AAA moved in the tral court to dismiss Bullock’s

clams on NLRA preemption grounds. The trial court denied the

motion, but certified the question for immediate appeal because it

involved “controlling questions of law as to which there is sub-

stantial ground for difference of opinion” (Petition for Certiorari,

\ppendix b, 7la-72a). The Michigan Court of Appeals summa-

rly reyected the company’s NLRA preemption arguments on the

stated ground that no collective bargaining agreement had ever

been consummated between AAA and the union. Michigan’s

highest court, the Michigan Supreme Court, rejected the com-

pany’s NLRA preemption arguments for essentially the same

reason the absence of a consummated contract.

Uhe inquiry formulated by the Michigan courts was whether

the terms and conditions of employment, lawfully imposed by

AAA following an impasse in collective bargatning with Bullock’s

umon, took precedence over Bullock’s alleged individual oral prom-

ise of employment that predated his union’s certification. The

Michigan courts obviously confused NLRA preemption with § 301

preemption. Labor Management Relations Act, 29 U.S.C. § 185.

Because no collective bargaining agreement was effected, the

Michigan Supreme Court found no federal labor preemption.

However, in deeming the consummation of a collective bargaining

agreement the sine qua non for the application of federal labor law,

the Michigan courts totally disregarded the validity of terms and

conditions of employment lawfully imposed by AAA as an eco-

nomic self-help remedy contemplated and protected by the NLRA.

Neither Michigan court focused on the significant fact that

the parties to this dispute are parties to a collective bargaining

relationship — a relationship that is governed from its inception,

—

—_— es

not just its consumination, by the National Labor Relations Act.

NAM and MMA submit that Bullock’s claim and the similar

claims of his 50 co-workers must be addressed under federal labor

law and that if they choose to challenge AAA’s actions, then they

must do so in the forum that has been vested with exclusive

jurisdiction over disputes that arise in the context of collective

bargaining relationships: the National Labor Relations Board

REASONS FOR GRANTING THE PETITION

I. CERTIORARI SHOULD BE GRANTED TO

ADDRESS A STATE COURT DECISION

THAT CONTRAVENES FUNDAMENTAL

PRECEPTS OF FEDERAL LABOR POLICY

Prior decisions of this Court have addressed the issue of

whether implied contract claims are preempted by $ 301 where

their resolution requires interpretation of a collective bargaining

agreement. Caterpillar, Inc. v. Williams, 482 U.S. 386 (1957). In

JI. Case Co. v. NLRB, 321 U.S. 332 (1944), this Court touched

upon the problems that arise when individual contracts conflict

with the terms of a collectively bargained contract. The Cour

there held that an individual contract cannot take anything away

from a collectively bargained agreement!

The issue presently before this Court, however, is one

impression, and as articulated further below, of enormous imp:

The Court’s resolution of the federal preemption issue raised ir

this case is particularly warranted because of the large number 0!

states that mow recognize a claim for breach of an implied

contract or of an oral promise of continued employment or

specified employment conditions. Such claims are often based on

oral promises that had been made in the past by supervisor

personnel at any level of an organization, at an) t

‘The Michigan Courts turned this entire concept inside out 5y reasoning

that unless a collective bargaining agreement is consummated. an individ

6

individual employee’s relationship with his employer. As a result

of decisions such as that of the Michigan Supreme Court below, a

large majority of these claims may be submitted to state court

juries for resolution. This is precisely what Congress intended to

prevent when it created a labor board vested with jurisdiction over

disputes between employers and employees represented by a

union in a collective bargaining unit.

The purpose of the Nation’s primary labor relations law is to

serve the public interest by reducing interruptions in com-

merce caused by industrial strife. It seeks to do this by

providing orderly processes for protecting and implementing

the respective rights of employees, employers, and unions in

their relations with one another. The overall job of the

NLRB is to achieve this goal through administration, inter-

pretation, and enforcement of the Act. 52 NLRB Ann. Rep.

3 (1987).

The fundamental policies underlying the federal labor

scheme — uniformity and predictability — would be entirely

frustrated if implied contract claims brought by union-represented

employees are decided by the courts of 50 different states. Indeed,

it should be noted that because the decision below was issued by

the same court that first recognized a Toussaint? implied contract

claim, it may be particularly influential on appellate courts in

other states.

We submit that the time is right for the Court to address the

merits of the NLRA preemption argument in this context. The

Congressional mandate of uniform and effective enforcement of

this nation’s labor policy cannot be served by allowing a multitude

of state courts to separately determine whether alleged oral or

implied individual employment contracts remain effective, not-

withstanding valid terms and conditions of employment arising

out of the collective bargaining process. That responsibility lies

with the National Labor Relations Board.

* Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292

N.W_.2d 880 (1980)

Il. IF PERMITTED TO STAND, THE MICHIGAN

SUPREME COURT’S DECISION WILL HAVE A

SERIOUS AND FAR REACHING IMPACT ON

UNIONIZED INDUSTRIES

The impact of the decision below will extend to all employers

who, following an impasse in bargaining, lawfully impose changes

in terms and conditions of employment. There are at least two

scenarios in which an employer would unilaterally implement a

last, best offer. First, as in this case when, after union certification,

negotiations toward an initial contract result in deadlock; and

second, when bargaining parties are unable to reach a new

agreement, even after a prior contract has expired

Union members comprise 16.8% of the total American

workforce and number over 17,002,000 (based dn 19% statistics,

the last year for which official statistics have been released).’

Between 1984 and 1988, unions organized close to 430,000

employees by winning nearly 9,000 certification elections.* Each

new certification raises the possibility of impasse and the resulting

dilemma faced by AAA in this case.

Employers whose contracts are set to expire will confront the

same predicament. The Federal Mediation and Conciliation Ser-

vice received 81,460 30-day contract expiration notices for fiscal

year 1987, and 77,027 for fiscal year 1988.° During the past year

alone, approximately 3.9 million workers in industry were covered

by nearly 800 major collective bargaining agreements that were

3U.S. Dept. of Labor, Bureau of Labor Statistics, “Employed wage ana

salary workers by age, sex, race, Hispanic ongin, full or part-time status and

union affiliation, 1987, 1988" as reported in Daily Labor Report, Jan 30, \949 at

B-14.

‘Daily Labor Report, Aug. 11, 1988 at B-! and Selected - S_ Labor

Statistics 1987 & 1988 as reported by BNA Plus, Dec 22. 1959

SFederal Mediation and Conciliation Services Contract Expiration Notices

as reported by BNA Plus, Dec. 22, 1989. This did not include unreported

or collective bargaining agreements in the public sector or those

covered by the Railway Labor Act.

scheduled to expire or be reopened in 1989.6 In sum, the possibil-

ity of impasse followed by implementation of a last, best offer

exists whenever contract negotiations are not immediately suc-

cessful. Every other court that has ever addressed the preemption

issue in this situation has held that federal labor law governs and

displaces state law; see, for example, National Metalcrafters,

Division of Keystone Consolidated Industries v. McNeil, 784 F.2d

817 (7th Cir. 1986). Moreover, anytime there is a hiatus between

collective bargaining agreements, because an agreement has ex-

pired (see, for example, Derrico v. Sheehan Emergency Hospital,

844 F.2d 22 (2d Cir. 1988) — or because an employee has not

yet come under the protection of an existing agreement — there is

the possibility that state law claims like this one would be

asserted, as was the case in Maushund v. Earl C. Smith, Inc., 795

F.2d 589 (6th Cir. 1986). Under the Michigan court’s holding

below, none of those situations would be preempted by federal

labor law. This would severely chill an employer’s right to exercise

a federally protected and federally sanctioned economic weapon.

At least 36 states have already recognized an implied con-

tract exception to the employment at will doctrine.” * Thus, the

potential for conflict between unilaterally imposed terms and

conditions and alleged individual implied contracts is staggering.

If the decision below stands, state courts would be inundated with

implied contract allegations that should properly be pursued as

unfair labor practice claims and employers would be faced with

directly conflicting regulatory systems under state and federal law.

*A major collective bargaining agreement is defined as an agreement

covering 1000 or more workers. U.S. Dept. of Labor, Bureau of Labor Statistics,

“Mayor collective bargaining agreements scheduled to expire or with wage

reopenings, by year and industry,” as reprinted in Collective Bargaining Negotia-

tions and Contracts at 8:313.

"Shepard, Heylman & Duston, Without Just Cause 8-9 (BNA 1989).

SOnly six states have explicitly refused to do so (Delaware, Florida,

Indiana, Missouri, North Carolina and Tennessee). Individual Employment

Rights Manual at 505:51 (BNA 1989).

9

NAM and MMA urge the Court to consider the broad

application of the significant issue raised by this case. The

employer's right to unilaterally implement changes is a well

established feature of federal labor law. Unilateral change after

impasse not only provides a tactical weapon for the employer, but

more importantly, assures the flexibility essential to a successful

commercial enterprise and a healthy economy. If an employer is

unable to implement a last, best offer without having to defend

hundreds of individual implied contract claims, the employer's

business may be seriously jeopardized to the detriment of both the

employer and its employees.

Ill. THE MICHIGAN SUPREME COURT FAILED TO

RECOGNIZE THAT FEDERAL LABOR LAW

GOVERNS A COLLECTIVE BARGAINING

RELATIONSHIP FROM ITS VERY INCEPTION,

NOT JUST FROM ITS CONSUMMATION

The two-fold issue presented to this Court by AAA’s petition

for a writ of certiorari is whether the NLRA preempts an

employee’s state law employment contract claim that (1) directly

contradicts terms and conditions of employment lawfully imple-

mented by the employer following an impasse in collective bar-

gaining and (2) undermines an economic self-help remedy which

Congress intended to be unregulated and controlled only by the

free play of economic forces. The significance of the issue is the

impact that its resolution will have on employers caught between

individual contract claims which seek to bind them to a panoply

of old promises and representations — made years or decades

earlier by supervisors and managers — and the obligation to deai

responsibly with the employees’ current democratically elected

bargaining representative, their union. So long as employees are

collectively represented by a union, their employer's paramount

obligation to bargain with the union continues. Even the existence

of an impasse does not terminate the duty to bargain. Although

active negotiations may be suspended, “the employer may not

take action disparaging to the collective bargaining process or

10

amounting to a withdrawal of recognition of the union’s represen-

tative status.” Central Metallic Casket Co., 91 NLRB 572

(1950), see also Newspaper Printing Corp. v. NLRB, 625 F.2d

956 (10th Cir. 1980), as cited in The Developing Labor Law,

Second Edition, Vol. I at 636. Just as an employer may not

unilaterally implement terms and conditions for‘all employees

that are better than those contained in its last offer, it may not

implement better terms for individual employees — where doing

so would disparage the collective bargaining process and under-

mine the status of the union as the exclusive statutory bargaining

agent. Thus, if an employer were to accede to an alleged promise

beneficial to an individual employee, the employer would implic-

itly violate the duty to bargain collectively imposed by § 8(a) (5)

of the NLRA.

Surely the employee would rely upon the NLRA if his

employer Were to invoke a pnor employment term amidst a labor

dispute. Assume, for example, that Bullock was hired under a

policy that he would be tired if he failed to come to work for three

consecutive business days. If a union was later certified, bargained

with AAA to impasse, and the union members went on strike for

more than three days — prompting Bullock’s discharge — clearly

Bullock would seek a remedy under the NLRA.

The proseriptions and protections of the NLRA are equally

available to the employer. Just as Bullock has the protected nght

to stnke following an impasse in bargaining between his employer

and his union, so does his employer have the protected nght to

unilaterally implement terms and conditions of employment pre-

viously proposed to the union. It is because the conduct com-

plained of — the implementation of new terms and conditions is

— protected by § 8 of the NLRA that his claim must be held

preempted under Garmon® and its progeny. International Long-

shoremen’s Ass'n v. Davis, 476 U.S. 380 (1986).

As this Court held in Davis, where a state law claim is

preempted by the NLRA under Garmon and subsequent cases,

*San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)

li

“the state courts lack the very power to adjudicate the claims that

trigger preemption.” 476 U.S. at 398. Where a claim contains

allegations that make out an arguable violation of § 8, jurisdiction

over the dispute lies “within the exclusive domain of the National

Labor Relations Board.” Davis, at 390 citing Local No. 438

Const. and General Laborers Union v. Curry, 371 U.S. 542, 548

(1963).

In Davis, this Court devised a practical test for determining

whether the “precondition for pre-emption” has been met: “[A]

party claiming pre-emption is required to demonstrate that his

case is one that the [NLRB] could legally decide in his favor.”

The party must also “put forth enough evidence to enable the

court to find that the Board reasonably could uphold” its position.

476 U.S. at 394. As AAA explained in its Petition, Bullock’s state

law claims could have been presented to the NLRB as an

unlawful unilateral change by AAA that was prohibited by

§ 8(a)(5) and § 8(d) of the NLRA and, in the event that AAA

had acted improperly, he could have obtained relief. Petition for

Certiorari pp. 14-21.!° Alternatively, the NLRB could uphold

AAA’s unilateral change as a bargaining tactic comprehended

and sanctioned by § 8(a)(5) and § 8(d). Either way it is conduct

governed by the NLRA.

The parties need not have achieved an effective contract in

order for Bullock or his co-workers to pursue a remedy}, nor for

the NLRB to address an employer's unilateral implementation of

new terms and conditions following impasse. Contrary to the

holding of the Michigan Supreme Court, the consummation of 4

collective bargaining agreement is not required for the parties

relationship to be controlled by federal labor law, 2 body of lau

that governs all aspects of the collective bargaining process

including impasse. In both Chemical Producers Corp . 143 NLRB

141 (1970) and Taft Broadcasting Co, 163 NLRB 475 (1967

19[n 1987 the NLRB obtained $40,635,903 in reimbursement to employees

discharged and otherwise discnminatec against In that same year. the

obtained 4,307 offers of job reinstatements with 3 206 accepr ances $2

NLRB

NLRB Aan. Rep. 2 (1987).

12

enforced sub nom American Federation of Television & Radio

Artists v. NLRB, 395 F.2d, 622 (D.C. Cir. 1968), a bona fide

impasse was found when the parties reached a deadlock in their

initial negotiations. The same rationale and policy that applied in

these NLRB cases, and in those cited by Petitioner, applies to the

continually arising scenarios portrayed above. Because this dis-

pute reflects an important and recurrent issue of major signifi-

cance to industry in this nation, the National Association of

Manufacturers and Michigan Manufacturers Association urge the

Court to resolve it at this time.

CONCLUSION

For the reasons stated above, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

CLARK, KLEIN & BEAUMONT

Of Counsel: DwiGHT H. VINCENT*

JAN S. AMUNDSON J. WALKER HENRY

General Counsel RACHELLE G. SILBERBERG

QUENTIN RIEGEL 1600 First Federal Building

Deputy General Counsel Detroit, Michigan 48226

National Association of (313) 965-8300

Manufacturers Attorneys for Amici Curiae

1331 Pennsylvania Avenue, N.W.

Suite 1500 — North Lobby

Washington, D.C. 20004-1703

(202) 637-3058

DATED: January 5, 1990

* Counsel of record