author: PERRY, Senior District Judge.

text:
    Edward GIBSON, Plaintiff-Appellant, v. The KROGER COMPANY and Bakery Workers Local No. 372-A of Indianapolis, affiliated with the Bakery and Confectionary Workers International Union of America, AFL-CIO, Defendants-Appellees.
    No. 73-2132.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 17, 1974.
    Decided Nov. 21, 1974.
    As Amended Dec. 2, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1571.

      Theodore D. Wilson, Robert A. Zaban, Indianapolis, Ind., for plaintiff-appellant.
    Charles L. Whistler, Michael R. Maine, Dennis E. Zahn, Indianapolis, Ind., for defendants-appellees.
    Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge.

       Senior District Judge Joseph Sam Perry of the Northern District of Illinois is sitting by designation.

   PERRY, Senior District Judge.

This is an appeal from a judgment of the District Court in favor of the defendants, The Kroger Company (“company”) and Bakery Workers Local No. 372-A of Indianapolis, affiliated with the Bakery and Confectionary Workers International Union of America, AFL-CIO (“union”), in a civil rights action brought by the plaintiff, Edward Gibson, for damages resulting from the company’s denial of Gibson’s application for the position of forklift operator in the Stock and Receiving Department of the company’s Indianapolis bakery subsequent to the loss of his position of helper in said department due to production cutbacks.

Gibson is a member of the Negro race. He was hired by the company in November, 1956, and was assigned to the Cleaning and Pan Cleaning Department where he worked until August, 1969, when he was advanced to the position of Helper in the Stock and Receiving Department (“stockroom”).

In April, 1972, there were five employees, including Gibson, in the stockroom. Of the five employees, Gibson had the least priority in the department, i. e., he had the least time in the department itself; however, he had greater plant-wide seniority than two of the five. When, — as a result of production cutbacks,. — the number of employees required to operate the stockroom was reduced from five to four, Gibson, being lowest in departmental seniority, was transferred out of the department and was given the opportunity to select, in any other department of the plant, any position held by an employee having less plant-wide seniority than Gibson had. Immediately thereafter, on or about April 17, 1972, Gibson asked to be transferred back into the stockroom and to displace (“bump”) the employee who was the forklift (“bug”) operator in that department. Gibson’s request was denied on the grounds that (1) the company’s agreement with the union (“labor agreement”) did not permit an employee to “bump”, within his own department, another employee with greater departmental seniority; and (2) Gibson’s contractual prerogative to “bump” other employees with less plant-wide seniority applied only to departments other than the department from which Gibson had been displaced (by virtue of his junior departmental seniority).

On April 28, 1972, pursuant to the procedure prescribed in the labor agreement for resolution of disputes over the proper interpretation of the labor agreement, Gibson filed a written grievance in which he claimed that he had a contractual right, under the collective bargaining agreement, to “bump” the stockroom “bug” operator who had less plant-wide seniority than Gibson, irrespective of their relative departmental seniority.

On June 22, 1972, Gibson filed a complaint with the Indiana Civil Rights Commission, and on August 15, 1972, he filed a complaint with the Equal Employment Opportunity Commission (“EEOC” or “Commission”). Meanwhile, pursuant to the labor agreement between the company and the union, Gibson’s grievance was not resolved through the three-step contractual grievance procedure and, in accordance with the labor agreement, an impartial arbitrator was selected to hear the ease and render a decision.

On October 30, 1972, the grievance,— together with a related group grievance of some other employees who had been transferred in consequence of the reduction in force, — was arbitrated before Mr. David Dolnick, an eminent labor arbitrator. Gibson was represented at the hearing both by an attorney for the union and by his own personal counsel, who was given an opportunity to participate in the hearing and in the presentation of evidence on Gibson’s behalf.

On December 8, 1972, Arbitrator Dolnick issued a detailed opinion denying Gibson’s grievance and the aforesaid group grievance. He ruled that under the terms of the labor agreement Gibson was not entitled to the job of “bug” operator because, notwithstanding the fact that Gibson had more plant-wide seniority than the white employee holding the position, departmental seniority was, under the terms of the agreement, the controlling factor in determining entitlement to the “bug” operator job. The arbitrator thus sustained the company’s interpretation that the labor agreement required the company to permit the “bug” operator to retain his position, and did not allow the company to displace him with Gibson.

Arbitrator Dolnick went on to decide the grievances of some 17 other white and black employees on the same principle : all employees — black or white, male or female — whose jobs were affected by the temporary reduction in force could exercise plant-wide seniority only to replace a less senior full-time employee in another department.

On March 9, 1973, three months after the arbitrator’s decision was rendered, Gibson brought this action, alleging that the company and the union had engaged in unfair employment practices as to him, in violation of Title VII of the Civil Rights Act of 1964, as amended (“Act”) (42 U.S.C. § 2000e et seq.).

In his complaint Gibson alleged that he had been discriminated against in that he had not been permitted to displace a white employee whose job assignment Gibson desired. The complaint did not, however, allege that Gibson had either pursued or exhausted the administrative remedies prescribed by the Act through the EEOC. Nor did the complaint allege that Gibson had received any notice of right to sue from the EEOC.

On April 30, 1973, the union filed a motion to dismiss, in which several defects in Gibson’s complaint were alleged. One such alleged defect was Gibson’s failure to allege and to attach, as an exhibit, a letter from the EEOC giving notice of right to sue (“right-to-sue notice”).

On May 2, 1973, the company filed a consolidated motion seeking dismissal of Gibson’s action, or a summary judgment for the company. One alleged basis for the company’s motion to dismiss was that Gibson had failed to satisfy the jurisdictional requirements for the commencement of a civil action under Title VII of the Act because of his failure to allege receipt of, or to file a copy of, any right-to-sue notice from the EEOC.

On August 22, 1973, Gibson filed a memorandum of law in opposition to the aforesaid motions of the defendants. The memorandum was denominated “Answer to Defendants’ Motion To Dismiss”. Attached thereto was a right-to-sue notice to Gibson from the EEOC dated August 20, 1973.

On October 15, 1973, the District Court granted defendants’ motion to dismiss for lack of jurisdiction on the ground that the right-to-sue notice was a jurisdictional requirement.

Gibson contends that the District Court erred in concluding that it lacked jurisdiction to hear and determine Gibson’s action. Gibson argues that although his complaint lacked any allegation that Gibson had pursued or exhausted the administrative remedies prescribed by Title VII of the Act and any allegation that Gibson had received a right-to-sue notice from the EEOC, nevertheless at the time of dismissal the District Court had the requisite jurisdictional facts before it in the form of Gibson’s Answer to Defendants’ Motion to Dismiss, wherein Gibson stated that he had filed a complaint with the Indiana Civil Rights Commission on June 22, 1972 and with the EEOC on August 15, 1972, and that he had received his right-to-sue notice from the EEOC on August 20, 1973. Gibson further argues that the right-to-sue notice was attached to the aforesaid Answer, and that the District Court acknowledged in its opinion that Gibson received his right-to-sue notice on August 20, 1973.

Gibson summarizes his argument in these words:

Although the Complaint may have had some gaps with respect to Title VII matters, the bureaucratic procedures which the trial court considered critical with respect to its jurisdiction were complied with at the time that the Court said that it had no jurisdiction .

The company contends that Gibson ignored a basic jurisdictional prerequisite to a Title VII civil action by commencing his action prior to the issuance of a right-to-sue notice from the EEOC. The company asserts that the basic jurisdictional prerequisite which Gibson ignored is contained in the following language of 42 U.S.C. § 2000e-5(f) (1):

If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section the Commission, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge .

We agree with the company.

Although Title VII of the Act provides each complainant with an absolute right to bring a civil action in federal court, it is well settled that the administrative remedies available from the EEOC must be “exhausted,” in the traditional sense of the term, as a prerequisite to the commencement of such action. Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1139 (5th Cir. 1971), and cases cited therein.

This Court held in 1968 that the requirement that a complainant must invoke the administrative process within the time limitations set forth in section 706(d) of the Act is a jurisdictional precondition to the commencement of a court action, and that there are only two additional jurisdictional prerequisites for such commencement of court action: first, a notification to the aggrieved party by the Commission that it has been unable to obtain voluntary compliance, and second, the action must be filed within thirty days after the notification. Choate v. Caterpillar Tractor Company, 402 F.2d 357, 359 (7th Cir. 1968).

Gibson did not allege in his complaint that he had filed charges with the EEOC. Nor did he allege that more than 60 days had expired since filing charges with the EEOC and that he had requested a right-to-sue notice from the Commission. We think that our decision in the case at bar is controlled by our holding in Cox v. United States Gypsum, 409 F.2d 289 (7th Cir. 1969), reh. denied, 409 F.2d 289 (7th Cir. 1969). In Cox, seven laid-off women employees filed charges with the EEOC claiming discrimination on account of their sex. More than 60 days thereafter, the women filed a civil action against their company and their union under Title VII of the Civil Rights Act of 1964. The Act (42 U.S.C. § 2000e-5(f) (1)) gave the EEOC 60 days to secure a conciliation agreement (voluntary compliance). The EEOC had given no notice to the plaintiffs, as was provided in the Act, that it had been unable to obtain voluntary compliance, but the plaintiffs had rejected the offer of the company before bringing their action. The plaintiffs argued that their own rejection of the company’s offer, after 60 days had expired, established the inability of the EEOC to obtain voluntary compliance, and notice thereof to the plaintiffs, so that the 30-day period within which the Act allowed commencement of action had begun. This Court rejected this theory, saying:

. Although plaintiffs were in a position immediately to demand and obtain notice from the commission [EEOC], so that notice may be no more than a formality under the circumstances of this case, we think it is an important formality. Congress has limited the period within which an action may be begun to thirty days. The shortness of the period makes it all the more important that the time from which it runs be definitely determinable. .

409 F.2d at 291.

In the ease at bar, unlike Cox, Gibson did not even allege that he had attempted to utilize the procedures available through the EEOC to reach voluntary compliance.

In our Order denying the petition for rehearing in Cox, we said:

Our decision, affirming that of the district court, in part, turned on the fact that the commission had given no notice of inability to secure voluntary compliance under 42 U.S.C. § 2000e-5(e). Plaintiffs now inform us that on July 6, 1967, after they commenced their action, the commission wrote to each plaintiff as follows:
“We have been informed that you and the other Charging Parties have commenced suit against both the Union and the Company.
“We regret that it was not possible to resolve this dispute through the conciliation processes of the Commission. Should you feel that the Commission’s services may be helpful during the litigation, please feel free to call upon us.”
Plaintiffs suggest that these letters might be construed to constitute the statutory notice of inability, not previously called to the court’s attention. Plaintiffs’ court-appointed counsel was unaware of these letters until April 28.
Defendant, takes the position, among others:
“Moreover, the letters issued by the Commission under date of July 6, 1967 do not comply with Section 706(e) of the Act which provides that if the Commission has been unable to obtain voluntary compliance, ‘the Commission shall so notify the person aggrieved and a civil action may, within 30 days thereafter, be brought against the respondent named in the charge.’ The letters dated July 6, 1967 were subsequent to the institution of the action in the court below and in recognition of the fact that suit had been started on the charges, instead of a notification, as required by Section 706(e), that the Commission had been unable to obtain voluntary compliance.”
Under the circumstances of this case, we agree with the defendant’s statement, just quoted. [Emphasis added.]

Order on Rehearing, May 16, 1969. Gibson relies heavily upon Hoover v. Opportunities Industrialization Center of the Roanoke Valley, Inc., 348 F.Supp. 657 (W.D.Va.1972) where, the District Court said, regarding a right-to-sue letter which was received 13 days after a Title VII action was filed:

the filing of the complaint prior to receipt of notice, which was shortly forthcoming, is not sufficient grounds for dismissal of the plaintiff’s complaint. 348 F.Supp. at 661.

We agree with the court below that the facts in the case at bar are clearly distinguishable from those in Hoover. Gibson, unlike the plaintiff in Hoover, did not even allege in his complaint that he had previously filed charges with the EEOC, much less allege that he was about to receive notice from the EEOC of his right to sue. In Hoover, after the right-to-sue notice was received from the EEOC, the plaintiff requested and was given leave to file an amended complaint. After Gibson received his notice from the EEOC, he made no attempt to request leave to file an amended complaint. The Hoover court co'uld see that the plaintiff had substantially complied with the procedural aspects of the Act. Gibson, however, chose to ignore these procedural aspects. Moreover, the Hoover court recognized the force of Cox, for it went to considerable length to distinguish it, after first stating:

. this case [Cox] has been cited frequently as the leading authority on interpretation of the “notice of failure of conciliation”, section 706(e) of the Civil Rights Act.

In his brief (p. 9) Gibson contends:

“Bureaucratic delay should not stifle a party in the exercise of his civil or Title VII rights. Congress has mandated quicker action from the E.E.O.C. [citation omitted]. Bureaucratic procrastination or delay should not stifle or hinder a party with respect to the free exercise of his Title VII or civil rights [citation omitted].”

It is ironic that Gibson’s own course of conduct is' responsible for his situation. He did not request notice to sue from the EEOC prior to the decision of the arbitrator, and he did not request notice prior to filing suit. We agree with the union that Gibson's failure to have the right-to-sue notice from the EEOC at the time of commencement of suit is directly attributable to his own delay in requesting same. Furthermore, there is no indication of the existence of any special circumstances which might have made it a hardship for Gibson to seek said notice. Thus the doctrine enunciated in Stebbins v. Continental Ins. Companies, 143 U.S.App.D.C. 121, 442 F.2d 843 (1971), is applicable to the case at bar. In Stebbins the Court held that where the plaintiff, who filed with the EEOC a charge that he had been denied the position of claims adjuster on •racial grounds, did not claim that it was a hardship for him to seek notice from the EEOC (that it was unable to obtain voluntary compliance), and did not claim that the EEOC refused to give such notice, the receipt of such notice (the right-to-sue notice) was a jurisdictional prerequisite to the filing of a civil action by the plaintiff under Title VII of the Civil Rights Act of 1964, even though the Act provided that the EEOC give such notice within 60 days after the filing of a complaint with the EEOC and the EEOC had not done so. Said the Court, at 442 F.2d, pages 845-846:

. We therefore agree with the prevailing view that, in the absence of special circumstances, the notice of right to sue is a jurisdictional prerequisite to suit.

This Court should not reverse the judgment of the District Court in view of Gibson’s persistent neglect or refusal to pursue the judicial remedies that were available to him. The defendants’ motions to dismiss clearly called Gibson’s attention to the fatal fault in his complaint: his failure to allege that he had either pursued or exhausted the administrative remedies prescribed in Title VII of the Act. Gibson could have cured the fault as soon as he received his right-to-sue notice simply by amending his complaint to include the necessary allegation and the fact of his receipt of the notice. Fed.R.Civ.P. 15(a). Thus, instead of filing on August 22, 1973 his Answer To Defendants Motion To Dismiss, which Answer contained his right-to-sue notice, Gibson could have amended his complaint. He had ample time to do so — from August 22 to October 15, 1973, when his complaint was dismissed. He surely could not expect the District Court then, or this Court now, to put itself into the position of a litigant and amend his complaint for him.

Gibson had still another remedy which he neglected or refused to pursue. After the District Court dismissed Gibson’s complaint, he had an opportunity to file a new action; for under the 1972 amendments to the Act under which he was suing, he had 90 days from the date of receipt of his right-to-sue notice to file an action conforming to the Act. 42 U.S.C. § 2000e-5(f)(1). By eschewing this opportunity, Gibson thus persisted in his neglect or refusal to pursue the judicial remedies open to him.

On appeal, Gibson raises for the first time the contention that the District Court should not have dismissed the complaint because even if the court lacked jurisdiction under Title VII of the Civil Rights Act of 1964 as amended, it still would have jurisdiction under the Civil Rights Act of 1866 (42 U.S.C. § 1981). We agree with the company that this contention must be rejected for the reason that at no point until his brief on appeal has Gibson raised any claim or asserted jurisdiction under the latter statute. The principle that new issues or new bases for liability may not be raised for the first time on appeal is too well known to require citation. In Head v. Timken Roller Bearing Co., 486 F.2d 870, 874 (6th Cir. 1973), the plaintiffs filed a complaint alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964. The plaintiffs moved during the trial, at the close of their evidence, to amend their complaint to allege an additional cause of action under the Civil Rights Act of 1866, specifically to obtain the benefit of alleged discriminatory activities prior to the effective date of Title VII of the Civil Rights Act of 1964 (July 2, 1965). The court below denied this motion. The Court of Appeals held that the trial court did not err in denying the motion. The Court, at 486 F.2d 873-874, quoted the following language from Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th Cir. 1971):

While it is generally true that leave to file amendments should be freely given, Fed.R.Civ.P. 15(a), amendments should be tendered no later than the time of pretrial, unless compelling reasons why this could not have been done are presented .

Just as the Court in Head found no compelling reason why the plaintiffs could not have moved to amend their complaint earlier than they did, we find no reason why Gibson, prior to the trial court’s decision, could not have moved to amend his complaint to include an allegation under 42 U.S.C. § 1981.

For all of the foregoing reasons, the decision of the District Court is Affirmed.


source: Caselaw Access Project

author: SETH, Circuit Judge.

license: Public Domain

text:
    Molley McCURDY et al., Appellees, v. Hubert STEELE et al., Appellants.
    No. 73-1794.
    United States Court of Appeals, Tenth Circuit.
    Argued July 9, 1974.
    Decided Oct. 18, 1974.
    Rehearing Denied Jan. 10,1975.

      Thomas E. Luebben, Jr., Native American Legal Defense & Ed. Fund, Inc., Albuquerque, N. M., for appellees.
    Before SETH and HOLLOWAY, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   SETH, Circuit Judge.

This action was commenced by the appellees who are members of an Indian Tribe and whose names appeared on the ballot at the tribal election of members of the Business Council for the Tribe. The suit challenges the validity of the votes cast for the write-in candidates at the election asserting a violation of their rights under the tribal constitution and under the equal protection and due process clauses of the Indian Civil Rights Act [25 U.S.C. § 1302(8)]. An earlier reported opinion from the district court, in which appellants’ motion to dismiss was denied, appears sub nom. McCurdy v. Steele, 353 F.Supp. 629 (D.Utah). Thereafter the case proceeded to final judgment on the merits, and the appellees were granted injunctive relief in the manner requested, which relief included certification of their election to the Business Council, and an injunction restraining appellants, Hubert Steele, Jim Steele, and Henry Pete (who were the write-in candidates)', and Leo Pete, from purporting to act on behalf of the Confederated Tribes as its Business Council. The order of the district court has been stayed pending this appeal.

The Confederated Tribes of the Goshute Reservation organized themselves in 1940 under the provisions of the Indian Reorganization Act [25 U.S.C. § 476], and adopted a Constitution and Bylaws. Under its Constitution the principal tribal governing body is the Business Council consisting of five members elected to three-year terms. Article V, Section 5 of the Goshute Constitution provides that any qualified voter may become a candidate for the Business Council, and that “[h]e shall file notice of his candidacy with the Secretary of the Business Council at least fifteen days prior to the election.” The dispute as to whether write-in candidates are permitted centers upon this provision.

In early 1972 the members of the Business Council then in office were recalled, and an election of a new Council was scheduled for April 29, 1972. Members of the recalled Council included the appellants, Hubert Steele, Jim Steele, Henry Pete, and Leo Pete. A three-member Election Board consisting of Hubert Steele, Jim Steele, and Henry Pete was appointed by the outgoing Council.

The appellees (Molley McCurdy, Buster McCurdy, Earl Baker, Willie Murphy, and Arthur Johnson) were the only Council candidates who filed notice of their candidacies in accordance with Article V of the Goshute Constitution, and were thus the only candidates whose names appeared on the election ballot. In an unusual turn of events, however, the appellees were not victorious in the election. Hubert Steele, Jim Steele, Henry Pete, and two other persons were able to wage a successful write-in campaign among the small number of Goshute voters and received the largest number of the votes at the election.

Since the election, the Election Board has not certified any candidates as being duly elected, and thus officially has taken no position on the write-in issue. The Goshute Constitution requires such a certification within five days after an election. On June 8,1972, Hubert Steele, Jim Steele, Henry Pete, and Leo Pete held a purported Business Council meeting at which they scheduled a new Council election and appointed a new Election Board. The new Election Board also has not certified any candidates as elected in the April 29th election, nor has the second election ever been held. The four members of the recalled Council have continued to hold over and to function as the Business Council throughout these proceedings.

In addition to petitioning the Election Board for certification as winning candidates, the appellees, prior to bringing this action, attempted to secure recognition from the Bureau of Indian Affairs as the duly elected members of the Business Council. Their attempt ended at the Phoenix Area Office, however, with a ruling from the Area Director that their appeal was premature in view of the fact that no winners had been certified by the Election Board. Although Department of the Interior Regulations provide for additional appeals to the Commissioner of Indian Affairs and the Secretary of the Interior [25 C.F.R. § 2.1 et seq.], the appellees chose not to pursue them.

We have noted in earlier cases that the Indian Civil Rights Act was directed primarily to the administration of justice by tribal authority, rather than to tribal governmental structure, office-holding, or elections. Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir.). The rights mentioned in the Act were created between tribal authority and members of the tribe. The Act commences by stating that: “No Indian tribe in exercising power of self-government shall . . . . ” The Act tracks to some extent the language of the United States Constitution, but this does not necessarily mean that the terms “due process” or “equal protection” as used in the Act carry their full constitutional impact. As we observed in Groundhog v. Keeler, 442 F.2d 674 (10th Cir.), which was a case in which the manner of selection of the Principal Chief of the Cherokee Nation was challenged, the legislative history of the Act makes it clear that the provisions of the Fifteenth Amendment and certain procedural provisions of the Fifth, Sixth, and Seventh Amendments as well as some aspects of Fourteenth Amendment equal protection were not meant to be included among the enumerated rights. But we do not reach the question of the application of the Indian Civil Rights Act because the availability of any remedy in the federal courts has certain prerequisites which the trial court did not here require the parties to meet. This we must hold to be error.

The plaintiffs have asked the courts in effect to make the initial decision as to a detail, albeit an important one, in the mechanics of a tribal election. Whether or not write-in candidates should be permitted to run at the election of the Business Council would seem to be a question well within internal tribal matters, political matters, and upon which the Goshute Tribe should make a decision before intervention by the federal courts. The resort to the courts under the circumstances before us was premature, especially in view of the presumption against intervention in tribal election matters. It is obvious that individual members of the Tribe have recourse to the courts at the proper time if they can allege a cause of action. The plaintiffs here have not demonstrated that this is the proper time for the reason stated above — that the Tribe has not yet really decided the question sought to be brought before the court, and this litigation has forestalled further consideration by tribal officials. The matter sought to be brought before the court prior to a final tribal decision does not present a controversy in justiciable form. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. The court cannot or should not make a decision in the absence of a clear case or controversy. See Grand Canyon Dorries, Inc. v. Walker, filed August 20, 1974, 500 F.2d 588 (10th Cir.). See also United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476, and Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666.

As a reason for hearing the suit, the trial court found that there was no specific tribal agency nor procedure to hear a controversy such as this. There was no testimony taken, and instead there was a short stipulation of facts which is not helpful on this point. The court had before it the Goshute Constitution, the Notice of Election, List of Candidates, the ballot, and affidavits by various persons as to whether write-in candidates were permitted in the elections conducted by other tribes. The trial court, in failing to find specific provision for a problem such as this, assumed there was no way in which the Tribe could resolve the matter. The trial court said: “A judicial system for the hearing of matters such as those in question apparently does not exist.” The trial court then assumed that “most likely” the matter would come before the Business Council. The court thus concluded that “tribal remedies appear inadequate and need not be exhausted.” It makes no difference on this point whether or not the matter would come before the Council as it would be the basic agency, and its decision is subject to review through established channels. A start must be made.

Thus there should be given to the tribal authorities an adequate opportunity to resolve the problem. This should be done whether or not specific machinery is provided for the resolution of such a particular problem in the Goshute Constitution. The Business Council under the tribal constitution can promulgate and enforce ordinances, and is authorized to create agencies for the enforcement thereof. The Supreme Court has indicated the need to recognize the extent of the authority of a tribe over its own activities. See Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251. In any event, the fact that tribal procedures for handling internal political disputes such as this are not specifically provided for in the tribal constitution does not justify immediate intervention by the courts. Inherent in the authority to govern itself is the authority of the tribe to determine the manner in which differences are resolved and the manner in which its leaders are selected. The scope of this authority may ultimately have to be tested under the Indian Civil Rights Act; however, as we observed in Groundhog v. Keeler, and again in Slattery v. Arapahoe Tribal Council, the Act was intended to interfere only minimally with the tribal political processes. Applying this standard as to both time and substance, we must hold that the instant controversy demands in the first instance an opportunity for a tribal solution.

No candidates have been certified, and it may be inferred from the record that the new election was not held by reason of this suit, and a certification of election was likewise forestalled. A motion was filed for a temporary restraining order to prevent defendants from acting in any official capacity. The motion was referred to by the trial court in its ruling on a motion to dismiss, with an indication that a ruling would be made, but it was not thereafter ruled upon according to the record before us. It must be concluded that the result thereof was that the “new” election was not held and no candidates were certified. The intervention of the courts thus prevented a new election which could well have been an answer to the basic problem of who were to be members of the Council without the need to then resolve the write-in issue. Thus if this was a tribal solution, it was aborted by the litigation; if it was not, then there has been made evident no official tribal position. A certification could also have been a decision, and it was likewise precluded although it is apparent also that other prerequisites may exist.

In view of the time of the commencement of this litigation, we do not have a situation where the plaintiffs were faced by inaction of an extended duration, and the consequences thereof are not before us. It is, however, apparent that inaction of the tribal officials cannot prevent an ultimate resolution of the problem administratively or by the courts. As to the delay, the plaintiffs allege they petitioned that they be declared elected (certification) on May 3d. Also the record shows that the holdover Council met on June 8, 1972, and called the new election. This suit was filed on July 25, 1972.

On a somewhat different and separate point, an additional reference must be made to the allegations of the complaint in the context of our prior decisions. We have quoted the portion of Article V, Section 5 of the Goshute Constitution sought to be interpreted by the plaintiffs. While it establishes a filing requirement for Business Council candidates, it does not indicate whether that requirement is a prerequisite to being elected to office or simply a method of having one’s name placed on the ballot. Either construction seems plausible, and we know of no principle of due process or equal protection that would unerringly favor one over the other. Neither do we know of a theory of due process or equal protection that demands or proscribes the use of write-in ballots. While we recognize that there may be some additional facts in this case which could enlarge the issue beyond the simple choice of whether or not to recognize write-in ballots, that choice is the basic issue raised by the allegations of fact in the complaint. This court in Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir.), held that the pleadings of the parties there did not assert the existence of any facts to show a deprivation of rights under 25 U.S.C. § 1302. Thus the pre-Indian Civil Rights Act rule expressed in Martinez v. Southern Ute Tribe, 249 F.2d 915 (10th Cir.), was applied. (See also Motah v. United States, 402 F.2d 1 (10th Cir.), and Prairie Band of Pottawatomie Tribe of Indians v. Puckkee, 321 F.2d 767 (10th Cir.)). The court expressly declined to decide whether 25 U.S.C. § 1302(8) was applicable to the tribal enrollment practices in view of the allegations in the complaint. This court in Groundhog v. Keeler, 442 F.2d 674, again found that the complaint did not state facts showing a violation of the Indian Civil Rights Act. Here again we are in a similar situation, and, in addition, are at the very most in only a preliminary stage of the dispute. The pleadings show that there was no definitive response by tribal authorities to the issue before the suit was filed, and the controversy was not framed before the suit was filed. It had not really become a justiciable dispute.

The judgment must be reversed with directions to dismiss the cause without prejudice.


author: MULLIGAN, Circuit Judge:

text:
    CAPITAL TEMPORARIES, INC. OF HARTFORD, et al., Plaintiffs and Appellants, v. The OLSTEN CORPORATION, Defendant and Appellee.
    No. 68, Docket 74-1077.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 19, 1974.
    Decided Oct. 17, 1974.

      Ralph C. Dixon, Hartford, Conn. (Day, Berry & Howard, Philip S. Walker, Au1 gustus R. Southworth III, Hartford, Conn., on the brief), for plaintiffs-appellants.
    Irving S. Ribieoff, Hartford, Conn. (Ribieoff & Kotkin, Richard W. Tome, Hartford, Conn.; Fain & Konover, Matthew J. Forstadt, Stamford, Conn., on the brief), for defendant-appellee.
    Before MOORE, MULLIGAN and ADAMS , Circuit Judges.

       Of the Third Circuit Court of Appeals, sitting by designation.

   MULLIGAN, Circuit Judge:

This is an appeal from a partial summary judgment entered by the District Court for the District of Connecticut, Hon. M. Joseph Blumenfeld, on October 15, 1973, dismissing the fifth count of the plaintiff’s amended complaint. 365 F.Supp. 888 (D.Conn.1973). The ruling of the district court also denied the plaintiff’s cross-motion for summary judgment on the same count, rejecting plaintiff’s contention that there was no genuine issue as to any material fact and that the defendant, as a matter of law, had imposed a tie-in, illegal per se under section 1 of the Sherman Act. Thereafter, on October 25, 1973, plaintiff moved to amend the judgment, pursuant to 28 U.S.C. § 1292(b), to include a statement that it involved a controlling question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate termination of the litigation. By order dated December 4, the District Court amended the judgment to include the necessary statement but did not state what the controlling question of law was.

On December 21st, the plaintiff filed a petition for leave to appeal, setting forth the controlling question of law in these terms:

The question involved in this appeal is whether the plaintiff must establish actual coercion, outside of the agreement, to operate the tied business, in order to maintain its antitrust action, or is it sufficient to show that the plaintiffs were restricted by the contract imposed by the defendant in operating any blue collar business other than under the HANDY ANDY mark with the payment of franchise fees to the defendant.

On January 9th, 1974, this court granted leave to appeal pursuant to § 1292(b) and rule 5, Fed.R.App.P. On March 22, the plaintiff, in designating the part of the record to be included in the appendix, stated that the question on appeal was whether the district court erred in granting the defendant’s motion for summary judgment. Defendant then moved for an order to limit the statement of issues to the controlling question of law presented in plaintiff’s petition for leave to appeal; on April 18th, this court granted that motion. On this appeal the plaintiff-appellant’s brief raises not only the controlling question of law, but also the propriety of the granting of summary judgment dismissing the fifth count. The defendant has moved to dismiss the appeal on the ground that the issues raised are broader than the question which was specified by the order of this court.

I THE MOTION TO DISMISS

Before discussing the merits of this appeal, we face the question as to whether or not this court can appropriately consider the argument, now made by plaintiff, that in addition to the question posed as the controlling issue of law, the court below committed error by the granting of summary judgment. Section 1292(b) permits an appeal from an interlocutory order where the order involves “a controlling question of law as to which there is substantial ground for difference of opinion and [where] an immediate appeal from the order may materially advance the ultimate termination of the litigation. . . . The Court of Appeals may, ... in its discretion, permit an appeal to be taken from such order. . . .” (emphasis supplied). Once such leave to appeal is granted, the court of appeals “is not restricted to a decision of the question of law which in the district judge’s view was controlling.” Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (en banc). Accord, Johnson v. Alldredge, 488 F.2d 820, 822-823 (3d Cir. 1973).

Since the appeal therefore places before us the order granting partial summary judgment dismissing the fifth count of the complaint, we believe that judicial economy requires that we address ourselves not only to the question posed but also to the propriety of the issuance of the summary judgment. 9 J. Moore, Federal Practice ¶ 110.25 [1], at 273 (2d ed. 1973). See also Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67, 70 (2d Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966). The motion to dismiss the appeal is therefore denied.

II THE FACTS

Defendant, The Olsten Corporation (Olsten), a Delaware corporation with its principal place of business in New York, is engaged in the business of supplying temporary personnel to customers. It supplies both “white collar” or office personnel under the name and registered trademark of “Olsten,” and “blue collar” or non-office workers under the name and registered trademark of “Handy Andy Labor”. These services are supplied in many cities throughout the United States and Canada either through Olsten branch offices or through franchises listed by Olsten. In 1965, Constantine T. Zessos, a salesman with no previous personnel-business experience, entered into negotiations with Olsten which culminated in a franchise agreement executed on September 17, 1965. This agreement provided Zessos the exclusive license to use both of defendant’s trademarks and names, plus various techniques and systems, in Hartford and Middlesex counties in the State of Connecticut. A rider executed by the parties on the same date also conferred upon Zessos the right to operate a white collar franchise in the County of New Haven provided it was opened within 18 months after the first billing rendered by the Olsten’s Hartford office.

Zessos attended a course provided by Olsten and also received various supplies and forms necessary for the business. Pursuant to the license agreement, Zessos started his white collar operation in Hartford in January, 1966, and a similar operation in New Haven some time thereafter. These were incorporated as Olsten’s of Hartford County, Inc. and Olsten’s of New Haven County, Inc.; the names were later changed in November, 1971 to Capital Temporaries, Inc. of Hartford and Capital Temporaries, Inc. of New Haven. These latter corporations are presently plaintiffs in this action together with Zessos.

No blue collar operation was commenced by Zessos in Hartford, but in 1968 and 1969 he negotiated an amendment to the initial agreement. The amendment, executed on August 23, 1969, extended Zessos’s time to open a Handy Andy office in Hartford and New Haven to December 31, 1969. In September, 1969, he did open a Handy Andy office in New Haven, which remained in operation until June, 1971.

On November 1, 1971, Zessos repudiated the franchise agreement and acrimonious litigation ensued. Olsten sued Zessos in the Connecticut Superior Court to enforce the agreement and to recover franchise fees alleged to be due and owing under the agreement. Zessos then commenced this action in the District Court of Connecticut, alleging, inter alia, breach of contract, material misrepresentation, unfair competition, abuse of attachment process, and conspiracy to fix prices. Count five, the sole matter before this court, in essence urges that, in order to obtain an exclusive license to use the Olsten trade name and mark to operate a white collar franchise, Zessos was required to establish and operate a blue collar operation under the “Handy Andy Labor” trademark. According to the complaint, this constituted an illegal tie-in arrangement which is a per se violation of section 1 of the Sherman Act (15 U.S.C. § 1), as well as a violation of section 3 of the Clayton Act (15 U.S.C. § 14). The plaintiff’s cross-motion for summary judgment, however, is limited to the claim of a tie in violation of Sherman § 1. The tying product is alleged to be Olsten and the tied product, Handy Andy Labor.

Ill THE QUESTION POSED

A. The Necessity of Coercion

The first segment of the question posed as controlling is whether the plaintiff, in order to establish unlawful tying, must show actual coercion, outside of the agreement, to operate the tied business. The court below found that the record was “utterly devoid of evidence that Zessos was in any way coerced or compelled to open a Handy Andy office,” or “that Zessos attempted to free himself from the supposed burden of having to open a Handy Andy office, or that he bargained with Olsten for a white-collar franchise alone.” 365 F.Supp. at 894.

We do not think that there can be any question that no tying arrangement can possibly exist unless the person aggrieved can establish that he has been required to purchase something which he does not want to take. Unlike other exclusive-dealing arrangements, which Mr. Justice Frankfurter took pains to distinguish in Standard Oil Co. v. United States, 337 U.S. 293, 300-306, 69 S.Ct. 1051, 93 L.Ed. 1371 (1949), “[t]ying‘ agreements serve hardly any purpose beyond the suppression of competition,” id. at 305-306, 69 S.Ct. at 1058. Where a not insubstantial amount of commerce is involved, a tying arrangement constitutes a per se violation of section 1 of the Sherman Act. Northern Pacific Ry. v. United States, 356 U.S. 1, 6, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). However, before the plaintiff can become entitled to the benefit of the per se doctrine, and thereby escape the proof otherwise required to establish an undue or unreasonable restraint under the rule of reason approach, it is basic that he first establish that he is the unwilling purchaser of an. unwanted product. To that extent there must be a showing of some pressure exerted upon him. This principle has been articulated in this court by Chief Judge Kaufman in American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 446 F.2d 1131, 1137 (2d Cir. 1971), cert. denied, 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed.2d 752 (1972): “[TJhere can be no illegal tie unless unlawful coercion by the seller influences the buyer’s choice.”

The question raised in the pertinent cases is not whether coercive pressure is used but how can it be established. In International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947) defendant sought to extend its patent monopoly on machinery by requiring the lessee of the machines to buy only the defendant’s salt for use therein, thus depriving the lessee of the-right to use other suppliers and foreclosing him from other purchasers. The coercion resulted from the existence of the patented machinery.

In Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 608-609, 73 S.Ct. 872, 97 L.Ed. 1277 (1953), the Court commented that tying arrangements are per se violative under Sherman § 1 if the seller enjoyed a “monopolistic” position in the market for the tying product and a substantial volume of commerce in the “tied” product is restrained. But in the later case of Northern Pacific Ry., supra, the Court defined monopolistic power as “sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product,” 356 U.S. at 6, 78 S.Ct. at 518; and a not insubstantial amount of commerce must also be involved. In United States v. Loew’s Inc., 371 U.S. 38, 45, 83 S.Ct. 97, 102, 9 L.Ed.2d 11 (1962), the Court added: “Even absent a showing of market dominance, the crucial economic power may be inferred from the tying product’s desirability to consumers or from uniqueness in its attributes”; such power is presumed when the tying product is patented or copyrighted.

In its most recent discussion of the tying problem, Fortner Enterprises v. United States Steel Corp., 394 U.S. 495, 505 n. 2, 89 S.Ct. 1252, 1259, 22 L.Ed.2d 495 (1969), the Court took pains to point out that “[ujniqueness confers economic power only when other competitiors are in some way prevented from offering the distinctive product themselves. Such barriers may be legal, as in the case of patented or copyrighted products. . . ” The Court also stated: “Such appreciable restraint results whenever the seller can exert some power over some of the buyers in the market, even if his power is not complete over them and over all other buyers in the market,” id. at 503, 89 S.Ct. at 1258.

In this court’s latest foray into the tying problem, Chief Judge Kaufman, in discussing the Loew’s rule, stated that “[pjroduct separability based on quality differentiation has been an essential ingredient in a long line of tying cases.” Coniglio v. Highwood Services, Inc., 495 F.2d 1286, 1291 (2d Cir. 1974).

From this review of the cases we conclude that the plaintiff must establish that he was the unwilling purchaser of the tied product. If he was not coerced by the economic dominance of the seller, he at least must show that he was compelled to accept the tied product by virtue of the uniqueness or desirability of the tying product, which other competitors could not or would not supply.

B. Uniqueness and Desirability

The appellant here argues that since the tying service franchised to him (Olsten) was trademarked, the economic power of the defendant must be presumed. We reject this proposition. In the first place, no Supreme Court decision has gone any further than to presume economic power in those cases where the tying product is patented or copyrighted. In such cases, as Mr. Justice Black pointed out in Fortner, supra, 394 U.S. at 505 n. 2, 89 S.Ct. 1252, the tying product is unquestionably distinctive and is protected by the statutory grant. However, a trademark or name merely identifies the franchiser. There is no suggestion at all in the record before us, and no claim is made on appeal, that there is something so unique in the temporary office techniques or modus operandi of Olsten that it could not be offered by others. As the Supreme Court has said, a trademark right is not “a right in gross or at large, like a statutory copyright or a patent for an invention .... There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed.” United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 50, 63 L.Ed. 141 (1918). As a practical matter since almost everything sold today is trademarked, the consequences of adopting appellant’s position would be troublesome.

Secondly, this circuit has already held that a trademark qua trademark is not a sufficient indication of dominance over the tying product to qualify for per se treatment under the Northern Pacific rubric. Susser v. Carvel Corp., 332 F.2d 505, 519 (2d Cir. 1964) (Friendly, J.) (separate opinion), cert. dismissed as improvidently granted, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284 (1965). It is instructive to note that Chief Judge Lumbard, in dissenting from Judge Friendly who wrote for the majority on this point, considered the tying product not simply the Carvel trademark but also nine design patents covering machinery and 20 other appurtenant trademarks. “It is the lease or license of the trademark itself, buttressed by this array of patents and subsidiary trademarks, to which are tied the other products.” Id. at 513.

> Thirdly, to our knowledge it has never been held that the sale of two trademarked, copyrighted, or even patented commodities, without more, constitutes a tying arrangement. The appellant misreads Loeuo’s if he concludes that the mere existence of the copyrighted tying motion pictures was enough to create the tying. The tied films were also copyrighted, so that if copyright were the sole factor there would have been a countervailing power. The tying was created by the attractiveness of some of the films, as contrasted to the inferior quality of the others also required to be purchased in the package. Thus the Court in its opinion cited the trial court’s “apt example” of forcing a television station which wants “Gone With The Wind” to take with it “Getting Gertie’s Garter.” United States v. Loew’s Inc., supra, 371 U.S. at 48 n. 6, 83 S.Ct. 97. Once the attractiveness of the tying product is established, the economic power test is then met by the patent or the copyright, since competitors cannot offer the distinctive product (e. g., Gone With The Wind) without violating the patent or the copyright of the tier. Fortner, supra, 394 U.S. at 505 n. 2, 89 S.Ct. 1252.

In urging us to find sufficient economic power in the mere existence of Olsten’s trademark, appellant places reliance upon two franchise cases in other circuits, Warriner Hermetics, Inc. v. Copeland Refrigeration Corp., 463 F.2d 1002 (5th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 688, 34 L.Ed.2d 673 (1972), and Siegel v. Chicken Delight, Inc., 448 F.2d 43 (9th Cir. 1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1172, 31 L.Ed.2d 232 (1972). It might be sufficient to say that Carvel from this circuit is contrary, as both Copeland and Chicken Delight recognize. More pointedly, all three involved a well-recognized and customary tying situation — the franchiser of a trademarked or named enterprise forcing his franchisee to purchase commodities not wanted but allegedly necessary to maintain product quality. In Carvel and Chicken Delight, the franchiser required the franchised outlet to purchase certain supplies which purportedly promoted more delectable ice cream and more succulent poultry. In Copeland, the defendant was the nation’s largest producer of rebuilt commercial refrigeration compressors and parts; its franchised wholesaler dealers, in replacing failed refrigerators, were required to use Copeland parts exclusively, albeit at a healthy discount from the suggested retail price. All of these cases were traditional tying situations and were so recognized by all the courts, except that the majority in Carvel failed to find that the tying product (the trademark) had the requisite leverage, 332 F.2d at 519.

These cases involved questions of market dominance and product quality maintenance not before us because here the plaintiff has not even established any tie-in. As we have pointed out, there is no showing that Olsten’s white collar business is any more attractive, unique, desirable, or effective than any other. All that appellant argues is that the mark is distinctive, but not that the service is. Even proceeding on a per se theory (for which there is no basis at all in our judgment), there is no showing that Olsten dominated any market or any group of buyers, actual or prospective, of temporary office personnel franchises. The complaint on appeal that the lower court ignored the fact that a not insignificant amount of interstate commerce was involved fails to recognize that, since there is no tie-in, the business consummated is irrelevant. As far as the record is concerned, appellant’s recitation that he was an innocent purchaser who had not even heard of Olsten before he was approached demonstrates not simply unequal bargaining power (which must almost always be present when an individual entrepreneur seeks a business relationship with an established franchiser), but also that Olsten was hardly a household name even to this college graduate marketing major.

C. Compulsion by Contract

The controlling question next asks whether the compulsion creating the tying can be provided by the franchise agreement itself, which, appellant contends, required him to open a Handy Andy operation in Hartford “commencing 6 months from the date hereof” (September 17, 1965). The amendment to the agreement executed on August 23, 1969 extended Zessos’s time to open a Handy Andy office in Hartford and New Haven to December 31, 1969. As we have indicated in reciting the facts, Zessos never opened a blue collar operation in Hartford; his blue collar operation in New Haven started in September, 1969 and was terminated by him in June, 1971.

The court below construed paragraph 2 of the agreement as a provision which granted Zessos only the option to use the Handy Andy license if he desired to enter the blue collar business, in which case he could not exercise the option until after 6 months. Moreover, the court below found as a matter of law that the plain language of the contract did not bind Zessos in any way to enter the blue collar business (365 F.Supp. at 896). The court’s opinion details evidence submitted on the motion, including Zessos’s own deposition, which would indicate that there was a gentleman’s agreement that no blue collar operation had to be commenced within any set time limit despite the plaintiff’s interpretation of the contract, and further that Zessos was not, in fact, unwilling to open the New Haven Handy Andy. We do not share the view of the court below that the language of the agreement is so pellucid. However, the conduct of the parties prior to the amendment would bear out this interpretation, even if the language is ambiguous. The court below also noted that the agreement provided for only one franchise fee ($6000), for the white collar operation; there was no mention of any allocation of this fee to, or any additional fee for, Handy Andy.

Accepting arguendo the plaintiff’s interpretation of the contract, it does not follow that because the contract required the opening of a blue collar operation, it was therefore a tying arrangement. Quite obviously, a franchise agreement, like any contract of sale, may obligate the purchaser to accept numerous commodities, trademarked or not; this does not mean that the purchaser was coerced in any fashion to take some or all to get one or some. This is again the fatal flaw in appellant’s case. While Zessos did testify on his deposition that the two services were sold as a package, there is no proof or evidence to suggest that he objected to the package, that he was only interested in a white collar operation, that the blue collar operation was forced upon him, or (as we have stated before) that the Olsten white collar mark and service were so unique and attractive that he had no alternative. He also asserts that he did not want to operate a blue collar operation in 1968 or 1969, but this is totally consistent with the position that, although he agreed initially he later changed his mind. Moreover, as the court below indicated, Zessos’s own notes in 1969 stated: “I’m certainly going to open another Olsten office everywhere I can.— Open Handy Andy & these office [sic] at my option. — Dec. 31, 1969.”

D. Exclusive Dealing

The second segment of the “controlling” question reads: “[i]s it sufficient [for plaintiff’s antitrust action] to show that the plaintiffs were restricted by the contract imposed by the defendant in operating any blue collar business other than under the HANDY ANDY mark with the payment of franchise fees to the defendant.”

It is difficult to understand how this can be a controlling question on the appeal since the record does not indicate that the argument was ever raised below. It represents a different interpretation of the contract than that which appellant maintained below and on this appeal. It is not based on any language in para. 2 of the agreement, but on paras. 25 and 26.

The first of these precludes the franchisee from competing “directly or indirectly with the operation of temporary office personnel business.” This by itself has no antitrust significance; if the argument is that blue collar is a competing business, then it is in conflict with the appellant’s continuing position that the latter is a totally separate and distinct operation. Para. 26 is a typical -restrictive covenant preventing the licensee, upon termination of the franchise agreement, from entering into a similar business, directly or indirectly, within a limited geographic area and time period. This paragraph defines “similar business” as one providing “personnel whether temporary or permanent with or without fee.” Assuming that the two paragraphs can be read together, and that the agreement can in fact be construed to restrict plaintiff to defendant’s blue collar business, there is still no conceptual relationship to tie-ins. As we have pointed out recently in Bradford v. New York Times Co., 501 F.2d 51 (2d Cir. 1974), restrictive covenants of this nature have invariably been litigated in state courts or in diversity cases in federal courts applying state law. They do not rise to the status of Sherman Act violations; in fact, no court applying the rule of reason has ever held them to be violative of the Act, Bradford at 59. And they are certainly not of per se stature.

Aside from the restrictive covenants, there is nothing in the agreement to support the construction now urged. Even if the contract be so construed, it would not amount to a tie-in (which is what plaintiff claims in his fifth count) but a form of exclusive dealing which, in any event, cannot be a per se violation of Sherman § 1 or Clayton § 3. Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961). The latter section is the normal basis for an exclusive-dealing case but, as we have pointed out, no commodities are involved here and hence Clayton § 3 is inapplicable.

We conclude that the controlling question posed, while hardly precise and in part probably irrelevant, nonetheless deserved a response in which we found no error below and no solace for the appellant within the agreement or the interstices thereof. There is no demonstration whatsoever that Zessos was coerced or even seduced into the acceptance of the blue collar business. While the advantages to a plaintiff of the per se doctrine are obvious, the tying alleged here is ersatz at best.

IV SUMMARY JUDGMENT

Aside from the assertions of error with respect to the substantive issues raised here, appellant urges that the court erred in any event in granting summary judgment since' there were material issues of fact which could not be determined without a trial by jury. The fact that the plaintiff himself cross-moved for summary judgment below, while significant, does not bar his raising the issue on appeal; however we do not find any genuine issue of fact which requires trial.

Zessos argues that para. 2 of the agreement is ambiguous and that the court below erred in holding it to provide the franchisee merely an option to open a Handy Andy. However, even if appellant’s construction is accepted, we have already pointed out that no tying agreement emerges. Zessos also argues that if coercion be required then the “motives” of the buyer become an issue. However, since he has failed to establish any tying at all, it is difficult to see how his “motives” are crucial. He relies on Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 472-473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) for the position that summary procedures should be used sparingly in complex antitrust litigation where motive and intent play important roles. Aside from the fact that the litigation before us is hardly complex and is of spurious Sherman Act stature, the Court in Poller was considering charges of wide-ranging conspiracy both to restrain trade and to monopolize under sections 1 and 2 of the Sherman Act. Where there is conspiracy or attempt to monopolize, courts do require proof of specific intent, and this normally involves trial. See United States v. Alcoa, 148 F.2d 416, 431-432 (2d Cir. 1945). We have no such requirement in tying cases. The same argument based upon Poller was recently rejected by this court in affirming a summary judgment in a tying case. Coniglio v. Highwood Services, Inc., supra, 495 F.2d at 1292-1293.

Appellant finally alleges that in any event, quite aside from per se tying, he has urged (in para. 40 of his complaint) that the defendant has restrained competition in the blue collar franchise market and that this issue has not been litigated below. However, para. 40, if read in its entirety, provides:

The defendant’s unique registered trade name and trade mark OLSTEN’S, in combination with its demonstrated power to require the tie-in of a Handy Andy Labor operation in order to obtain a white collar Olsten franchise, is in fact and as a matter of law, sufficient economic power appreciably to restrain competition in the blue collar franchise market.

It is clear that para. 40 and the entire fifth count are devoted to the plaintiff’s theory that there was a tie-in sale here. Further, thery is nothing suggested even on appeal that any market study would evidence any dominance by defendant at all, in either the white or blue collar markets, in any relevant market area. Fortner, relied upon here again, involved not only restraint of trade but also monopolization under section 2 of the Sherman Act.

We further note here that only one count of the complaint (the fifth) has been dismissed, and in the sixth count the plaintiffs urge that para. 2 (among others) of the agreement constitutes a contract, combination, or conspiracy in violation of section 1 of the Sherman Act; therefore, plaintiff may have the opportunity to litigate this point again.

We conclude that there is no genuine issue of material fact here and that partial summary judgment dismissing the fifth count was appropriate.

      . There is no claim made that the trade name or mark here tied any commodities. It is only alleged to have tied the blue collar temporary personnel business, which we would conclude is a service and not a “commodity.” Hence section 3 of the Clayton Act is inapplicable. E. g., Advance Bus. Sys. & Supply Co. v. SCM Corp., 415 F.2d 55, 64 (4th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101 (1970) (Clayton § 3 is not applieable when either the tying or tied product is a service; here, service was defendant’s maintenance of its photocopy machines) ; MDC Data Centers, Inc. v. IBM, 342 F.Supp. 502, 504 n. 2 (E.D.Pa.1972) (Clayton § 3 by its terms does not cover services; here, engineering services performed by defendant on its leased equipment); United States v. Jerrold Electronics Corp., 187 F.Supp. 545, 554 (E.D.Pa.1960), aff’d per curiam, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 896 (1961) (government conceded that Clayton § 3 does not apply to tie-ins involving services; here, service contracts to maintain and install defendant’s antenna systems). See Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 609 & n. 27, 73 S.Ct. 872, 97 L.Ed. 1277 (1953) (government did not proceed under Clayton Act because it believed advertising space was not a commodity; Supreme Court expressed no view on that interpretation).

      . In a later case involving the same Oarvel franchise agreements, Carvel Corp., [1965-1967 Transfer Binder] Trade Reg.Rep. — FTC Complaints & Orders ¶ 17,298 (FTC 1965), the Federal Trade Commission did not even consider the arrangement to constitute a tying situation since “it is conceptually impossible . to view a license to use a trademark as separate and distinct from the sale of the trademarked product or its ingredient,” id. at 22,426. The opinion is discussed in 1 M. Handler, Twenty-Five Years of Antitrust 643-52 (1973); S. Oppenheim & G. Weston, Federal Antitrust Laws 606-08 (3d ed. 1968); and I. L. Schwartz, Free Enterprise and Economic Organization 669 (3d ed. 1966).

      . One hardly has to be a film aficionado to recognize that the actual package offered in Loew’s was only slightly less bizarre, if at all. Thus to get “Treasure of the Sierra Madre,” “Casablanca,” “Johnny Belinda,” “Sergeant York,” and “The Man Who Came to Dinner,” the station involved also had to take “Nancy Drew Troubleshooter,” “Tugboat Annie Sails Again,” “Kid Nightingale,” “Gorilla Man,” and “Tear Gas Squad.” 371 U.S. at 41-42, 83 S.Ct. 97. The latter hardly qualify as film classics.

      . As we have already noted, the presence of the trademark does not at all prevent a competitor from duplicating the distinctive features of the allegedly tying product; see Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compeo Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). He is only precluded from infringing on the mark. Judge Blumenfeld’s observation below that Fortner somehow vindicates the dissenting opinion in Carvel (365 F.Supp. at 892 & n. 9) must be clarified. While it is true that Fortner further diluted the market dominance criterion for tying, the elucidation of the product desirability factor we have just discussed would disqualify the trademark as a tying attribute of the copyright-patent genre. In any event since Carvel involved franchising and Fortner did not, perhaps more significant is the Supreme Court’s benevolent attitude toward vertical restrictions upon franchisees, expressed in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 379-380, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). The Court there refused to apply a per se approach to such restrictions where there was no sale of a product. Here, of course, there is no claim that the franchiser tied any commodities which he sold.

      . “The grant of the license hereunder includes the right of the LICENSEE to use the trade mark and name HANDY ANDY LABOR. All ‘blue collar’ personnel shall be supplied by a division of the LICENSEE designated as HANDY ANDY LABOR commencing six (6) months from the date hereof. For the purposes of standards and rate of franchise fee, the total of all billings from whatever source shall be included.
      “The division shall be known as HANDY ANDY LABOR, a division of OLSTEN’S OF GREATER HARTFORD, INC. At the option of the LICENSEE, such division may be operated as a separate corporate entity. In such event, it shall be designated as HANDY ANDY LABOR OF GREATER HARTFORD, INC. In either event, separate bookkeeping shall be kept for the ‘blue collar’ division. In the event the LICENSEE incorporates, all of the provisions as set forth in paragraph 23 shall apply.”

      . The appellant urges that the language of the agreement clearly required the opening of a Handy Andy operation; if this were so, the subsequent conduct of the parties would be irrelevant since Sherman § 1 condemns the contract in restraint of trade and not the later behavior of the parties. Appellant relies here on the oft-cited footnote 59 in United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224-226, 60 S.Ct. 831, 84 L.Ed. 1129 (1940), a price fixing case, although the rationale would seem clearly applicable to any per se violation — assuming we were dealing with one.

      . Cf. American Mfrs. Mut. Ins. Co., supra, in which plaintiff, a TV sponsor, sued a TV network for allegedly forcing plaintiff to sponsor its products on both desirable and undesirable stations, the latter being tied into the former. This court, in finding no illegal tying arrangement, noted : “[Plaintiff] did not persevere long enough with its ideal [TV] lineup to feel any economic pressure from ABC, and we cannot know whether ABC would ever have tried to bring any such pressure to bear.” 446 F.2d at 1137.

      . E. g., Eagle v. Louisiana & S. Life Ins. Co., 464 F.2d 607, 608 (10th Cir. 1972); Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968); Jacobson v. Maryland Cas. Co., 336 F.2d 72, 74-75 (8th Cir. 1964), cert. denied, 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558 (1965).


author: WIDENER, Circuit Judge:

text:
    WESTINGHOUSE ELECTRIC CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-2476.
    United States Court of Appeals, Fourth Circuit.
    Argued May 1, 1974.
    Decided Nov. 4, 1974.
    Arthur MeM. Erwin, Spartanburg, S. C. (Thomas C. Bradley, Jr., and Erwin & Bradley, Spartanberg, S. C., on brief), for petitioner.
    William L. Corbett, Atty., N. L. R. B. (Peter G. Nash, Gen. counsel, John S. Irving, Deputy Gen. counsel, Patrick Hardin, Associate Gen. counsel, Elliott Moore, Deputy Associate Gen. counsel, and Alan D. Cirker, Atty., N. L. R. B, on brief), for respondent.

      Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This petition seeks to review and set aside an order of the National Labor Relations Board (Board) which held that Westinghouse Electric Corporation (Westinghouse) violated §§ 8(a)(5) and (1) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(5) and (1), by refusing to recognize the union as the bargaining agent for certain employees, and by unilaterally changing terms and conditions of employment for such employees without notifying and bargaining with the union which represented a bargaining unit at Laurel, Maryland. The NLRB cross-petitions for enforcement of the order. Jurisdiction is present under §§ 10(e) and (f) of the Act, 29 U.S.C. § 160(e) and (f).

The sole question on this appeal is whether a satellite service center established by Westinghouse at Manassas, Virginia was an accretion to the existing bargaining unit of servicemen located at Laurel, Maryland. The Board’s determination that the weight of the evidence supported a finding of accretion, of course, cannot be rejected unless arbitrary or capricious. NLRB v. Aerovox Corp., 390 F.2d 653 (4th Cir. 1968). Because we conclude that the Board’s conclusion is contrary to a more recent Board decision which we think requires a different standard than was applied here, we are of opinion that the Board’s determination was arbitrary, decline to enforce the order, and accordingly set the order aside.

The dispute arose in 1971 when Westinghouse decided to establish a satellite customer service facility at Manassas, Virginia, which was sixty miles away from a branch facility at Laurel, Maryland. Employees from the Laurel facility had been servicing Westinghouse customers in Washington, D. C., part of Maryland, including Baltimore, and part of Northern Virginia, while the bulk of the Northern Virginia area was serviced by independent contractors performing the service for Westinghouse under the administrative control of the Richmond area manager. Westinghouse determined that the Manassas facility was necessary because of numerous complaints about the service received from the independent contractors, plus the fact that the growth of Northern Virginia justified use of its own employees and facilities for such service. Also, the Laurel facility was too far away to efficiently and economically provide parts, and too small to handle the increase in warehousing space and administrative space needed for the growth in the Northern Virginia area. The independent contractors were to be replaced by Westinghouse after proper cancellation notice to each. The General Counsel does not contest that legitimate business reasons existed for the establishment of the Manassas facility or that it was for these reasons it was so established.

The Laurel service employees were members of the International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 1446 (union). The bargaining unit certified for these employees, in Article I of the collective hargaining agreement between Westinghouse and the union, is as follows:

“All servicemen, including senior servicemen and shop servicemen, employed by Westinghouse Appliance Sales at the Baltimore/Washington, D. C. distribution center located at Laurel, Maryland; excluding all other employees, clerical employees, salesmen, guards, and supervisors as defined in the Act.”

Pursuant to its plans, Westinghouse, in January, 1972, increased the number of servicemen at Laurel from 33 to 38, and changed the personnel numbers of five experienced Laurel servicemen, all of whom worked in the Northern Virginia area covered by Laurel, so that their work was charged to the Manassas budget. In April, 1972, Westinghouse transferred a supervisory employee from its Akron, Ohio facility to become the satellite service supervisor at Manassas; also, on April 24, it notified the five designated servicemen at Laurel of their prospective assignment to Manassas effective May 15. Although it was aware of the company’s plans, the union had not been directly informed concerning the new facility and transfers at this date, and the five employees affected were told that it would be their choice whether the new Manassas location was unionized or not. These employees were officially detached from Laurel and assigned to Manassas on May 15, 1972, at w;hich time they received a slight increase in pay because all Manassas employees were paid under the Westinghouse salaried employee plan, as opposed to their former status as hourly employees under the collective bargaining agreement at Laurel. The increase in pay was due to the fact that on May 15 all Westinghouse salaried employees, nationwide, both union and non-union, received a 4% wage increase.

On July 10, 1972, two more servicemen were transferred from Laurel to Manassas, and, in December, 1972, two additional servicemen were hired who had never worked at Laurel.

The union first complained to Westinghouse by letter on July 3, 1972, noting that checkoff dues for the five transferred employees had not been received, and that the Manassas employees had received wage and benefit improvements not received by those at Laurel. Westinghouse responded that Manassas employees were outside the certified bargaining unit, and that the service operation at Manassas was geographically separate and distinct, and both separate and independent with regard to organization, administration, and operation. Shortly thereafter, the charges involved in this case were filed by the union.

The organization of the Westinghouse Consumer Service Division is such that there are six regional service managers within the Division, each one reporting to the National Manager of Field Service. Laurel and Manassas are both in the Eastern Region, which covers (in whole or part) the territory from Maine to North Carolina. Reporting to the Eastern Regional Service Manager are three branch service managers, including the one at Laurel, and six area service managers. The Manassas satellite was one of three satellites assigned to the responsibility of the area service manager at Richmond, Virginia, the other two satellites being located at Norfolk and Richmond. As previously explained, branch operations are typically much larger than satellites. A significant difference between the jobs done by branch service managers and area service managers is that area managers are responsible for work done by independent contractors and servicing dealers, in addition to that done by Westinghouse service satellites, while branch managers are responsible only for their respective branches. A substantial part of the area under the Manassas service satellite was formerly under the Richmond area manager serviced by independent contractors. No branch service office has any satellite under its control. All satellites are under the control of area service offices, those in the Eastern Region being at Richmond, Hartford, Syracuse, Harrisburg and Philadelphia.

Basically, Westinghouse service employees’ duties consist of repairing Westinghouse appliances in the customer’s home or in apartment houses. Each serviceman uses a company truck which he is allowed to keep at home during off work hours. There were two “drop points” which the Laurel servicemen used, one at Alexandria, Virginia, and the other at College Park, Maryland, and a serviceman typically begins his workday by driving his truck to a designated drop point where he receives assignments for the day, leaves orders for parts, and picks up previously ordered parts. The servicemen are largely unsupervised; they physically report to the Manassas facility (as they did at Laurel) only once a month for a servicemen’s meeting, although they do make daily or more frequent telephone calls to a dispatcher to report on completed jobs. The repairmen call in after every second job. Messages to and from their immediate supervisors are also conveyed via these telephone reports.

Control of the Alexandria drop point was shifted from Laurel to Manassas after the Manassas facility opened, and Laurel servicemen no longer used it. Of the first five servicemen transferred, four used the Alexandria drop point when previously assigned to Laurel, and all five used it after their assignment to Manassas. Two later-hired servicemen, who lived nearer Manassas than Alexandria, used the Manassas facility itself as a drop point.

The five employees transferred all worked in Northern Virginia when previously assigned to Laurel, and the record shows that at least one serviceman occasionally made calls in Maryland. The five worked exclusively in Northern Virginia after their transfer to Manassas. The area of responsibility serviced by Manassas initially included all the area in Northern Virginia previously served by Laurel (all of the Arlington and Fairfax counties and parts of Prince William, Loudon, and Fauquier), plus possibly some additional territory. The Manassas area of responsibility did grow, as contemplated by Westinghouse, so that four months after opening and at the time of the hearing, thirteen months thereafter, it included the original territory plus the rest of Prince William, Loudon, and Fauquier counties, all of Stafford, and parts of Culpepper, Rappahannock, Madison, Spotsylvania, and Orange counties. A portion of the service calls in the expanded area were still being made by servicemen from independent contractors. None of the transferred servicemen moved his residence as a result of the assignment to Manassas.

On these facts, the Administrative Law Judge and the Board (which adopted the judge’s opinion without change of consequence here) found the Manassas operation to be an accretion to the certified unit at Laurel. The Board relied on the facts that all but two of Manassas’ first nine employees came from the certified unit at Laurel, that most of Manassas’ initial area of responsibility and much of its subsequent area was formerly serviced from the Laurel facility, and that the Manassas employees do substantially the same work with the same tools and in much the same area that they did before the transfer. The Board discounted the fact that the Manassas facility is sixty miles from the Laurel facility because the servicemen did not report to Manassas except for the monthly meeting, and most of the Manassas servicemen use the same drop point as before. Also relied on was the fact that no serviceman had to change his residence as a result of the transfer.

The Board was not impressed by the autonomous aspects of the two operations, noting that the servicemen have very limited contact with their superiors anyway, and that both operations are under the Eastern Regional Service Manager, and the same Industrial Relations Manager handles labor relations for both facilities (as he does for all Westinghouse operations nationwide). No weight was given to the company’s contention that, of the 24 branches and satellites with union contracts (out of 72 total branches and satellites), none of these contracts covered more than one location, satellites having their own union. The Board also gave no consideration to the fact that, in the entire Eastern Region, at least (the balance of the country is not disclosed by the record) no satellite facility is under the administrative control of a branch manager.

After finding an accretion and the §§ 8(a)(5) and (1) violations which necessarily followed from the company’s refusal to consult the union prior to transferring the employees and its refusal to recognize the union at Manassas, Westinghouse was ordered to essentially hon- or the Laurel collective bargaining agreement at the Manassas facility and to cease changing terms and conditions of employment without giving the union prior notice and an opportunity to bargain.

We think the Board should have applied the same reasoning here that it did in a later case, Pilot Freight Carriers, Inc., 208 NLRB 138 (1974). There, the Teamsters union contended that Pilot’s four terminals located in the State of Florida, and not covered by the national collective bargaining unit in the parties’ agreement, were accretions. The Board noted the variety of factors considered in determining whether a new facility is an accretion, such as “the integration of operations, centralization of managerial and administrative control, geographic proximity, similarity of working conditions, skills, and functions, common control over labor relations, collective-bargaining history, and interchange of employees.” 208 NLRB at 139 (1974 CCH NLRB § 26,200, p. 33,838). The Board then held that, although the functional integration present in Pilot’s operation pointed toward finding an accretion, such integration was “overwhelmingly counterbalanced” by “factors which show the Florida operations as a whole, or as separate terminals, to be separate appropriate units.” Specifically, the Board found no interchange or transfer of employees between the Florida region and other regions; the Florida operation was substantially autonomous with its own administrative and supervisory personel; the Florida employees are paid differently from Pilot employees elsewhere; and the Florida operation was geographically separated from the rest of the Pilot system. Equally as important, the Board held that extension of the contract might “ . . . do serious violence to the mandate that employees’ rights are to be protected and that appropriate unit findings under § 9(b) (of the Act) must be designed to preserve these rights.” The next paragraph continues: “We will not . under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the union to represent them.” 208 NLRB at 140 (Board quoting from Melbet Jewelry Co., Inc., 180 NLRB 107 (1969), at 109-110).

We think the employees in the present case as in Pilot Freight Carriers should have the opportunity to decide whether they want the union or not. The uncontradicted record shows that the two facilities, sixty miles apart, are as completely autonomous and self-sustaining insofar as management, personnel, administration, and supervision as any other branch or satellite within Westinghouse’s Eastern Region, which stretches from Maine to North Carolina. There has been no employee interchange at all, and the fact that the first seven Manassas servicemen were transferred from Laurel reflects nothing more than a common-sense decision in seeking to man the new operation with experienced employees, and with a minimum of expense and bother both to the transferred employees and to the company. There was no transfer of supervisory personnel from Laurel to Manassas, the lone supervisor there having been transferred from Akron, Ohio. Furthermore, after the Manassas operation got on its feet, there were no more transfers from Laurel; the last two servicemen hired at Manassas were not former Laurel employees.

There is nothing in the record to support an inference that the Laurel or Manassas facilities operated any differently than any other similar facility in the Westinghouse Consumer Service Division nationwide. Thus, the fact that the transferred servicemen were doing the same jobs with the same tools is of little or no consequence here, for it could show no more than that Westinghouse has attempted to standardize its service procedures at each of its facilities. The record shows that Virginia is under the control of the Eastern Regional Service Manager and is completely handled by an area manager at Richmond whose facilities include the satellites at Norfolk, Richmond, and Manassas. Also, the Manassas area of responsibility has increased substantially in the first thirteen months of its operation in area as well as in business, now covering all or parts of twice as many counties in Northern Virginia as were covered when Laurel handled the work. This growth of service area, coupled with the latest hirings of servicemen who were not from Laurel, and the complete removal of Laurel responsibility for Virginia service work, plainly shows that whatever similarities between the two facilities which existed at Manassas’ inception have eroded, as Westinghouse planned when it accomplished the change. Additionally, we should add that, in the face of the demonstrated separateness of the Manassas facility (it is as separate as any satellite in the system), no reason has been shown why the Board should depart from the collective bargaining history which, without exception, has not had more than one facility in the same bargaining unit.

As stated before, Pilot Freight Carriers requires a consideration of the wishes of the employees involved. No such consideration was given here; indeed, the Board does not even mention the subject.

In the face of this, we think the Board should have viewed this case as it did Pilot Freight Carriers. The transferred employees at Manassas were given the choice whether to make the change or not; they elected to work at the Manassas facility under different supervision and a different wage and benefit system; and we think the Board’s finding of an accretion to their former bargaining unit would wrongfully interfere with their right, along with the newly-hired servicemen at Manassas, to express their preference as to whether they want the union or not. If they desire a union, they may have one. As the Supreme Court has said, “[t]he Act is wholly neutral when it comes to that basic choice.” NLRB v. Savair Manufacturing Co., 414 U.S. 270, 278, 94 S.Ct. 495, 499, 38 L.Ed.2d 495 (1973).

Order vacated and enforcement denied.

      . A satellite service operation typically has from three to ten service technicians plus a supervisor and clerical worker, and has storage and warehouse facilities. A branch service operation has more than ten technicians, full administrative facilities and personnel, supervisory personnel, warehouse and storage facilities, and is operated under the control of a branch service manager. Nowhere in the Westinghouse service system, as hereinafter pointed out, is a satellite under a branch facility. A satellite is rather under the administrative control of an area facility and an area service manager. The area facility has an area manager who has under his administrative control satellite facilities, independent contractors who perform service, and • servicing dealers who perform service. He has no repair personnel under his immediate supervision but is responsible for the service in a geographic area.


author: VOGEL, Senior Circuit Judge. LAY, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Kenneth Wayne JOHNSON, Appellant. UNITED STATES of America, Appellee, v. Derrick DeWayne GOODMAN, Appellant.
    Nos. 74-1488 and 74-1489.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 15, 1974.
    Decided Dec. 6, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1579.
    Philip M. Wilson, McArthur & Lofton, Little Rock, Ark., for appellant.
    Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., for appellee.
    Before VOGEL, Senior Circuit Judge, LAY and STEPHENSON. Circuit Judges.
   VOGEL, Senior Circuit Judge.

This is a consolidated appeal by Kenneth Wayne Johnson and Derrick DeWayne Goodman from their conviction on charges of possessing unregistered firearms in violation of 26 U.S.C. § 5861(d). Appellants were tried together before the District Court under the provisions of the Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq.

The undisputed evidence discloses that while on routine patrol during the evening of December 30, 1973, Officers Philip Jones and C. H. Kerr of the Little Rock, Arkansas, Police Department stopped a vehicle for running a stop sign. Three males, including the two appellants, alighted from the vehicle and approached the police car. A fourth passenger, a female, remained in the front seat of the vehicle.

Following identification of the driver (appellant Johnson) and the other passengers, a warrant check was run. The warrant check disclosed that an arrest warrant for assault and battery was outstanding against appellant Johnson. He was placed under arrest and searched by Officer Jones. A number of .410-gauge shotgun shells were found in one of his coat pockets.

Thereafter, Officer Kerr approached appellants’ vehicle in order to “inventory” it. Before entering the vehicle to conduct an inventory search, Officer Kerr testified that he shined his flashlight into the interior of the vehicle and saw what appeared to be the butt end of a sawed-off shotgun wedged between the back and seat cushions of the rear seat. Officer Kerr entered the vehicle and retrieved from the rear seat a . 12-gauge sawed-off shotgun. At this time Officer Kerr ordered the female passenger from the vehicle. Further search of the vehicle disclosed a .410-gauge sawed-off shotgun in the front seat area. Later investigation determined that neither shotgun was registered to appellants in the National Firearms Registration and Transfer Records.

The single issue on appeal is whether the District Court erred in denying appellants’ motions to suppress the two sawed-off shotguns. Appellants contend that the weapons were obtained following a warrantless search of the vehicle, and subsequently were introduced into evidence, in violation of the United States Constitution, Amendment IV. See Rule 41 of the Federal Rules of Criminal Procedure.

We hold that the District Court properly denied appellants’ motions to suppress. Our determination is based upon the application of the “plain view” doctrine to the particular facts of this case.

Generally, the Fourth Amendment requires that a search be conducted under the authority of a valid search warrant or under circumstances which demonstrate the reasonableness of a warrantless search. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Under the “plain view” doctrine, a plain view observation made by a police officer from a position where the officer is entitled to be is not a “search” within the meaning of the Fourth Amendment. Consequently, the restrictions of the Fourth Amendment are not applicable. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971); Carpenter v. Sigler, 419 F.2d 169, 172 (8th Cir. 1969).

Despite the intent of Officer Kerr to “inventory” the vehicle, his conduct in approaching appellants’ vehicle was police conduct reasonably associated with a traffic stop. Therefore, when Officer Kerr was in a position to view the inside of the vehicle, he was situated where he had a right to be. Cf. United States v. Story, 463 F.2d 326 (8th Cir. 1972), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); United States v. Briddle, 436 F.2d 4 (8th Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971); United States v. Holgerson, 424 F.2d 1130 (10th Cir. 1970).

Officer Kerr used his flashlight to view the interior of appellants’ vehicle. The fact that the contents of the vehicle may not have been visible without the use of artificial illumination does not preclude such observation from application of the “plain view” doctrine. United States v. Wickizer, 465 F.2d 1154, 1157 (8th Cir. 1972) (concurring opinion of Judge Bright); Marshall v. United States, 422 F.2d 185 (5th Cir. 1970).

The view by Officer Kerr of what appeared to be a sawed-off shotgun entitled him to enter the vehicle to seize the weapon. United States v. Story, supra; United States v. Berry, 423 F.2d 142 (10th Cir. 1970); Nunez v. United States, 370 F.2d 538 (5th Cir. 1967); Goodwin v. United States, 121 U.S.App.D.C. 9, 347 F.2d 793 (1965). Finally, the discovery that the object seen was in fact a sawed-off shotgun gave reason to search the vehicle for further weapons.

In summary, we hold valid the seizure of one sawed-off shotgun following a plain view observation. Furthermore, the seizure of the first shotgun justified the warrantless search of the vehicle for other weapons or contraband and the seizure of the second sawed-off shotgun. Consequently, both weapons were properly admitted into evidence.

Affirmed.

LAY, Circuit Judge

(concurring).

I concur in the result of the opinion. However, I express substantial doubt that the plain view doctrine should be applicable when the officer is involved in making a search. I would sustain the admissibility of the evidence on the ground that Johnson was under custodial arrest and, as such, the officers had probable cause to reasonably search his person, as well as his nearby automobile, for any weapons that he might have. See Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969); cf. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Moodyes v. United States, 400 F.2d 360 (8th Cir. 1968), cert. denied, 397 U.S. 998, 90 S.Ct. 1141, 25 L.Ed.2d 407 (1970). At the time of the search Johnson was a known fugitive. The extent of the initial search was limited to weapons, which were found. Under the circumstances, the search was reasonable and should be upheld.

      . The Honorable J. Smith Henley, United States District Judge, Eastern District of Arkansas, Western Division.

      . The Fourth Amendment provides:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.