author: SETH, Circuit Judge.

text:
    AMOCO PIPELINE COMPANY, a corporation, Plaintiff-Appellee, v. ADMIRAL CRUDE OIL CORPORATION et al., Defendants-Appellees, v. TULSA CRUDE OIL PURCHASING COMPANY, Defendant-Appellant.
    No. 73-1206.
    United States Court of Appeals, Tenth Circuit.
    Jan. 8, 1974.

      Irvine E. Ungerman, of Ungerman, Grabel & Ungerman, Tulsa, Okl. (James 0. Ellison, of Boone, Ellison & Smith, Tulsa, Okl. and David F. Boyd, Jr., Albuquerque, N.M., with him on the brief), for appellant.
    Harold L. Hensley, Jr., of Hinkle, Bondurant, Cox & Eaton, and Roger L. Copple, of Jennings, Christy & Copple, Roswell, N.M. (Wm. B. Browder, Jr., Robert C. Bledsoe, and Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, Tex., with them on the brief), for appellees.
    Before MURRAH, SETH and DOYLE, Circuit Judges.
   SETH, Circuit Judge.

The plaintiff-appellee, Amoco Pipeline Company, a common carrier of crude oil, filed an interpleader suit in the United States District Court for the District of New Mexico under 28 U.S.C. § 1335. The defendants included Tulsa Crude Oil Purchasing Company and its subsidiary, Admiral Crude Oil Corporation. Involuntary petitions in bankruptcy had been filed in Oklahoma and in Texas against both corporations, and their respective trustees were named as defendants. Admiral Crude Oil Corporation had been purchasing crude oil in New Mexico from the producer parties to the inter-pleader, and it was being transported to Admiral by Amoco under its regular tariffs.

The plaintiff carrier tendered into the New Mexico court proceeds from the sale of crude oil, and also crude oil in storage which had been received from the producers for transportation to Admiral as the purchaser. The plaintiff asked that the defendants be required to assert their several claims thereto; furthermore the plaintiff was asserting a lien thereon for transportation and de-murrage charges.

The trustee for Tulsa Crude appeared in the New Mexico court and asked that the interpleader proceedings be stayed for the reason that the reorganization court in Oklahoma had previously issued an order that litigation involving Tulsa Crude or its assets be enjoined and restrained. The New Mexico court denied the stay, decided the merits, and rendered a judgment adverse to the position advanced by the trustee. This appeal was then taken.

The issues on appeal relate to the jurisdiction of the interpleader court in New Mexico as against the jurisdiction of the Oklahoma reorganization court as advanced by the trustee. These issues in turn concern New Mexico law governing possession of, and title to, the crude being transported.

Prior to February 1, 1972, the oil producers delivered crude oil to Amoco for transmission to Admiral. From November 1971 through January 1972, Admiral did not pay Amoco its regular, published charges for the gathering, transporting, and storing of crude oil. Amoco therefore asserted a claim of lien against 49,953.98 barrels of crude oil which it had received from the producing defendants and which were in Amoco’s possession in its storage facilities in Lea County, New Mexico. Admiral was given notice of this fact.

On February 10, 1972, Amoco tendered the crude oil to Admiral conditioned on payment of its lien claim; Admiral refused to pay the lien claim and refused to accept the oil, which remained thereafter in Amoco’s Lea County, New Mexico, storage facilities.

On February 16, 1972, Tulsa Crude was adjudicated bankrupt in the Oklahoma court, and on March 7th, the court accepted the corporation for reorganization under Chapter X and entered the usual injunctive order against actions against the corporation or its property. On February 23, 1972, Admiral was adjudicated a bankrupt in the Northern District of Texas and later (September 21st) the court transferred the proceedings to the Oklahoma court where the proceedings concerning the parent corporation, Tulsa Crude, were pending.

Prior to February 10, 1972, the oil producers discovered that Amoco had received oil from them for Admiral when Admiral was insolvent; the checks which had been tendered to the oil producers by Admiral in payment for oil sold to it in December 1971 were dishonored by the drawee bank and returned marked “insufficient funds.” The oil producers therefore notified Amoco and other interested parties to stop delivery of crude oil to or for the benefit or account of Admiral, thus exercising a right of stoppage in transitu and reclamation. Amoco notified the producers that it would enforce its lien against the oil in its possession as Admiral had refused to pay the lien claim and accept delivery of the oil.

Amoco thereafter sold 13,000 barrels of crude oil which it had in its possession on March 15, 1972, to satisfy its common carrier lien against Admiral of $39,564.52, and continued to assert a lien against the balance of the proceeds of sale and 36,953.98 barrels in storage for unpaid demurrage and storage charges against Admiral.

The New Mexico court found that at all material times the crude oil, or the proceeds from its sale, was in the sole and exclusive possession of Amoco, the carrier, or in the registry of the court. This finding is supported by the record.

The jurisdiction of the reorganization court arises from jurisdiction over the debtor, and its property. 11 U.S.C. §§ 511-516.

On the other hand, the New Mexico court had “jurisdiction to decide whether the case [is] properly before it,” United States v. Shipp, 203 U.S. 563, 573, 27 S.Ct. 165, 166, 51 L.Ed. 319 (1906); United States v. Mine Workers, 330 U.S. 258, 291, 67 S.Ct. 677, 91 L.Ed. 884 (1947). In the ease at bar, the New Mexico district court necessarily had to consider the merits of at least one portion of the case before it. It had to decide who had posssession, and who had title, to the oil in issue, in order to ascertain if it had jurisdiction of the case and whether it should stay its proceedings. Thus as often happens, a determination of jurisdiction necessarily also decides a substantive issue. See Buss v. Long Island Storage Warehouse Co., 64 F.2d 338, 339 (2d Cir.).

As decided' by the district court, the sale of the crude oil by the producers was a sale of goods, N.M. Stat.Ann.1953, § 50A-2-105(l) (Repl. 1962), and was thus governed by Article 2 of the Uniform Commercial Code, N. M.Stat.Ann.1953, §§ 50A-2-101 to 50A-2-725 (Repl.1962, Supp.1973); N.M. Stat.Ann.1953, § 50A-2-102 (Repl.1962). If the Uniform Commercial Code is applied, Admiral, when it refused on February 10, 1972, to accept the tender of the crude oil from Amoco conditioned upon payment by Admiral of Amoco’s common carrier lien, caused thereby title to the oil to revest, if indeed it ever passed to Admiral, in the oil producing sellers. Section 2-401(4). Similarly, upon the notice given by the sellers to Amoco, prior to February 10, 1972, to stop delivery of the crude oil to Admiral based upon the previous dishonoring by the drawee bank of Admiral’s “insufficient funds” checks to the sellers, the sellers thereby timely exercised their rights of stoppage in transitu under sections 2-702 and 2-705. Thus, regardless of whether title ever passed to Admiral (section 2-401; Evans Products Co. v. Jorgensen, 245 Or. 362, 421 P.2d 978, 980), or whether it had a special property interest in the oil, section 2-501, the sellers could reclaim the oil upon demand and notice to Amoco as given herein. Sections 2-702(1), (2) and 2-705(1). This was effective for several reasons. The trial court found, and it is borne out by the record that the tender of the “insufficient funds” checks constituted a written misrepresentation of solvency. Theo. Hamm Brewing Co. v. First Trust & Savings Bank, 103 Ill.App.2d 190, 242 N.E.2d 911. From the record it is clear, as the trial court found, that the oil at all material times was in possession of a third party, the carrier. Thus Admiral never had possession, constructive or otherwise, of the oil and under the above-cited provisions of New Mexico’s Uniform Commercial Code even if it could be said to have had constructive possession, it did not so have it after February 10, 1972, when Admiral refused tender of the oil and the sellers exercised their rights of stoppage of delivery in transitu and reclaim. The same considerations govern the question of Admiral’s “property” or “title” in the oil. The bankruptcy petition was filed, at the earliest, on February 16, 1972, so that upon the date of filing, the title to the oil was not in Admiral. It was not the “property” of the debtor. The Oklahoma district court’s stay order thus could not reach the oil, not in the debt- or’s possession nor its property. 11 U. S.C. § 511. Likewise the New Mexico district court’s exercise of jurisdiction and refusal to stay its proceedings was correct. 28 U.S.C. § 1335. By the same token, so long as Amoco retained possession of the oil or the proceeds, and so long as the proceeds were in the registry of the New Mexico district court, the New Mexico proceeding was not to “enforce a lien upon the property of the debtor" under 11 U.S.C. § 516(4).

Accordingly, the judgment of the district court is in all respects affirmed.


source: Caselaw Access Project

author: McCREE, Circuit Judge.

license: Public Domain

text:
    HARLAN #4 COAL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1997.
    United States Court of Appeals, Sixth Circuit.
    Argued June 9, 1973.
    Decided Jan. 10, 1974.

      John E. Jenkins, Jr., Jenkins, Schaub & Fenstermaker, Huntington, W. Va„ on brief for petitioner.
    Fredric Sagan, N. L. R. B. for respondent; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Attys., N. L. R. B., Washington, D. C., on brief.
    Before WEICK, EDWARDS and Mc-CREE, Circuit Judges.
   McCREE, Circuit Judge.

This petition for review of an order of the National Labor Relations Board by the Harlan #4 Coal Company and the cross-application for its enforcement by the Board require us to determine whether there is substantial evidence on the record as a whole to support the Board’s determination that the company’s refusal to bargain with its employees’ certified bargaining agent was an unfair labor practice in violation of sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5), (l). We hold that there is.

The events culminating in this appeal began over three years ago on May 28, 1970, when a majority of the employees of the Harlan #4 Coal Company (the company) voted against having the United Mine Workers of America (the union) act as their exclusive bargaining representative. The union filed with the National Labor Relations Board timely objections to the election alleging that the company’s improper conduct during the election campaign invalidated the result. On February 23, 1971, a hearing officer found that the company had engaged in improper conduct and recommended that the election be set aside. This determination was affirmed by the Board’s Regional Director and a second election was directed. The company’s request for review by the Board was denied because there were no substantial issues warranting review.

On May 5, 1971, the company filed a motion requesting that a new bargaining unit or different bargaining units be determined in light of changed conditions and circumstances including the closing of one mine and the opening of another. The Regional Director stayed the second election and ordered a hearing to determine the appropriate bargaining unit. On August 5, 1971, the Regional Director issued an order in which he redefined the appropriate bargaining unit to include all production and maintenance employees working in and around the coal mines of the company and its K.O.K. No. 1, K.O.K. No. 2 and K.O.K. No. 3 division mines. The company did not file a request for review of this redefinition of the unit prior to the second election.

On September 23, 1971, a majority of the company’s employees voted for the union. Shortly thereafter, the company filed four objections to the election contending that: (1) union representatives stationed themselves adjacent to the voting area and gave company employees the impression of surveillance and “checking off”; (2) on the eve of the election the union president sent to company employees a letter containing a material misrepresentation to which the company had no opportunity to respond; (3) the union disseminated false information that the company had coerced and intimidated its employees; and (4) the provision on the election ballot for a “neither” vote to be checked if an employee wanted neither of the two unions participating in the election to represent him was misleading.

The Regional Director, in a supplemental Decision and Certification of Representation determined that the company’s objections were without merit and, on November 15, 1971, certified the United Mine Workers as the exclusive bargaining agent of the company’s employees. The company’s request for review of the certification by the Board was denied on February 2, 1972, because it failed to raise substantial questions warranting review.

Meanwhile, on November 29, 1971, the union had requested the company to bargain. On December 10, the company’s president informed the union that a request for review of the Regional Director’s decision was pending and that the union should call back after the disposition of that request. On December 14, 1971, and again on February 4,. 1972, two days after the Board had refused the requested review, the union requested the company to bargain. These requests were refused.

On February 22, 1972, the union filed with the Board an unfair labor practice charge that the company had refused to bargain with it even though it had been properly certified as the exclusive bargaining agent. On March 29, the General Counsel to the Board issued a complaint and notice of hearing against the company. On April 6, the company answered that it had not refused to bargain and that the election had been conducted in an inappropriate unit. On June 8, the General Counsel filed with the Board a motion for summary judgment against the company. Five days later, the Board issued an order transferring the proceedings to it, and a notice to show cause why the motion should not be granted. On June 23, the company filed a memorandum in opposition to the General Counsel’s motion. The Board held that the issues raised by the company in opposition to the motion either had been or could have been litigated in the prior representation proceeding and therefore could not be reliti-gated in the unfair labor practice proceeding in the absence of newly discovered or previously unavailable evidence. Accordingly, it granted the motion for summary judgment. In its Decision and Order issued on September 18, 1972, 199 NLRB No. 15, the Board found that the company’s refusal to bargain with the union violated sections 8(a)(5) and (1) of the National Labor Relations Act, reaffirmed the certification of the United Mine Workers, and required the company to bargain with it upon request and to post appropriate notices.

In this appeal from that order, the company argues that its refusal to bargain did not constitute an unfair labor practice because the election of September 23, 1971, should have been set aside for two reasons. First, the Regional Director should have held a hearing to determine whether union representatives improperly maintained surveillance of and checked off company employees. Second, the letter sent by the union president to company employees on the eve of the election contained a material misrepresentation to which the company had no opportunity to respond thereby destroying the “laboratory conditions” necessary to a valid election.

In reviewing the decision of the Labor Board, we observe that Congress has entrusted to the Board considerable latitude in resolving disputes concerning representation, and that our task is to determine whether the Board has acted arbitrarily in the exercise of its “wide degree of discretion.” E. g., NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, 180 (6th Cir. 1967) cert, denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364. We also observe that a party objecting to the validity of an election on the grounds of improper pre-election conduct must shoulder a heavy burden of proof to demonstrate by specific evidence that the election was unfair. E. g., NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 5 L.Ed. 2d 455 (1961); NLRB v. Dean Foods Co., 421 F.2d 664 (6th Cir. 1970) cert, denied, 398 U.S. 939, 90 S.Ct. 1843, 26 L.Ed.2d 271.

UNION SURVEILLANCE

In support of its objection that the union engaged in improper surveillance of its employees, the company submitted only a single affidavit by its treasurer, Ralph Fortner, who stated:

As I left the voting place just before 8 o’clock, I noticed that Philpot and Hall, Petitioner representatives, went to an automobile which was parked about 20 feet from where the employees were lining up to vote. The headlights of that car pointed in the direction of the employees. The Petitioner representatives seated themselves inside the car in the front seat and were looking through the front windshield at the employees. I proceeded away from the area with other Employer representatives and walked down a railroad track about 400 to 500 feet. I was concerned as to whether the Petitioner representatives had left the voting area. I climbed up on a coal ear and looked back and saw that the Petitioner representatives were still in the auto where I had previously seen them. This was at approximately 8:10 to 8:15 a. m. From the angle I was looking I could not see any of the voters and they could not see me. I believed by this time most of the employees at the mine had voted. The relationship of the Petitioner representatives to the line of voters was such as to give the clear impression that they had the voting line under surveillance and were checking off voters.

In response, union representatives who were near the polling place submitted affidavits in which they denied any improper conduct and disputed the allegations contained in the company affidavit:

Immediately prior to the opening of the polls we left the voting area and proceeded about 700 yards from the polling place and parked the car in which we were riding. We did not talk to anyone that voted during the period of time the polls were open and didn’t recall that anyone that voted in the election passed our car. The men that voted were practically all at the polls when the polls opened.

The Regional Director declined to hold a hearing to determine whether the union had engaged in improper surveillance. In so doing he relied upon the Board’s decisions in A. D. Julliard and Co., 110 N.L.R.B. 2197, 2199; Belk’s Department Store of Savannah, Ga., Inc., 98 N.L.R.B. 280, 281; and International Stamping Co., Inc., 97 N.L.R.B. 921, 922, .where the Board stated:

Although it is the policy of the Board to prohibit the keeping of any list, apart from the official voting list, of persons who have voted in a Board-directed election in the cases in which this prohibition was enunciated, it was either affirmatively shown or could be inferred from the circumstances, that the employees knew that their names were being recorded by the Employer. In the instant proceeding, there is no such affirmative evidence; nor may any such be inferred from the circumstances in the case. (Footnote omitted).

Observing that the party alleging the objectionable conduct has the duty to furnish evidence that affords a basis for setting aside an election, Felix Bonura Company, 119 N.L.R.B. 1620, and noting the absence of employee complaints of surveillance, the Regional Director found that the company had not adduced any evidence from which he could infer that union representatives either maintained a list of employees or that if such a list had been maintained that employees believed that their names were being recorded at the polling place.

We agree that the company’s affidavit supported a finding only that union representatives were at or near the polling place. Presence alone, in the absence of evidence of coercion or other objectionable conduct, is insufficient to warrant setting aside an election. Choctaw Provision Company, Inc., 122 N.L.R.B. 474; Cooper Supply Company, 120 N.L.R.B. 1023; Houston Shell and Concrete Division, McDonough Company, 118 N.L.R.B. 1511. And since the company’s affidavit, if accepted as true, would not require setting aside the election, no evidentiary hearing was necessary. E. g., NLRB v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245, 249, 250 (5th Cir. 1964); cf. NLRB v. Tennessee Packers, Inc., Frosty Morn Division, supra.

THE MATERIAL MISREPRESENTATION

The alleged material misrepresentation was contained in a letter sent by the United Mine Workers president to company employees on the eve of the election. This letter stated in relevant part:

Since the last election the company has been sold to U.S. Plywood-Champion Paper, Inc. This [is] one of the largest corporations in the world, and can easily pay the union scale. It is reported that they paid five million dollars to Bill Conley and his associates, including Frank Qualls. Don’t be mis-led [sic] by them coming to you now and saying that they are unable to pay the contract. You are aware that your wages are frozen by the action of President Nixon, but if you vote for the United Mine Workers of America, you can get the union contract wages and other conditions. We urge you to think about this for the benefit of yourself and your family.

The company argues on this appeal that this letter deliberately misrepresented that if employees voted for the union they would receive automatically union scale wages even though other persons’ wages were frozen by order of the President. In support of its argument, the company submitted to the Regional Director eight identical employee affidavits which state in relevant part:

I was led to believe that if this union won the election, I would receive at once the present union contract wages and other benefits, although other people’s wages were frozen by President Nixon.
This letter did influence my vote and I make this statement on my own free will with no threats or promises from anyone.

In his decision, the Regional Director refused to accord any weight to these affidavits. Moreover, although he found that the letter “could be subject to the interpretation that if the employees vote for the petitioner, they would avoid the legal effect of the wage freeze,” he refused to set aside the election on this ground. First, he explained, the employees were aware that no wage increase could be obtained unless the company agreed to it in negotiation with the union and the company had indicated to its employees several times that it would not agree to increased wages. Second, he took “official notice of the fact that the Federal Government has widely publicized the Wage and Price Freeze Program and publicized telephone numbers which citizens can call concerning questions as to the effect of the Wage Price Freeze on specific matters.”

Both the failure of the Regional Director to give any weight to the eight identical employee affidavits executed after the election and his decision that the union letter did not constitute a material misrepresentation sufficient to warrant setting aside the election are urged as error before us.

We hold, however, that the Regional Director did not err in refusing to give weight to the eight identical employee affidavits and in finding that the letter did not constitute a material misrepresentation so as to warrant setting aside the election. In making this determination, we are mindful of the dangers of permitting otherwise valid elections conducted by secret ballot to be set aside because some voters, after post-election introspection and in response to inquiry by their employers, believe that their votes may have been improperly influenced or because we believe that campaign speeches may have an impermissible impact on employee free choice.

Our disinclination to find that the Regional Director erred in not permitting statements of voter intention to impeach the validity of secret ballots is consistent with the holding in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). But cf. NLRB v. Donnelly Garment Co., 330 U.S. 219, 67 S.Ct. 756, 91 L.Ed. 854 (1947). In Gissel the Court, in considering whether the validity of union authorization cards could be impeached by testimony of the card signers about their subjective intent for signing the cards, accepted

the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of § 8(a)(1). We therefore reject any rule that requires a probe of an employee’s subjective motivations as involving an endless and unreliable inquiry. Id. at 608, 89 S.Ct. at 1939. (Footnote omitted).

If union authorization cards, often signed in the presence of a union solicitor, may not be impeached by testimony concerning an employee’s subjective motivation there is less reason to permit this evidence to impeach the more reliable evidence of an employee’s intent — his secret ballot. Indeed, in Gissel, the Supreme Court “acknowledged [the] superiority of the election process” in referring to the Labor Board’s policy “that secret elections are generally the most satisfactory — indeed the preferred— method of ascertaining whether a union has majority support.” Id. at 602, 89 S.Ct. at 1934.

Attempts to permit the introduction of such evidence have been spurned by courts before. In NLRB v. Clearfield Cheese Co., 322 F.2d 89 (3d Cir. 1963), for example, the court enforced a bargaining order of the Labor Board based upon findings that a speech and a letter from the employer to his employees conveying a threat that the employer would go out of business if the union prevailed in the election had robbed the employees of free choice. In finding that it was not permissible to allow employees to testify that their vote against the union had not been the result of employer coercion, the court explained:

Nor do we think that the Company’s offer of proof in any particular demonstrates an area for factual inquiry demanding a formal hearing, or even that such a hearing, if had, would bear fruitful results. Indeed, the preferred testimony of some employees (who presumably would testify favorably for the Company) as to their understanding of the speech and letter does not begin to reach the substance of the matter. But such testimony would invite the further inquiry, in this instance, as to the direction of the witness-employees’ thoughts on representation by the Union, or how he cast his vote: an inquiry destructive of the purpose of the secret ballot and creative of the spectre of post-election change of mind. Id. at 93-94.

Our approval of the Board’s determination not to consider employee affidavits does not, however, preclude inquiry into whether the union’s letter constituted a material misrepresentation in violation of the rule established by the Board in Hollywood Ceramics, 140 N.L.R.B. 221 and adopted by this court in NLRB v. Louisville Chair Co., 385 F.2d 922 (6th Cir. 1967) cert, denied 390 U.S. 1013, 88 S.Ct. 1264, 20 L.Ed.2d 163 (1968). In Hollywood Ceramics, where the Board sustained an employer’s objection to an election because the union had, on the eve of the election, distributed misleading comparisons of wages and requisite skills in the employer’s plant and in unionized plants, the Board articulated the following rules for determining when misrepresentation is sufficient to set aside an election:

It is obvious that where employees cast their ballots upon the basis of a material misrepresentation, such vote cannot reflect their uninhibited desires, and they have not exercised the kind of choice envisaged by the Act. For this reason, the Board has refused to certify election results where a party has misrepresented some material fact, within its special knowledge, so shortly before the election that the other party or parties do not have time to correct it, and the employees are not in a position to know the truth of the fact asserted.
We believe that an election should be set aside only when there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. However, the mere fact that a message is inartisti-cally or vaguely worded and subject to different interpretations, will not suffice to establish such misrepresentations as would lead us to set the election aside. But even where a misrepresentation is shown to have been substantial, the Board may still refuse to set aside the election if it finds upon consideration of all the circumstances that the statement would not be likely to have had a real impact on the election. For example, the Board may find that the employees possessed independent knowledge with which to evaluate the statements. 140 N.L.R.B. at 224.

In this case, there is no question that the challenged letter was sent to employees at a time that prevented the company from effectively replying to it. We believe, however, that the Board’s finding that the company’s attack failed on the other grounds necessary for setting aside an election is supported by substantial evidence considering the record as a whole. First, the letter was not susceptible only to the interpretation urged by the company but instead was ambiguous and subject to several interpretations. Therefore it was insufficient to serve as a basis for setting aside the election. Hollywood Ceramics, supra. Second, information about the wage freeze was not within the “special knowledge” of the union but was, on the contrary, readily available to employees.

We agree with the Regional Director that the letter is subject to the interpretation that if company employees voted for the union they would immediately obtain union scale wages. However, the letter is equally subject to the interpretation that the union could obtain for employees contract wages as soon as it was legal to do so — as soon as the freeze was ended. The letter is at worst delphic and inartistic. It may have been intended to persuade employees that a temporary wage freeze should not dissuade them from voting for the union.

Even if the letter is interpreted as the company would have us do, the Board did not err in concluding that the misrepresentation it conveyed did not have a real impact on the election. Information about the wage freeze was not within the special knowledge of the union. It had been widely publicized and debated. And, the federal government had established places where answers to specific questions about the freeze could be obtained. Moreover, the Regional Director found, and his finding is not unsupported, that the employees were aware that any increase in wages would have to be agreed upon by the company and that the company had stated several times that it would not agree to an increase. For all these reasons, the findings of thg Board have evidentiary support and should not be set aside.

This ease is not controlled by Radio Corporation of America, 102 N.L.R.B. 124 (1953), Seneca Knitting Mills, 59 N.L.R.B. 754 (1944), and Continental Oil Co., 58 N.L.R.B. 169 (1944), upon which the company relies. Each of those eases involved an election in which an insurgent union was seeking to unseat an incumbent union and just prior to the election either the company or the incumbent union announced that a contract previously negotiated between them had been approved by the Wage Stabilization Board, an agency authorized to regulate wage increases. These announcements were made by the Board to either the company or the incumbent union in violation of its own rules prohibiting such announcements during the pendency of a representation election. The Board found that this information, to which employees did not have ready access, would have the obvious effect of making employees believe that a vote for the incumbent union would insure the previously negotiated wage increases and that a vote for the insurgent union would nullify the approved contract and perhaps cause employees to lose the approved wage increase altogether.

Nor is this ease similar to Cross Baking Co. v. NLRB, 453 F.2d 1346 (1st Cir. 1971), where the court set aside the Board’s order to bargain because two days prior to the election, the union sent a letter to the employees that contained the misrepresentation that in another plant the union had obtained and the employees had received a wage increase of seventy-five cents per hour when in fact part of the increase had been obtained by another union and the employees had not yet received the entire increase. In that case, the information was within the special knowledge of the union, and the employer had no opportunity to respond to the letter. We also observe parenthetically that the union won the election in that case by one vote.

CONCLUSION

This case requires us to determine whether on the record as a whole there is substantial evidence to support the Board’s determination that the union did not improperly maintain surveillance of employees and that the letter sent by the union to employees was not a material misrepresentation that would require the election to be set aside. Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Cross Co. v. NLRB, 286 F.2d 799, 802, rehearing denied, 288 F.2d 188 (6th Cir. 1961). We observe that this standard of review was not “intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carrying the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” 340 U.S. at 488, 71 S.Ct. at 465.

Our examination of the entire record discloses that there is no factual dispute that union representatives, although present during polling, did not engage in any other conduct that would be improper and that there is no dispute concerning the content of the letter sent by the union president to employees and the timing of its delivery. The inferences to be drawn from these facts, and from the widespread publicity accompanying the announcement and implementation of the wage freeze, the knowledge of the employees that no wage increase could be obtained without company agreement, and the company’s statements that it would not agree to an increase, are matters peculiarly within the Labor Board’s expertise. We therefore defer to it.

Review is denied and enforcement is granted.

      . Section 8(a)(1) provides: “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed by section 157 of this title.” Section 157 of title 29 provides in relevant part: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . . ” 29 U.S.C. § 157.

      . The results of the election were 43 votes for the United Mine Workers, 1 vote for the Intervenor Southern Labor Union, 16 votes against both unions, and 9 challenged ballots.

      . The Southern Labor Union was permitted to intervene and have its name placed on the ballot.

      . The union scale wages referred to in the letter were apparently those provided in the National Bituminous Coal Wage Agreement which was to expire on September 30, 1971.

      . The Board itself has based its findings'concerning the impact of various campaign tactics largely on its own speculation and has never conducted an empirical study to determine the impact of various campaign techniques on voting behavior. Recently however, some empirical research has been conducted. The preliminary results of this research indicate that campaigns have little impact on voting behavior and that the impact they may have is often just the opposite of that which the Board has assumed they would have. See Getman & Goldberg, The Myth of Labor Board Expertise, 39 U. Chi.L.Rev. 681 (1972) ; Getman, Goldberg & Herman, The National Labor Relations Board Voting Study: A Preliminary Report, I J. Legal Studies 233 (1972).

      . After argument, the parties were asked to brief the question, “At the time of the disputed NLRB election in this case, did federal law and regulations provide for discretion in the Pay Board to allow wage increases?” Prom their responses, it appears that the duration of “Phase 1” of the President’s Economic Stabilization Program was too short to permit a definitive answer because although some wage increases were permitted, none under circumstances similar to those here was granted. We regard this evidence as casting some doubt on the asserted falsity of the union’s representation but in view of our disposition of the case, we find that this factor is not determinative.


author: IRVING R. KAUFMAN, Chief Judge:

text:
    UNITED STATES of America, Appellant, v. Henry C. PERCEVAULT et al., Defendants-Appellees.
    No. 613, Docket 73-2633.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 7, 1973.
    Decided Jan. 8, 1974.

      Richard L. Shanley, Dept, of Justice (Robert A. Morse, U. S. Atty., E. D. N. Y., Denis E. Dillon, Alan R. Naftalis, Attys., Dept, of Justice, on the brief), for appellant.
    Eleanor Jackson Piel, New York City, for defendant-appellee Percevault.
    Frank E. Freeman, Miami, Fla., for defendants-appellees Rubinson and Cohen.
    Before KAUFMAN, Chief Judge, and WATERMAN and FEINBERG, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

In this appeal, taken prior to trial, we are called on to consider several novel questions pertaining to discovery in criminal cases. The government appeals, pursuant to 18 U.S.C. § 3731, from an order by Judge Weinstein suppressing and excluding from introduction at the forthcoming trial of United States v. Dennis Carroll et al. statements of prospective witnesses which the government has refused to disclose to the defense. Fed.R.Crim.P. 16(g). Despite this court’s leadership in the movement toward liberalized rules of criminal discovery, United States v. Youngblood, 379 F.2d 365, 368-370 (2d Cir. 1967); United States v. Giampa, 290 F.2d 83 (2d Cir. 1961); cf. Dennis v. United States, 384 U.S. 855, 874, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), we must reverse Judge Weinstein because we believe he exceeded his statutory authority.

I.

Since the discovery stage in this criminal ease has been quite prolonged and because the underlying prosecution is rather complex, it will serve clarity to turn first to the litigation that preceded Judge Weinstein’s order. On April 4, 1973, Henry Percevault was named with sixteen other individuals and one corporation in a three count indictment charging conspiracy (18 U.S.C. § 371) and substantive securities law violations in connection with the sale of shares in Fleurette, Incorporated. (15 U.S.C. §§ 77q(a), 77x, 78j(b)). In addition to the co-defendants, four unindicted co-conspirators were named in the indictment. Since the filing of the indictment, eight defendants have pleaded guilty to various counts and may testify for the government ; four defendants are fugitives; and the charges against one defendant have been dismissed. Accordingly, only five defendants — Henry Percevault, George Cohen, Norman Rubinson, Leonard Kozman, and Equity Financial Trading Corporation — are currently awaiting trial.

On May 21, 1973, the lengthy process of discovery began when defendant Per-cevault, aided by able appointed counsel, filed a motion for severance and discovery in which he requested, inter alia, production of all confessions or statements of co-defendants as well as copies' of all recorded statements made to the Securities and Exchange Commission and to the grand jury. After additional requests for disclosure were made, supported by memoranda of law and full argument, Judge Weinstein issued an order on October 10, 1973 (amended on October 26, 1973, 61 F.R.D. 338, in which he directed the government prior to trial to permit Percevault to:

inspect and copy or photograph any relevant written or recorded statement or confession made
(1) by the defendant Percevault, or
(2) by any co-defendant, or
(3) by any co-conspirator during the course and in furtherance of the conspiracy charged which the government intends to introduce against the defendant Percevault as his admission.

In his amended order of October 26, Judge Weinstein directed similar discovery of:

any relevant written or recorded statement or confession made by a co-conspirator after the conspiracy terminated, including grand jury testimony, reporting a statement that the government intends to introduce against the defendant Percevault as his admission because it was made by a co-conspirator in the course of and in furtherance of the conspiracy charged.

During the course of oral argument before us, the government represented that it does not have in its possession any statements, including wiretaps, made during the lifetime of the conspiracy, and that it has not suppressed any exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Moreover, we have been advised that the government has turned over to the defense all statements made by the five defendants who are awaiting trial and by several other defendants originally named in the indictment who will not be testifying for the prosecution. The only items the government has refused to disclose are those described by the chief Department of' Justice attorney on the case in a letter to Judge Weinstein dated October 29, 1973, as:

written or oral statements or confessions made after the conspiracy terminated by co-conspirators, including co-defendants, whom the Government intends to call as witnesses at the trial ....

The government contends that the Jencks Act (18 U.S.C. § 3500) prohibits a district judge from compelling disclosure of a government witness’ statements before the witness testifies at trial and thus, the Department’s letter of October 29 is on firm ground.

Judge Weinstein, obviously dissatisfied with the strictures of the Jencks Act, made an effort to blaze new trails in the field of criminal discovery. He declared the Jencks Act inapplicable in the instant case and determined that the statements of co-conspirators, even those who are going to testify for the government, could, instead, be discovered under Fed.R.Crim.P. 16(a) — a provision which ordinarily governs the production of only those statements made by a defendant.

II.

The Jencks Act, which is the exclusive vehicle for disclosure of statements made by government witnesses, Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), was intended to serve several purposes. On the one hand, it protects the rights of a defendant by requiring the court to give the defendant access to relevant prior statements of a witness after the witness has testified at trial (18 U.S.C. § 3500(b)). On the other hand, the prosecution cannot be compelled to disclose statements of the witness before he has testified on direct examination (18 U.S. C. § 3500(a)). This unique but limited discovery device represents a legislative determination that access to a witness’ statements could be useful in impeaching a witness but was not intended to be utilized in preparation for trial. Palermo v. United States, supra, 360 U.S. at 349, 79 S.Ct. 1217; 1957 U.S.Code Cong. & Admin.News pp. 1862-1864, 1869. But see Brady v. Maryland, supra. Since the only statements in issue here are clearly those of prospective witnesses and are accordingly within the scope of 18 U.S.C. § 3500(a), the district court did not have the statutory authority to compel disclosure, over the government’s objection, prior to trial.

Judge Weinstein’s primary point of departure from the Jencks Act was Rule 16(a) Fed.R.Crim.P. But, this rule was intended to permit the defendant liberal discovery only of his own statements in the government’s possession — a right which had not been firmly established before 1966. Since then we have stated that Rule 16(a) authorizes broad pretrial discovery of the defendant’s statements, whether made during or after the commission of the crime charged; to a government agent, to a grand jury, or to anyone else; and whether obtained surreptitiously or voluntarily. United States v. Crisona, 416 F.2d 107, 114-115 (2d Cir. 1969) cert, denied sub nom. DeLyra v. United States, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970). Moreover, we have expressed the view that “such a statement is obviously of such vital importance to the defense that fairness compels its disclosure, and . guilty pleas will thereby be encouraged.” United States v. Crisona, supra, 416 F.2d at 114. See also Dennis v. United States, supra, 384 U.S. at 870, 86 S.Ct. 1840. Common sense and judicial experience teach that a defendant’s prior statement in the possession of the government may be the single most crucial factor in the defendant’s preparation for trial. Moreover, it has been suggested that pretrial access to statements by defendants will lead to conservation of judicial resources because potential constitutional defects in the prosecution, for example, coerced confessions and illegal wiretaps, can be identified and examined prior to the trial. See ABA Standards Relating to Discovery and Procedure Before Trial, § 1.2 and Commentary pp. 40-43, Approved Draft (1970).

Although Rule 16(a) provides a mechanism for liberal discovery, it was not intended to provide the defendant with access to the entirety of the government’s case against him. See Notes of Advisory Committee, supra, 39 F.R.D. at 176. Judge Weinstein, however, accepted Rule 16’s broad mandate for disclosure of the defendant’s statement while ignoring its inherent limitations. Accordingly, he expanded the scope of 16(a) to include statements made by persons who are not defendants. He reached this result by a resourceful process of reasoning, whose apparent logical consistency evaporates under closer analysis. In effect, Judge Wein-stein employed the vicarious admissions exception to the hearsay rule as a device for transposing the justifications for disclosing a defendant’s statements to statements made by non-defendants. The vicarious admissions exception permits statements made by co-conspirators during the course of and in furtherance of a conspiracy to be introduced at trial against a defendant as if they were his admissions. By reading Rule 16(a) and the co-conspirator hearsay exception in pari materia, Judge Weinstein reasoned that if Percevault were to be held vicariously responsible for statements made by co-conspirators, that “fairness” dictated they should be made available prior to trial. Indeed, Judge Weinstein clarified his purpose by stating that there is:

much more need for the vicarious utterances of the defendant than for his own declarations to be revealed since in many cases he will be unaware of the many statements allegedly made by his fellow conspirators. His counsel should be apprised of them, for often they will be quite damaging unless explained.

Although his notions of fairness may lead a district judge to encourage disclosure of statements made by co-conspirators who are potential government witnesses, Rule 16(a) simply does not encompass these statements, nor does the Jencks Act permit their disclosure over the objection of the government. Moreover, the considerations which support expansive pretrial discovery of statements made “by the defendant” (Fed.R.Crim.P. 16(a)) are not pertinent to those made by prospective government witnesses. Fear of intimidation of witnesses and concern over efforts to suborn perjury were not flights of fantasy by those who drafted Rule 16. See Notes of Advisory Committee, supra, 39 F.R.D. at 178; Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo. L.J. 1276, 1286 (1966); United States v. Youngblood, supra, 379 F.2d at 369-370 n. 3.

Judge Weinstein’s circumvention of the distinction between statements made “by the defendant” and those made by potential witnesses is not supportable for several additional reasons. The doctrinal underpinning of his ruling is the evidentiary rule that permits introduction at trial of statements made by co-conspirators during the lifetime of the conspiracy. See 4 Wigmore on Evidence §§ 1077, 1079. But, even this questionable premise will not support discovery of the statements at issue here, because the only statements not disclosed by the government were made after the termination of the conspiracy. Accordingly, the rationale for the vicarious admissions exception to the hearsay rule — that the declarant and the defendant have an identity of interest which enhances the reliability of the co-conspirator’s statements, see 4 Wigmore on Evidence, supra, § 1077 — is inapposite.

Judge Weinstein’s order becomes somewhat convoluted occasionally and requires careful rereading. As we interpret his order, he was not directing pretrial disclosure of all post-conspiracy statements by prospective witnesses, but only so much of those statements that purported to relate conversations occurring during the pendency of the conspiracy. Mere narrative post-conspiracy statements were not within the scope of the order. In brief, the district judge seems to have ordered discovery only of “statements-within-statements,” by assuming their admissibility at trial as vicarious admissions. Although nothing we say is intended to reflect in any way on the issue of admissibility of such “statements” at trial, we note that Judge Weinstein’s holding fails to overcome several statutory hurdles. As we noted above, pre-trial discovery of statements made by prospective witnesses during the lifetime of the conspiracy is not governed by Rule 16(a) (because made by someone other than the defendant) and is not permitted by the Jencks Act. Moreover, we cannot ignore that the only access -the government has to these purported vicarious admissions is through post-conspiracy statements by prospective witnesses. Thus, the Jencks Act is clearly applicable, for as we commented in Crisona, 3500 material is, by its very nature, a recitation of past occurrences. United States v. Crisona, supra, 416 F.2d at 113; United States v. Sopher, 362 F.2d 523, 525 (7th Cir.) cert, denied 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966).

In view of our analysis of the plain language and clear purposes of both Rule 16 and 18 U.S.C. § 3500, we must conclude that Judge Weinstein exceeded his authority in compelling pretrial disclosure of statements made by prospective government witnesses. This view, moreover, is consistent with that taken by the Seventh Circuit recently in United States v. McMillen (7th Cir. October 17, 1973), where in a similar factual setting the Court of Appeals issued a writ of mandamus to deny the defense access to a co-conspirator’s statements until he testified at trial. See Sendejas v. United States, 428 F.2d 1040, 1046 (9th Cir.), cert, denied, 400 U.S. 879, 91 S.Ct. 127, 27 L.Ed.2d 116 (1970).

III.

We should note finally that we see nothing inconsistent between our holding that the trial judge is prevented by the Jencks Act from ordering pretrial disclosure of statements made by a prospective government witness over the government’s objection, and cases which have afforded the district judge a measure of discretion in administering the Act. Those cases did not consider the timing of the disclosure, but focused instead on a definition of the term “statement,” United States v. Augenblick, 393 U.S. 348, 355, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); Palermo v. United States, supra, 360 U.S. at 355, 79 S.Ct. 1217; or a determination of the appropriate procedures for transmission of Jencks Act material at trial, United States v. Gardin, 382 F.2d 601 (2d Cir. 1967). Although we hold that the government cannot be compelled to disclose statements of prospective witnesses prior to the time prescribed by the Jencks Act, we note that in most criminal cases, pretrial disclosure will redound to the benefit of all parties, counsel, and the court. Indeed, sound trial management would seem to dictate that Jencks Act material should be transmitted prior to trial, especially in complex cases, so that those abhorrent lengthy pauses at trial to examine documents can be avoided. See 8 J. Moore, Federal Practice, ¶ 16.10[ 1], at 16-117 (1973). We suggest that the district judge may find the pretrial conference, Fed.R.Crim.P. 17.1, a useful forum for establishing a timetable for discovery and for reaching agreements on the scope of disclosure. Particularly in multiple defendant eases, the district judge may solicit broad disclosure to assist him in disposing of motions for severance or in detecting inadmissible confessions under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Pretrial discovery should be approached with a spirit of cooperation among court and counsel in order to prevent those burdensome trial recesses and also, we should emphasize, to protect the government against postconviction claims of prejudicial surprise, see United States v. Baum, 482 F.2d 1325, 1331-1332 (2d Cir. 1973), or claims of suppression of material and favorable evidence, see Brady v. Maryland, supra. In this connection, we were advised at oral argument that the government ordinarily is receptive to informal defense requests for discovery and is usually desirous of complying with a judge’s disclosure order. We encourage that practice and our opinion should not be construed to the contrary.

In any event, this is not a case where the district judge relied on such discretionary powers over trial procedures as he may possess for his discovery order. Instead, the order, which was entered over the government’s objection, was grounded on a statutory and rule interpretation we find untenable. Accordingly, we reverse.

      . We note that all defendants named in the indictment were named in the conspiracy count. Accordingly, our discussion of co-conspirators includes all the original defendants, whether they will stand trial or have pleaded guilty and may testify for the government.

      . Although the language of the order applies only to Percevault, the transcript of proceedings of October 26, 1978 indicates that the other appellees were given leave to join in the discovery motion and, indeed, were granted similar relief.

      . The order also included a protective provision which permitted co-defendants or the government to show why certain statements encompassed within the mandate of the order should not be disclosed. See Fed.R.Crim.P. 16(e). We have reviewed several documents ordered sealed by Judge Weinstein, which indicate that he lias exempted a number of statements from his disclosure order.

      . 18 U.S.C. § 3500, provides, in relevant part:
      (a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
      (b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
      Subsection (e) defines a statement, for purposes of disclosure at trial, as:
      (1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
      (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
      (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

      . Although we find that production cannot be compelled prior to trial under 18 U.S.C. § 3500(a), we do not reach the question whether the contested statements are properly discoverable at trial under 18 U.S.C. § 3500(b), (e). That determination is, in the first instance, for the trial judge. Palermo v. United States, supra, 360 U.S. at 354-355, 79 S.Ct. 1217.

      . Rule 16(a) Ped.R.Crim.P. provides:

        Defendant’s Statements; Reports of Examinations and Tests; Defendant’s Or and Jury Testimony. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, (2) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and (3) recorded testimony of the defendant before a grand jury.

      . Prior to the 1966 amendment to the rule adding subsection (a), the defendant had no explicit right to discover his statements prior to trial and the extent of permissible disclosure was the source of considerable controversy. See Notes of Advisory Committee, 39 F.R.D. 175-176; Kaufman, Criminal Discovery and Inspection of the Defendant’s Own Statements in the Federal Courts, 57 Colum. L.Rev. 1113 (1957).

      . The disclosure of recorded statements made by persons other than the defendant is governed by Rule 16(b) Fed.R.Crim.P. which provides:

        Other Boohs, Papers, Documents, Tangible Objects or Places. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subdivision (a) (2) , this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than' the defendant) to agents of the government except as provided in 18 U.S.C. § 3500.
      Judge Weinstein placed great reliance on the reference to 18 U.S.C. § 3500 in Rule 16 (b) and the omission of any reference to that section in Rule 16(a). Accordingly, he concluded that Rule 16(a) is not limited by the Jencks Act. Judge Weinstein was in error since Rule 16(b) clearly indicates that the Jencks Act is not modified in any respect by Rule 16. The use of the word “rule”, rather than “subdivision” in the language of 16 (b) suggests that no provision of Rule 16 was intended to alter the Jencks Act’s exclusive governance of inspection of witness’ statements. Moreover, the absence of a specific reference in Rule 16(a) does not imply a contrary conclusion, because 16(a) clearly refers only to statements made “by the defendant” and 18 U.S.C. § 3500(a) explicitly deals with statements made by an individual “other than the defendant.”

      . Judge Weinstein grounded his conclusion on Proposed Federal Rule of Evidence 801(d) (2) (E). Although the Proposed Rules are not operative, Rule 801(d)(2)(E) merely codifies accepted practice. See Notes of Advisory Committee, 56 F.R.D. 299. Judge Weinstein determined that disclosure of co-conspirators’ statements was “compelled” by Fed.R.Crim.P. 16(a), when read in conjunc tion with Proposed Rule of Evidence 801 (d) (2) (E). Wholly apart from whether such strong reliance upon a proposed rule which has not been adopted as yet is warranted, we have found no suggestion in the legislative history of either Rule 16(a) or Proposed Federal Rule of Evidence 801(d) (2) (E) that the operation of the Jencks Act is to be modified. See Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo.L.J. 1276, 1282 (1966).

      . Although the distinction between narrative statements and recitations of prior conversations is not manifest on the face of the order, the transcript of proceedings before Judge Weinstein on October 26 indicates this result was intended.

      . Our dicta in United States v. Leeds, 457 F.2d 857 (2d Cir. 1972), is not apposite to the principle we are deciding today. In Leeds, which was an appeal from a conviction, we noted that the trial judge had directed disclosure of Jencks Act material on the day preceding trial and the government complied. Accordingly, the dicta in Leeds concerning the trial judge’s discretion in administering disclosure must be viewed in the context of the government’s acquiescence.


author: BREITENSTEIN, Circuit Judge.

text:
    Willie Lee GORDON et al., Plaintiffs-Appellants, v. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA et al., Defendants-Appellees, Marcelus Hodge et al., Defendants-Appellants. The ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., OKLAHOMA CHAPTER-BUILDERS DIVISION, Plaintiff, v. LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 612, Defendant, Laborers’ International Union of North America, Intervenor-Appellee.
    Nos. 73-1111, 73-1112.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 13, 1973.
    Decided Nov. 21, 1973.
    Rehearing Denied Feb. 8, 1974.
    See also 476 F,2d 1388, Em.App., 489 F.2d 749.

      C. W. Schwoerke, Oklahoma City, Okl., for plaintiffs-appellants Willie Lee Gordon, and others.
    James M. Little, Oklahoma City, Okl. (Leslie L. Conner and Leslie L. Conner, Jr., Oklahoma City, Okl., on the brief), for defendants-appellants Marcelus Hodge, and others.
    Jules Bernstein, Washington’ D. C., for defendant-appellee Laborers’ International Union of North America.
    Before BREITENSTEIN and DOYLE, Circuit Judges, and TALBOT SMITH, District Judge.

       Of the Eastern District of Michigan, sitting by designation.

   BREITENSTEIN, Circuit Judge.

This controversy concerns the validity of a collective bargaining contract made by a local union and the imposition of a trusteeship over the local by its parent international union. The trial court upheld the trusteeship and voided the contract. We affirm the trusteeship and remand for further proceedings to determine the validity of the contract.

The posture of these appeals requires explanation. In D.C. No. 70-520 Gordon, et al., were plaintiffs, and the defendants included Laborers’ International Union of North America and Hodge, et al. D.C. No. 72-544 was an action by Associated General Contractors against Laborers’ International Union of North America, Local 612. The International Union which was the parent of Local 612 intervened. The trial court consolidated No. 70-520 and No. 72-544 for trial and the two cases were disposed of by one judgment. The Gordon group, which is made up of members of Local 612, has appealed and its appeal is our No. 73-1111. The Hodge group, which is compsed of officers of Local 612, has also appealed and its appeal is our No. 73-1112. The International Union is resisting each appeal. The Associated General Contractors has made no appearance. The situation is such that we cannot say with any assurance whether anyone is appearing before us on behalf of Local 612. The Gordon group and the Hodge group will be referred to as appellants.

Laborers’ International Union of North America is a labor organization of about 600,000 members. It is made up of local unions and district councils located throughout the United States and Canada, and is governed by a General Executive Board in accordance with a written constitution. The International has chartered nine locals in Oklahoma. Its constitution provides for the chartering of district councils upon the application of affiliated locals when combination of economic power and effort is advantageous. A district council is a labor organization within the purview of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). See 29 U.S.C. § 402(i).

Local 612, Oklahoma City, was chartered by the International in 1920. In 1968, seven of the Oklahoma locals, not including Local 612, applied for a district council charter. Local 612 objected to the creation of the council and declined to affiliate with it. Acting under its constitution, the International ordered Local 612 to affiliate, and District Council was created.

In 1970, several members of Local 612 sued International, District Council, Local 612, and three of the officers of Local 612 seeking in the alternative authority for Local 612 to withdraw from District Council or an order providing that Local 612 have representation on District Council that would be fairly representative of its membership in proportion to that of the other eight local unions in the council. This case is district court No. 70-520. No significant action was taken in the case until the spring of 1972.

Associated General Contractors of America, Inc., Oklahoma Chapter-Builders Division (Contractors) is an Oklahoma association of building contractors. Early in 1972 District Council notified Contractors that its bargaining committee would meet with their negotiating committee to negotiate the collective bargaining agreements between the Contractors and the locals. Local 612 desired to bargain itself and set up a committee for that purpose. An agreement was reached between the Contractors and Local 612 on March 13,1972.

On March 27, 1972, the International notified Local 612 that pursuant to Art. IX, § 7 of the International Constitution a hearing would be held on April 10 to determine whether Local 612 should be placed under trusteeship. Three officers of Local 612 appeared at the hearing. The Hearing Panel of the International made specific findings pertaining to the March 13 contract with Contractors, violations of the International's constitution and policies, and other matters. On April 25, the International imposed a trusteeship on Local 612.

On May 3, 1972, the officers of Local 612 filed an answer in the lawsuit which had been pending for nearly two years and in a cross-claim against the International alleged that the imposition of the trusteeship on Local 612 was wrongful. The plaintiffs then amended their complaint to allege the invalidity of the trusteeship and to request an injunction barring the trusteeship. After a hearing, the district court on May 16 entered the requested preliminary injunction.

It should be noted that prior to the negotiations between Local 612 and the Contractors and at a meeting attended by 59 of the over 600 members of Local 612, those present voted 40 to 11 for the appointment of a bargaining committee of its own to negotiate with Contractors. This action occurred in spite of a warning given by the officers of Local 612 that the action would violate the International Constitution. At a July 17 hearing the district court expressed a desire to learn the wishes of the Local 612 membership with regard to its representation in collective bargaining negotiations and directed its magistrate to conduct a meeting of the membership for this purpose. At an August 21 meeting, and after presentation of the conflicting viewpoints, the vote was 157 to 45 in favor of representation by District Council.

On August 8, Contractors brought suit against Local 612 for a declaration under the Labor-Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a), that the March 13 agreement between them and Local 612 was valid and binding. This ease is district court No. 72-544. The answer of Local 612 admitted the allegations of the complaint and prayed that the contract be upheld and enforced. International then moved to intervene in Contractors’ suit and denied the validity of the March 13 contract. The district court permitted the intervention and consolidated action No. 70-520 with action No. 72-544. After a hearing, the court upheld the trusteeship, nullified the contract, and dissolved the preliminary injunction which it had previously granted. See Gordon v. Laborers’ International Union of North America, W.D.Okl., 351 F.Supp. 824.

Appellants attack the imposition of the trusteeship. Title III of LMRDA provides for trusteeships over subordinate labor organizations. Its § 302, 29 U.S.C. § 462, says that trusteeships shall be established and administered only in accordance with the constitution and bylaws of the organization which has assumed trusteeship over the subordinate body and for the purpose, among other things, of “assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization.”

After the International’s 1966 convention, its General Executive Board ordered that, in the next round of collective bargaining negotiations, health, welfare, and pension plans were to be negotiated for the benefit of all members. District Council took the position that bargaining on these subjects was mandatory under the action of the International. As a result of District Council negotiations all of the Oklahoma locals, except Local 612, became parties to a common Oklahoma Laborers' Health and Welfare Benefit Plan and became covered by the Laborers’ Central and Southern States Pension Fund. The March 13 contract between Local 612 and Contractors did not contain the health, welfare, and pension benefits obtained for other Oklahoma locals by the District Council.

Appellants say that our decision in United Brotherhood of Carpenters and Joiners of America v. Brown, 10 Cir., 343 F.2d 872, is controlling and requires reversal. That case was concerned with the imposition by a national union of a trusteeship over a local union because, among other things, the local had failed to affiliate with a district council. The trial court held that the trusteeship was invalid and this court affirmed.

Brown is distinguishable from the case at bar. In Brown the authority of the national to impose the trusteeship was implied from the general authority found in its constitution and bylaws. The court held, 343 F.2d at 882, that § 302 is not satisfied by a general authority and requires that the “organization’s constitution and bylaws set forth the circumstances under which a trusteeship may be established over’its local unions and the manner or procedure in which it is to be imposed.” In the case at bar the International’s constitution specifically set forth the circumstances and procedures under which a trusteeship may be imposed. In our opinion those circumstances and procedures are in accord with the requirements of § 302.

In Brown the trusteeship was imposed because the local would not affiliate with the district council and would not raise its dues. The court pointed out that these actions “have nothing whatever to do with collective bargaining.” 343 F.2d at 883. Collective bargaining is at the heart of the case before us. The International had established legitimate objectives concerning health, welfare, and pension programs. Through its constitution the International required that bargaining negotiations be conducted by the district council. Local 612 flaunted its disregard of these objectives and rules of the International. After notice to Local 612 and after a hearing at which officers of Local 612 appeared, the General Executive Board made specific findings and concluded that the imposition of a trusteeship was within the power of the International’s President under Art. IX, § 7, of its constitution. The record shows that the actions of the union officials were in good faith and were fair and reasonable. In these circumstances the courts are reluctant to substitute their judgment for that of the union officials. Vestal v. Hoffa, 6 Cir., 451 F.2d 706, 709. See also Parks v. International Brotherhood of Electrical Workers, 4 Cir., 314 F.2d 886, 906. In our opinion the International properly imposed the trusteeship and in so doing complied with LMRDA, Title III, § 302, 29 U.S.C. § 462.

Article IV of the International’s Uniform District Council Constitution provides for weighted voting in the district councils. The result is that Local 612 has fewer votes in District Council than it would have if delegates were appointed in direct relationship to the size of each local. Appellants say that the weighted voting violates the equal rights requirements of the Bill of Rights of Labor Organizations, LMRDA, Title I, § 101(a) (1), 29 U.S.C. § 411(a) (1).

The International argues that the court has no jurisdiction to consider this point because of the decision in Cal-hoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190. Calhoon was concerned with eligibility requirements under LMRDA, Title IV, § 401(e), 29 U.S. C. § 481(e), and held that the exclusive remedy was a suit by the Secretary of Labor. 379 U.S. at 140-141, 85 S.Ct. 292. We are concerned with rights claimed under Title I, § 101, 29 U.S.C. § 411. The differences between Title I and Title IV are such that we believe that Calhoon does not negate jurisdiction in the instant case. In our opinion jurisdiction lies under Title I, § 102, 29 U.S.C. § 412.

The Labor Bill of Rights gives every member of a labor organization equal rights and privileges to attend, participate in, and vote at meetings of the organization of which he is a member. Our concern is not with the rights of members of Local 612 to vote at its meetings. Rather we are concerned with the local’s rights to delegates representing it at the district council. In our opinion § 101(a)(1) was not intended to impose a proportional representation system on international unions or their intermediate bodies.

American Federation of Musicians v. Wittstein, 379 U.S. 171, 85 S.Ct. 300, 13 L.Ed.2d 214, was concerned with a weighted-voting system at an international’s annual convention. The Court upheld the weighted voting and said, 379 U.S. at 182, 85 S.Ct. at 306, that § 101(a)(3)(B) “authorizes a representative system of government and does not require a town meeting for action by an international or national union.” We believe that this reasoning applies to voting at the district council level as well as at an annual convention.

We find no statutory requirement that representation in delegate bodies of labor organizations reflect the proportionate number of members in each subordinate labor organization represented in those bodies. Section 101(a)(1) says that the rights which it recognizes are “subject to reasonable rules and regulations in such organization’s constitution and bylaws.” Congress did not limit union autonomy in weighting delegate votes. The pertinent provisions of the Uniform District Council Constitution have stood the test of time and should not be abrogated by the courts in the absence of a clear directive from Congress. Disputes between an international and one of its locals are best left for internal settlement. Parks v. International Brotherhood of Electrical Workers, 4 Cir., 314 F.2d 886, 906.

We turn to the question of the validity of the March 13 contract. The district court held, 351 F.Supp. at 834, and we agree, that “International properly decided that the negotiation and implementation of collective bargaining agreements on an area-wide basis through the vehicle of a [district] Council constitutes a desirable objective for the purpose of obtaining uniform standards and conditions of employment for its members.”

Appellants argue that the purpose of the trusteeship was to substitute District Council as the bargaining agent for Local 612 in violation of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The answer is that the National Labor Relations Board has exclusive jurisdiction to determine the question of representation for purposes of collective bargaining. Confederated Independent Unions v. Rockwell-Standard Company, 3 Cir., 465 F.2d 1137, 1140-1141. The cases relied on by the appellants are not in point. National Labor Relations Board v. SuCrest Corporation, 2 Cir., 409 F.2d 765, was a proceeding to enforce a NLRB order. Navarro v. Gan-non, 2 Cir., 385 F.2d 512, holds that under LMRDA union members have the right to be free of interference from an international union except where the parent union, in accordance with lawfully established procedures, has imposed a trusteeship. In the case at bar a trusteeship was so imposed.

The district court nullified the March 13 contract because of the failure of a condition subsequent. 351 F.Supp. at 835. The situation requires an explanation. Pursuant to the Economic Stabilization Act of 1970, 12 U.S.C. § 1904, the President created the Laborers’ National Craft Board and the Construction Industry Stabilization Committee. The parties to the March 13 contract made it subject to the condition subsequent that it be approved by the Craft Board and the Stabilization Committee. The Craft Board rejected the contract. The Stabilization Committee reviewed the Craft Board action and agreed. We have the strange situation of a collective bargaining agreement being disapproved because the wage increase was too small rather than too large.

The Contractors appealed to the Temporary Emergency Court of Appeals. See Associated General Contractors of America, Inc., Oklahoma Chapter-Builders Division v. Laborers’ International Union, Em.App., 476 F.2d 1388. TECA, in an exhaustive and comprehensive opinion which seems to us to treat the case as one for the review of administrative action held, 476 F.2d at 1407, that absent certain factors, “no order of an economic stabilization program agency should be mandated or subjected to invalidation in any judicial proceedings unless that agency has been made party to such proceedings.” The court then said, Ibid., that the Craft Board and Stabilization Committee “may be joined,” and reversed and remanded the case for further proceedings consistent with the opinion. Apparently, no one called the attention of TECA to the appeals with which the Tenth Circuit is now concerned.

We find ourselves in an anomalous situation. Appeals have been taken to both TECA and the Tenth Circuit from the same district court judgment. Both appeals deal with the same subject, the validity of the March 13 contract. In TECA the question was compliance with the Economic Stabilization Act. In the Tenth Circuit the question is the authority of Local 612 to make the contract in violation of the rules and policies of the parent union. The Tenth Circuit situation is complicated by the fact that the Contractors have not appeared and the record is so confusing that we are unable to say whether Local 612 is before us. Although we have grave doubt as to the validity of the contract in the circumstances shown by the record before us, we are reluctant to decide the issue.

A strange situation exists when two different appellate courts are reviewing the same district court judgment. TECA found that it had jurisdiction and remanded with directions. Apparently there has been no effort to obtain certio-rari review of the TECA action and its decision is the law of the case. An intolerable situation would result if we came out with a different disposition than did TECA.

One other matter should be mentioned. In its opinion TECA recognizes a possible jurisdictional conflict between the National Labor Relations Board and the agencies created pursuant to at the Economic Stabilization Act. See 476 F.2d at 1397, n. 8. If the Craft Board and the Stabilization Committee are joined as parties in accordance with the TECA holding, consideration might well be given to the joinder also of the National Labor Relations Board.

We believe that good judicial administration mandates that we avoid any semblance of a conflict with TECA. The best solution which we can contrive is to get the entire question of contract validity back into the district court. We affirm the judgment insofar as it upholds the trusteeship and dissolves the preliminary injunction. On the issue of the validity of the March 13 contract we reverse and remand the case for further proceedings in the light of both this opinion and the TECA opinion.

In each appeal the judgment is affirmed in part and reversed in part. Costs are assessed against the appellants.

      . The provisions pertinent here establish the following entitlement to delegates on the District Council: 2 delegates for 500 members or less; 3 delegates for 501 to 1000 members.

      . The nine locals malting up District Council have the following members : Muskogee 334; Bartlesville 65; Lawton 140; Ponca City 97; Oklahoma City (Local 612) 659; Still-water 65 ; Tulsa 822 ; Enid 42 ; Vinita 101.

      . Its reasons are stated in Associated General Contractors v. Laborers’ International Union, Em.App., 476 F.2d 1388, 1391-1392, from which we quote: “The proposed agreement failed to meet the Craft Board criteria for Oklahoma on the following counts. First, the agreement covers a three-year period and would stand as an absolute bar to necessary restructuring. Second, the agreement fails to narrow the economic gap between Tulsa and Oklahoma City and indeed, widens tlie margin. Third, we have reservations concerning the fact that no provisions have been made for welfare and pension benefits. Even though the rest of Oklahoma is covered by agreements calling for these benefits negotiated by the Oklahoma Laborers’ District Council and the Oklahoma Chapter AGC [Contractors].” (sic) The Craft Board also questioned the representative status of the negotiating committee purportedly representing Local 612.