Kellogg Company

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IN THE MATTER OF KELLOGG COMPANY, ET AL.

Docket 8883. Interlocutory Order, Sept. 13, 1978 Affirmance of ALJ’s order denying intervention and allowing filing of amicus curiae brief.

Order AFFIRMING ORDERS OF THE ADMINISTRATIVE LAW JUDGE On July 10, 1978, having been granted an extension of time, the American Federation of Grain Millers (AFL-CIO) (“International Union”) filed an Application for Review from the Administrative Law Judge’s denial of their Motion to Intervene. The Application was filed pursuant to Rule 3.23(a) of the Commission’s Rules of Practice.

The complaint in this matter was filed over six years ago on April 26, 1972. As part of the relief, should a violation be found, it has been proposed that five corporate entities be divested or “spun-off’ from the various respondents. Because the newly created entities would not be legally bound to hire the employees currently working for the respondents, nor be bound to adopt, preserve or maintain the level of benefits in the collective bargaining agreements, the International Union requests intervention.

Section 5(b) of the Federal Trade Commission Act and Rule 3.14 of the Commission’s Rules of Practice provide for the intervention by any person, partnership, or corporation “upon good cause shown.” Both provisions “clearly reflect the fact that intervention in Commission adjudications is a matter of privilege, and that its grant ‘or denial is a discretionary matter, to be decided on the basis of the particular facts and circumstances involved in each case in which intervention is sought.” Firestone Tire & Rubber Co., T7 F.T.C. 1666, 1668 (1970).

As was noted by Judge Hinkes, the issue before us is similar to that in Heublein, Inc., 82 F.T.C. 1826 (1973), in which the Allied Grape Growers sought to intervene for purposes of protecting their interests in a joint venture agreement with Heublein. Though we noted that Allied’s contractual relations might be adversely affected by the outcome of the Commission’s proceeding, we held there that Allied’s concerns dealt primarily with the issue of relief rather than the issue of liability, and so limited their participation. Insofar as Allied’s interests related to the competitive questions at stake in the Interlocutory Order 92 F.T.C.

proceeding, we concluded that its interests would be adequately represented.

We see no reason for different treatment here. Indeed, depending on the outcome of the litigation, the International Union’s concerns may prove to be premature. Rather than delay a proceeding which has been in progress for six years, Judge Hinkes has correctly provided for the filing of an amicus brief. In this way he and the Commission can have the benefit of the International Union’s views, if the need arises, without complicating or delaying the proceedings. The International Union also argues that under Rule 24 of the Federal Rules of Civil Procedure and Pepsico v. Federal Trade Commission, 472 F.2d 179 (2d Cir. 1972), there is an absolute right to intervene. However, even assuming the applicability of the principle underlying Rule 24 to our proceedings, we see no basis for reaching a -result different from that which obtains under the Commission’s rules.

While the Commission recognizes the importance of the matters raised by the International Union, the interest which the International Union seeks to assert, i.e, that of employment rights and benefits under the collective bargaining agreement, is in no way related to the alleged antitrust liability of respondents and is therefore not the proper subject for intervention. Accordingly, It is ordered, That the Administrative Law Judge’s Order Denying Motion to Intervene and Allowing the Filing of an. Amicus Curiae Brief be, and the same hereby is, affirmed. Commissioner Pitofsky did not participate. USLIFE CKBUIL CUnr. bi AL. | uuu 353 Opinion