Opposition Brief — United Food & Commercial Workers Local 951 v. Mulder

No. 94-926

IN THE

Supreme Court of the Ruited States

OCTOBER TERM, 1994

UNITED FOOD AND COMMERCIAL WORKERS,

LocaAL 951, AFL-CIO AND CLC,

Petitioner,

v.

PHILLIP MULDER, CHARLES BUCK, AND

LEON GIBBONS,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

GLENN M. TAUBMAN

National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

Attorney for Respondents

January 13, 1995

COUNTER-STATEMENT OF THE

QUESTIONS PRESENTED

1. Were the lower federal courts correct in holding that they

lacked jurisdiction to enforce against nonmember employees, who

objected to the amount of agency fees demanded from them, an

internal-union “rebate” scheme which culminated in two non-

contractual, non-consensual, internal-union “arbitrations?”

2. Were the lower federal courts correct in refusing to

summarily turn the results of two non-contractuai, non-consensual,

internal-union “arbitrations” into binding federal court judgments?

ih

PARTIES TO THE PROCEEDINGS

Petitioner is the United Food and Commercial Workers, Local

951, AFL-CIO and CLC, a union representing employees of, inter

alia, Meijer, Inc. Respondents are Phillip Mulder, Charles Buck

and Leon Gibbons, three employees of Meijer who work within the

bargaining unit covered by Local 951. Each Respondent has

resigned from membership in Local 951 and filed objections

pursuant to Communications Workers v. Beck, 487 U.S. 735 (1988).

The National Labor Relations Board (“NLRB”) intervened

successfully in the District Court and received a partial stay of the

proceedings. However, the NLRB filed nothing further with the

District Court regarding the merits of the case and nothing with the

Court of Appeals. The NLRB, through the Solicitor General, has

indicated to the Clerk of this Court that it will file nothing related

to the instant Petition. As such, Respondents do not believe that the

NLRB continues to be a “party to this proceeding.”

TABLE OF CONTENTS

COUNTER-STATEMENT OF THE

QUESTIONS PRESENTED 2... cece cece cece i

THE LOWER COURTS WERE CORRECT IN

REFUSING TO CONFIRM LOCAL 951’S TWO NON-

CONTRACTUAL, NON-CONSENSUAL, INTERNAL-

LY GENERATED “ARBITRATIONS” AND TURN

THEM INTO BINDING JUDGMENTS. IT IS

UNDISPUTED THAT THERE WAS NO AGREEMENT

BETWEEN LOCAL 951 AND THE RESPONDENTS TO

ARBITRATE ANY DISPUTE AND BE BOUND BY

THE RESULT, AND THUS NO LEGITIMATE

ARBITRATION AWARDS TO CONFIRM.

A.) The Lower Courts Were Absolutely Faithful To

ee ee 4

B.) This Court Has Recognized That Employees

Challenging A Union’s Agency Fee Seizures

May Choose From Several Different Fora To

PuMNee CUNT EES Sa cc Ok ee we ees 7

- iv -

TABLE OF CONTENTS - Continued

Page

C.) This Case Presents No Issue That Would

Warrant The Issuance Of The Writ. ........... 10

SE go vl we ee eee ee ee le eee 1]

APPENDICES

A. Order of the Magistrate Judge of the United

States District Court for the Western District of

Michigan, Southern Division (Dec. 9, 1991) ..... la

B Order of the United States District Court for the

Western District of Michigan, Southern Division

Ce. we SED Nc boc Geta ee ae ee 3a

- Vv -

TABLE OF AUTHORITIES

Cases Page

Abood v. Detroit Board of Education.

We SE To sl eS oe ae eee 7

Abrams v. CWA, 818 F. Supp. 393

a I a gin ke atk EE Go phn 64 Nase we ee 10

AT&T Technologies v. CWA, 475 U.S.

I ce ce ete ered a Ue eae ey es oe ae hates 5

Building Material & Dump Truck Drivers v.

Traweek, 867 F.2d 500 (9th Cir. 1989) ........00.0.., 8

Chicago Teachers Union v. Hudson,

ee Se es cb we oe oe ce ne ee ees 5 A

Communications Workers v. Beck,

er See Fe OUD hbo Was ws bes ek ee ee Ss passim

Complete Auto Transit v. Reis, 451 U.S.

Se eke ee ees ee ee eee 8

Gateway Coal Co. v. Mine Workers,

ar Ng oo he hn eb oe koe one Oh 5

Gilmer v. Interstate/Johnson Lane Corp..,

meas, Oe eg WER eT OE sg cee hes bees 5

Hohe v. Casey, 956 F.2d 399 (3rd Cir. 1992) ........ . 10

Litton Financial Printing v. NLRB, __ U.S.

ery eee 5

Tierney v. City of Toledo, 917 F.2d 929

Se ls SU Se ea ee le eee bn Oete es 10

‘a vi -

TABLE OF AUTHORITIES - Continued

Cases Pace

United Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960) ............. 5, 6

Wace v, Bet, Fee US. VIE CIGRT) occ ce ccc tee eves 8

Constitutional & Statutory Provisions

2 Se oe a 8 a i 0 ee ee 1]

Federal Arbitration Act, 9 U.S.C. § 1, ef seg. .......... 6

Labor Management Relations Act

er a es ek 8 te a oe 8 ee ee l

‘hk 3 Se SS reer red ene ee ere Bra 6, 7

No. 94-926

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

UNITED FOOD AND COMMERCIAL WORKERS,

LocaL 951, AFL-CIO ANpD CLC,

Petitioner,

v.

PHILLIP MULDER, CHARLES BUCK, AND

LEON GIBBONS,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondents Phillip Mulder, Charles Buck and Leon Gibbons

(“Respondents” or “nonmembers”) are employed by Meijer, Inc.

(“Meijer”), a large supermarket chain based in Grand Rapids,

Michigan. Pursuant to the Labor Management Relations Act, 29

U.S.C. § 141 et seg., Respondents are represented for purposes of

collective bargaining by Petitioner United Food and Commercial

Workers, Local 951, AFL-CIO and CLC. (“Petitioner” or “Local

951.”)

The collective bargaining agreement negotiated by Meijer and

Local 951 contains a “union security clause.” This clause requires

all covered employees to either join the union or pay a “service fee”

as a condition of employment. However, this clause does not

mention or in any way specify how Local 951 will deal with

nonmember employees (like Respondents Mulder, Buck and

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Gibbons) who object to the use of their service fees for nonrepresen-

tational purposes, or how the union will calculate a reduced fee for

those employees, as required by Communications Workers v. Beck,

487 U.S. 735 (1988).

Respondents were formerly members of Local 951, but each

resigned in 1988 or 1989. Simultaneously with their resignations,

each Respondent notified Local 951 that he objected under Beck to

paying any amount of “service fees” except those used for collective

bargaining, contract administration and grievance adjustment.

In response, Local 951 sent each Respondent its “Service Fee

Rebate Procedure.” (Petition for Certiorari, Appendix at A62-

A68.) In pertinent part, this “Service Fee Rebate Procedure”

creates a non-contractual, non-consensual, internal-union

“arbitration” scheme to determine the chargeable amount of the

“service fee.” It is also critical to note tnat this “Service Fee

Rebate Procedure” is not a part of the Meijer—Local 951 collective

bargaining agreement, but rather was created internally and

unilaterally by Local 951.’

Beginning on November 9, 1988, and at various times since,

Respondents filed several unfair labor practice charges with the

NLRB against Local 95: concerning the legality of the “Service Fee

Rebate Procedure” and the arnount of the “service fees” collected

by Local 951. In those charges, Respondents requested the NLRB,

not Local 951’s internal “arbitrator,” to determine the proper

amount of the service fee that can be required under Beck. After

investigation, the NLRB General Counsel issued formal complaints

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' The differences between the Meijer—Local 951 collective bargaining

agreement and Local 951’s internal “Service Fee Rebate Procedure” are dramatic.

For example, while the voluntary arbitration provisions of the Meijer—Local 951

collective bargaining agreement create both a right of mutual selection of a single

arbitrator and a mutually-selected tripartite “Grievance Adjustment Board,” the

“Service Fee Rebate Procedure” provides no such choices with regard to the

compulsory “arbitration” which Local 951 seeks to foist upon the Respondents and

other nonmembers who object to the amount of the “service fee.”

re

against Local 951, which remain pending at this time before an

administrative law judge.”

After the NLRB complaints were issued, Local 951 actually

invoked against the Respondents the “arbitration” scheme contained

in its “Service Fee Rebate Procedure.” With regard to that

scheme, it is undisputed, and the District Court so found, that: a)

none of the Respondents was given any opportunity to be involved

in the selection of Local 951’s “arbitrators;” b) none of the

Respondents ever consented to the selection of those “arbitrators”

or the rules contained in the “Service Fee Rebate Procedure;” and

c) none of the Respondents agreed to be bound by any decisions

rendered by Local 951’s “arbitrators,” nor did they ever agree that

such “arbitration” decisions would become final and binding so as

to permit the entry of federal court judgments. In short, it is

undisputed—and the District Court so found—that there was no

agreement whatsoever between Local 951 and the Respondents to

arbitrate any dispute and be bound by the result! (Report and

Recommendation of the Magistrate Judge, reprinted in Petition for

Certiorari, Appendix at A32; Decision of the District Court,

reprinted in Petition for Certiorari, Appendix at A21.)

Nevertheless, Local 951 twice sued the Respondents, seeking

to have the federal courts summarily “confirm” the results of those

non-consensual “arbitrations” and turn them into binding judgments

with res judicata and collateral estoppel effect. The NLRB

successfully intervened in the federal court lawsuits, over the

objection of Local 951, and received a partial stay against Local 951.’

* The formal NLRB complaints challenge the legality of many aspects of

Local 951’s “Service Fee Rebate Procedure,” as well as Local 951’s inclusion of

organizing and similar expenses in the chargeable amount of the fee demanded

from the Respondents.

> In its Brief in Support of the Petition for Certiorari at 6, n.1, the Petitioner

misstates one aspect of the proceedings below. Contrary to the statement of the

Petitioner, the NLRB successfully sought to stay Local 951’s lawsuits. (Appendices

A and B.) It was only the Respondents’ ultimately successful Motion for Summary

Judgment which actually proceeded further in the District Court.

a

On Respondents’ Motion for Summary Judgment, the

Magistrate Judge and the District Court refused to confirm Local

951’s “arbitrations,” holding that the federal courts had no

jurisdiction to enforce such non-consensual, non-contractual,

internal-union proceedings. A unanimous panel of the Sixth

Circuit affirmed, and Local 951’s Petition for Rehearing and

Rehearing en banc was denied, with no judge in active service

voting to rehear the case.°

REASONS FOR DENYING THE WRIT

THE LOWER COURTS WERE CORRECT IN REFUSING TO

CONFIRM LOCAL 951’°S TWO NON-CONTRACTUAL, NON-

CONSENSUAL, INTERNALLY GENERATED

“ARBITRATIONS” AND TURN THEM INTO BINDING

JUDGMENTS. IT IS UNDISPUTED THAT THERE WAS NO

AGREEMENT BETWEEN LOCAL 951 AND THE

RESPONDENTS TO ARBITRATE ANY DISPUTE AND BE

BOUND BY THE RESULT, AND THUS NO LEGITIMATE

ARBITRATION AWARDS TO CONFIRM.

A.) The Lower Courts Were Absolutely Faithful To This

Court’s Precedents.

It is undisputed that there was no agreement between Local 951

and the Respondents to arbitrate and be bound by the result.

(Report and Recommendation of the Magistrate Judge, reprinted in

Petition for Certiorari, Appendix at A32; Decision of the District

Court, reprinted in Petition for Certiorari, Appendix at A2i). That

single fact is determinative, for this Court has long held that the

sine qua non of any enforceable arbitration award is agreement and

* The Report and Recommendation of the Magistrate Judge is unofficially

reported at 141 L.R.R.M. (BNA) 2449 (W.D. Mich. 1992). The decision of the

District Court is officially reported at 812 F. Supp. 754 (W.D. Mich. 1993).

* The decision of the Court of Appeals for the Sixth Circuit is officially

reported at 31 F.3d 365 (1994).

+P

consent among the parties to subject their dispute to arbitration and

be bound by the result. United Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960).

The Congress ... assigned to the courts the duty of

determining whether the reluctant party has breached his

promise to arbitrate. For arbitration is a matter of

contract and a party cannot be required to submit to

arbitration any dispute which he has not agreed to submit.

Yet, to be consistent with congressional policy in favor of

settlement of disputes by the parties through the machinery

of arbitration, the judicial inquiry under § 301 must be

strictly confined to the question whether the reluctant party

did agree to arbitrate the grievance or did agree to give

the arbitrator power to make the award he made.

Id. at 582 (emphasis added); AT&T Technologies v. CWA, 475 U.S.

643, 648-49 (1986) (reaffirming Warrior & Gulf Navigation Co..,

and holding that “arbitrators derive their authority to resolve

disputes only because the parties have agreed in advance to submit

such grievances to arbitration”); Gateway Coal Co. v. Mine

Workers, 414 U.S. 368, 374 (1974) (“No obligation to arbitrate a

labor dispute arises solely by operation of law”); Gilmer v.

Interstate/Johnson Lane Corp., ____ U.S. __, 111 S. Ct. 1647

(1991); Litton Financial Printing v. NLRB, __U.S.__, 111S. Ct.

2215, 2222-2223 (1991) (“We reaffirm today that under the NLRA

arbitration is a matter of consent, and that it will not be imposed

upon parties beyond the scope of their agreement.... [T]he statutory

policy [of the NLRA is] that arbitration is not compulsory.”)

Local 951’s Petition fails to cite, let alone distinguish, this

Court’s many governing precedents upon which the Magistrate

Judge, District Judge, and Sixth Circuit expressly relied in refusing

to confirm the non-contractual, non-consensual, internal-union

“arbitrations.” Instead, Local 951 relies upon a series of “naked

ipse dixits” (Report and Recommendation of the Magistrate Judge,

reprinted in Petition for Certiorari, Appendix at A32) to ignore and

obscure this Court’s very consistent holdings that “arbitration is a

matter of contract and a party cannot be required to submit to

x

arbitration any dispute which he has not agreed to submit.” United

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. at 582.

Local 951 clouds the real issue—whether two non-consensual

“arbitrations” may be summarily confirmed and turned into binding

federal court judgments—by cleverly insinuating that its lawsuits

against Respondents actually concern the enforcement (or arise

under the “penumbras”) of the collective bargaining agreement

negotiated between itself and Meijer. (Petition for Certiorari at 13-

14.) The reality is that Local 951’s quixotic lawsuits to confirm its

non-consensual, non-contractual “arbitrations” do not arise from or

in any way implicate the Meijer—Local 951 collective bargaining

agreement (or any other “contract” as defined by § 301, 29 U.S.C.

§ 185, or the Federal Arbitration Act), but rather arise solely from

the internal-union “Service Fee Rebate Procedure.”

The arbitrations at issue did not arise from a

collective bargaining agreement or any other agreement

between [Local 951] and [the Respondents] but rather

from the internal-Union Procedure. The internal

Procedure was unilaterally instituted by the Union and was

not the subject of an agreement between the Union and the

employees. Thus, the Procedure did not contemplate or

include an agreement by [the Respondents] to arbitrate

their disputes with the Union. Absent such an agreement,

the arbitrators’ judgments cannot be enforced by this

Court.

(Opinion of the District Court, reprinted in Petition for Certiorari,

Appendix at A23.)

Furthermore, Local 951’s lawsuits do not require any interpre-

tation, review or enforcement of the Meijer—Local 951 collective

bargaining agreement, since that collective bargaining agreement

and its union security clause are silent concerning how Local 951

will deal with nonmember employees who object to the use of their

service fees, or how the union will calculate a reduced fee for those

employees as required by Beck. As such, the mere existence of that

collective bargaining agreement provides no jurisdictional basis for

at.

the confirmation of the two non-consensual, non-contractual

“arbitrations” at issue in this case. While Local 951 struggles

mightily to make its confirmation lawsuits appear to be nothing

more than routine disputes arising under the Meijer—Local 951

grievance and arbitration clause—and thus within the “penumbras”

of § 301—nothing could be further from the truth. The Respon-

dents’ Beck objections were not processed under the terms of the

Meijer—Local 951 collective bargaining agreement, but rather under

Local 951’s “Service Fee Rebate Procedure” only. (Opinion of the

District Court, reprinted in Petition for Certiorari, Appendix at

A23.)

In short, the decisions of the Magistrate Judge, District Judge

and Court of Appeals were faithful to this Court’s longstanding

precedents upholding arbitrations only where the parties have

consented to such a process and agreed to be bound by the result.

This case provides the Court with no reason to deviate from its

longstanding precedents.

B.) This Court Has Recognized That Employees Challenging

A Union’s Agency Fee Seizures May Choose From

Several Different Fora To Protect Their Rights.

In Beck, this Court specifically held that nonmember employees

have an absolute right to challenge a union’s agency fee seizures

before either the NLRB or the federal courts. Beck, 487 U.S. at

742-45. Nothing in Beck (or this Court’s earlier cases such as

Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and

Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986)) supports

the notion that the mere existence of a union security clause in a

collective bargaining agreement enables a union to compel a

nonmember to use a separate, non-contractual, non-consensual,

internal-union procedure as his exclusive means of challenging the

agency fee seizures. The Sixth Circuit properly construed Beck and

Hudson to require only that informal procedures be made available

to nonmember employees, not that the employees use them as an

exclusive forum. (Decision of the Sixth Circuit, reprinted in

~ e

Petition for Certiorari, Appendix at AS, citing Hudson, 475 U.S. at

308.)

Moreover, it is not a novel concept in labor law that employees

may freely choose from among several “tracks” to protect them-

selves from unlawful union conduct. In Vaca v. Sipes, 386 U.S.

171 (1967), this Court held that employees have the right to litigate

duty of fair representation claims in either the NLRB’s forum or

separately, in federal court. Here, the Respondents made their

choice—the NLRB—and Local 951 does not like it, particularly

since the NLRB has agreed with the Respondents and issued formal

complaints challenging several aspects of Local 951’s procedures

and seizures. See note 2, infra.

Under the principles of Beck and Vaca v. Sipes, however,

Local 951 cannot suddenly thrust its own internal, non-consensual

“forum” in front of the Respondents and by doing so invalidate the

choice-of-forum that they had previously made. Given the fact that

Respondents chose to place the underlying statutory, duty of fair

representation and Beck issues before the NLRB, Local 951’s

internal “arbitrations” and subsequent lawsuits are little more than

procedural maneuvers designed to trump the NLRB and bully the

Respondents and their fellow employees.°

A careful review shows Local 951’s position to be curiously

self-contradictory. At the outset, Local 951 innocently claims that

its “Service Fee Rebate Procedure” contains an appeal mechanism

“which may be invoked by non-Union, bargaining unit members

who object to the Union’s calculation of the chargeable portion of

the service fee.” (Petition for Certiorari at 5.) Stated this way,

* Respondents submit that few of their fellow employees will have the

fortitude to object to Local 951’s agency fee calculations if the result is that they

must hire a lawyer and annually defend against Local 951’s federal court

confirmation lawsuits. They also believe that Local 951 quite clearly recognizes

the chilling effect of its confirmation lawsuits on nonmembers. See Complete Auto

Transit v. Reis, 451 U.S. 401 (1981) and Building Material & Dump Truck Drivers

v. Traweek, 867 F.2d 500, 507-08 (9th Cir. 1989), which immunized individual

employees from § 301 lawsuits for precisely this reason.

~ e

Local 951 appears to be doing a good thing, by giving the

Respondents an opportunity if they so choose to avoid formal

litigation before the NLRB or the courts. For the remainder of its

Petition, however, Local 951 retreats to ipse dixits and insists that

the Respondents have no choice at all—they are compelled by some

mysterious legal force (or “penumbras”) to use only the internal-

union “arbitration” procedure, whether or not they have previously

chosen another forum, such as the NLRB. To make matters worse

for the Respondents, Local 951’s brand of compelled “arbitration”

automatically converts into a binding federal court judgment.

The Magistrate Judge precisely summarized the error in Local

951’s position and his words bear repeating. He stated:

By analogy to [Chicago Teachers Union v.] Hudson, ...

the Union argue[s] (although Beck never addressed the

question) that it was obliged to grant objecting nonmem-

bers an internal procedure, just as a public-sector union is

required to do, to resolve fee disputes. From this assump-

tion, the Union leapt to the conclusion that the outcome of

the procedure would support a judgment of the court.

In so arguing, the Union mistook duty for power. By

analogy to Hudson, the Union has a duty to provide

nonmembers with an impartial forum for resolving fee

disputes. The Union has yet to point to any source of

power to coerce nonmembers to avail themselves of such

a forum if they are unwilling to do so, such that the result

of the proceeding will support a judgment.

(Report and Recommendation, reprinted in Petition for Certiorari,

Appendix at AS1, emphasis in original.)

The Magistrate Judge’s analysis of Local 951’s position and its

lack of legal support in this Court’s cases was flawless. None of

the decisions protecting the right of employees to refrain from

funding a union’s political and non-collective bargaining agenda

supports the Kafkaesque “logic” that they are compelled to

“arbitrate” even when they have not agreed to be bound and

. 2

steadfastly refuse to do so. Hudson, 475 U.S. at 308 n.21

(“arbitrator’s decision would not receive preclusive effect...”);

Tierney v. City of Toledo, 917 F.2d 929, 939-40 (6th. Cir. 1990)

(striking down provision in union rebate plan requiring “exhaustion”

of internal-union procedures); Hohe v. Casey, 956 F.2d 399, 408-09

(3d Cir. 1992) (while union may have a duty to provide an internal

procedure as an alternative to litigation, there is no requirement that

employees actually use it); Abrams v. CWA, 818 F. Supp. 393

(D.D.C. 1993) (same).

In short, nonmember employees have several fora from which

to choose in challenging a union’s agency fee seizures, and it is

their choice, not the union’s, which governs. For this reason, Local

951’s attempt to foist its internal “arbitration” forum upon the

Respondents must fail!

C.) This Case Presents No Issue That Would Warrant The

Issuance Of The Writ.

Absent from Local 951’s Petition for Certiorari is any discus-

sion of a conflict among the circuit courts with regard to the issues

presented in this case, because none exists! Indeed, the only other

federal decisions directly applying this Court’s arbitration precedents

to the agency fee context wholeheartedly agree with the result

reached here. Hohe v. Casey, 956 F.2d at 408-09; Abrams v.

CWA, 818 F. Supp. at 406-07.

Nor does Local 951 cite any overriding public policy reason for

this Court to grant review in this case. The Court’s precedents

rejecting compelled “arbitration” are clear and unmistakable. No

public policy interest is served by forcing non-consenting employees

to utilize an internal-union procedure as the sole and exclusive

forum to protect their rights under Beck and the duty of fair

representation.

Local 951 attempts to pander to this Court by arguing that “the

floodgates” will open unless this Court condemns nonmembers to

non-consensual internal-union fora. (Petition for Certiorari at 11.)

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This argument is remarkable, for it is Local 951 which apparently

intends to annually re-file its “confirmation” lawsuits ad nauseam.

In contrast, most of the legal issues raised by the Respondents in

their NLRB filings (e.g., whether organizing expenses are

chargeable) should not recur once authoritatively decided. So who

is flooding the courts, nonmember employees like the Respondents

or Local 951?

In any event, Beck unequivocally permits nonmember

employees to raise their claims before either the NLRB or the

federal courts. The courts can easily decide those Beck cases that

come before them, and indeed, have a duty to do so. Arguments

concerning a “flood”—to alarm the Court into mandating use of

non-consensual, non-contractual, internal-union “arbitrations” —are

misleading and wrong. Moreover, the Due Process Clause as well

as Article III of the Constitution would be violated if such non-

consensual “arbitrations” were mandated and given the force of law.

CONCLUSION

The Petition should be denied; alternatively, this Court should

grant the Petition and summarily affirm the decision of the Court of

Appeals.

Glenn M. Taubman

National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

Attorney for Respondents

January 13, 1995

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APPENDIX A

ORDER OF THE MAGISTRATE JUDGE OF THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

December 9, 1991

- la-

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LOCAL 951 UNITED FOOD AND [File & Clerk’s

COMMERCIAL WORKERS, stamp omitted

AFL-CIO, in printing]

Plaintiff, Case No. 1:9lcv 623

V. Honorable Douglas W.

Hillman

PHILLIP MULDER, et al.,

)

)

)

)

)

)

)

)

)

)

Defendants. )

)

ORDER ALLOWING INTERVENTION OF

NATIONAL LABOR RELATIONS BOARD AND

STAYING PROCEEDINGS IN PART

The National Labor Relations Board (NLRB) has moved for

leave to intervene as a party defendant in the captioned case. The

NLRB has also moved to stay all proceedings in this action until

resolution of unfair labor practice charges against plaintiff

presently pending before the NLRB. Plaintiff opposes both

motions; defendants do not oppose intervention but oppose the

stay. The court conducted a hearing on both motions on December

9, 1991, and set forth oral findings and conclusions for the record.

For the reasons set forth on the record:

IT IS ORDERED that the motion for intervention of the

National Labor Relations Board (docket # 19) be and hereby is

GRANTED, the court finding that the NLRB meets the require-

ments of Fed. R. Civ. P. 24(b) for permissive intervention.

Intervening defendant NLRB is granted 60 days in which to file its

answer or other responsive pleading.

« 2a -

IT IS FURTHER ORDERED that the motion of the NLRB for

stay (docket # 20) be and hereby is GRANTED IN PART and

DENIED IN PART. All proceedings in this action are hereby

stayed except for proceedings on the pending motion of defendants

(docket # 6) for dismissal or for summary judgment. With regard

to that motion, plaintiff is hereby granted ten days in which to file

a supplemental brief opposing the motion. Defendants are granted

ten days after service of plaintiff's supplemental brief in which to

respond. NLRB may, if it so desires, file a brief setting forth its

position within the time allowed to defendants herein. Plaintiff and

defendants may respond to any submission of the NLRB within ten

days after service. All briefs filed hereunder shall not exceed ten

pages in length. The court hereby notifies the parties that it elects

to treat defendants’ motion as a motion for summary judgment, as

both plaintiff and defendants have submitted matter outside the

pleadings. See Fed. R. Civ. P. 12(b)(6).

IT IS FURTHER ORDERED that the denial of NLRB’s

motion for a complete stay is without prejudice, and that the NLRB

may renew its motion if defendants’ motion for summary judgment

is denied.

DONE AND ORDERED this 9th day of December, 1991.

/s/

Joseph G. Scoville

U. S. Magistrate Judge

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APPENDIX B

eS

ORDER OF THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

March 3, 1992

_ ~

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED FOOD & COMMERCIAL [File & Clerk’s

WORKERS LOCAL 951, stamp omitted

in printing]

Plaintiff,

-VS- Case No. 1:91-cv-623

PHILIP MULDER, CHARLES

BUCK, AND LEON GIBBONS,

Defendants,

and

NATIONAL LABOR RELATIONS

BOARD,

Intervenor.

ORDER OVERRULING OBJECTIONS AND

AFFIRMING MAGISTRATE JUDGE’S

DECEMBER 9, 1991 ORDER

In accordance with the opinion issued today,

IT IS ORDERED that the United Food & Commercial

Workers, local 951’s objections (Docket # 31) to United States

Magistrate Judge Joseph G. Scoville’s order of December 9, 1991

are OVERRULED.

- 4a -

IT IS FURTHER ORDERED that United States Magistrate

Judge Joseph G. Scoville’s order of December 9, 1991 (Docket

# 29) is AFFIRMED.

/s/

Douglas W. Hillman

Senior Judge

Dated: MAR 3 1992