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June 22, 1981

Raymond T. KOLINSKE, Plaintiff,
William A. LUBBERS, n* et al., Defendants.

The opinion of the court was delivered by: GREEN


This matter is before the Court on the motion of the defendants, William A. Lubbers, General Counsel of the National Labor Relations Board (hereinafter the "General Counsel" and the "N.L.R.B.") and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (hereinafter "UAW"), to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Alternatively, the General Counsel has moved for summary judgment.

 The facts alleged in the complaint, taken as true for purposes of the motions to dismiss, reflect that the plaintiff is a long time employee of the McLaughlin Company at its Petoskey, Michigan plant. The McLaughlin Company, an "employer" as defined in 29 U.S.C. § 152(2) and therefore subject to the jurisdiction of the N.L.R.B., has for many years recognized Local 1669 of the UAW as the exclusive bargaining agent for many of its employees. The plaintiff, however, has not ever been a member of either Local 1669 or the UAW, but works in the bargaining unit represented by Local 1669.

 Local 1669 and the McLaughlin Company, in 1975, entered into a collective bargaining agreement containing a provision creating an "agency shop," *fn1" which required the plaintiff, as an employee in the unit represented by Local 1669, to pay fees to Local 1669 equivalent to union dues as a condition of employment. *fn2" The plaintiff paid the required fees to Local 1669 during the duration of the bargaining agreement.

 While this agreement was in effect (and now), Article 16 of the UAW's Constitution required that 30% of members' dues be placed in the UAW strike insurance fund. The UAW treated plaintiff's fees in a similar fashion, apportioning 30% for placement in the fund from which strike benefits were paid to employees.

 The 1975 agreement expired in the spring of 1978 and Local 1669 went on strike, establishing a picket line at the Petoskey plant of the McLaughlin Company. Plaintiff, though not a union member, honored the picket line and did not work during the strike at the Petoskey facility.

 The UAW paid strike benefits to members of Local 1669 who performed picket line or other strike duties, but when plaintiff applied for such benefits, the UAW refused payment on the ground that he had not performed picket line or other strike duties.

 During the 1978 strike (and at the present time), the UAW Constitution provided in Article 8, Section 20 that:

Non-members covered by an agency shop clause in a UAW contract shall receive all the material benefits to which members are entitled but shall not be allowed other membership participation in the affairs of the union.

 A 1962 interpretation of this section issued by the UAW International Executive Board declared:

Such non-members shall not be allowed attendance at Union meetings, the right to hold or run for any Union office (elected or appointed) or any voting rights within the Union unless and until they have become members of the Union in accordance with the provisions of this Constitution.

 The 1978 strike ended when Local 1669 and the McLaughlin Company reached accord on a new collective bargaining agreement, which included an agency shop provision similar to that clause executed in the 1975 agreement.

 After the UAW rejected plaintiff's demands for strike benefits, he filed on July 11, 1978 an unfair labor practice charge with the Regional Director of the N.L.R.B."s 7th Region, alleging that the UAW's denial of strike benefits violated Section 8(b)(1)(A) of the National Labor Relations Act (hereinafter the "NLRA"), 29 U.S.C. § 158(b)(1)(A). *fn3" On August 28 the Acting Regional Director refused to issue a complaint, and two months later plaintiff's appeal was denied.

 On September 13, 1978, plaintiff brought another charge against the UAW and Local 1669, claiming that the continued collection of fees from the plaintiff by Local 1669 and the UAW, a portion of which is expended on programs unavailable to the plaintiff, violated § 8(b)(1)(A). On October 26, the Regional Director decided not to issue a complaint and on October 31, plaintiff's appeal of this decision was denied.

 Plaintiff later instituted this action, contending that the General Counsel infringed plaintiff's right to refrain from associational activity, guaranteed by Section 7 of the NLRA, and the First Amendment to the Constitution; and his right not to be deprived of property without due process of law, guaranteed by the Fifth Amendment to the Constitution. Against the UAW, plaintiff alleges a breach of the duty of fair representation in that the Union engaged in conduct which was arbitrary, discriminatory, unconstitutional, and in bad faith.

 Plaintiff seeks a writ of mandamus directing the General Counsel to issue complaints charging unfair labor practices against Local 1669 and the UAW for their failure to pay him strike benefits unless he participates in picketing and for their collection of fees allocated to be spent on programs in which he may not participate. Pending the completion of proceedings on these complaints, plaintiff seeks a stay in the action against the UAW. Were the relief against the General Counsel not granted, plaintiff seeks against the UAW either a refund of 30% of his fees paid from 1975-1978 or an award of the full amount of strike benefits for the 1978 strike and any that might result in the future, provided he honors the picket line.

 The first question demanding resolution is whether there is jurisdiction to entertain plaintiff's request for a writ of mandamus ordering the General Counsel to issue an unfair labor practice complaint. Under Section 3 of the NLRA, 29 U.S.C. § 153, the General Counsel is vested with "final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under (Section 10 of the NLRA, 29 U.S.C. § 160 (procedures for unfair labor practice complaints))." This section has been uniformly interpreted to grant unreviewable discretion to the General Counsel. See Detroit Edison Co. v. N.L.R.B., 440 U.S. 301, 316, 99 S. Ct. 1123, 1131-32, 59 L. Ed. 2d 333 (1979) (the General Counsel can "in his unreviewable discretion refuse to issue ... a complaint."); Vaca v. Sipes, 386 U.S. 171, 182, 87 S. Ct. 903, 912, 17 L. Ed. 2d 842 ("the Board's General Counsel has unreviewable discretion to refuse to institute an unfair labor ...

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