author: WILLIAM J. CAMPBELL, Senior District Judge. STEVENS, Circuit Judge

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRASWELL MOTOR FREIGHT LINES, INC., Respondent.
    No. 72-1444.
    United States Court of Appeals, Seventh Circuit.
    Argued March 1, 1973.
    Decided Oct. 4, 1973.
    Rehearing Denied Nov. 15, 1973.

      Peter G. Nash, Gen. Counsel, William L. Corbett, Atty., NLRB, Washington, D. C., for petitioner.
    Hugh M. Smith, Ronald R. Slaughter, Dallas, Tex., for respondent.
    Before FAIRCHILD and STEVENS, Circuit Judges, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   WILLIAM J. CAMPBELL, Senior District Judge.

The Board has petitioned for enforcement of its order which found'that the respondent violated Sections 8(a)(3) and (1) of the National Labor Relations Act by discriminatorily laying off nine employees from its Atlanta, Georgia plant and by discriminatorily discharging an employee, Ike Singletary, from its plant in Jackson, Mississippi. The issues before this court are whether there is substantial evidence in the record as a whole to support the Board’s findings, and whether the respondent’s conduct at its Atlanta and Jackson plants was properly before the Board.

The Company is engaged in the interstate motor truck transportation over a wide geographical area. It has trucking facilities in Chicago, Illinois, in Atlanta, Georgia, as well as in Jackson, Mississippi. It also has large operations in the state of Texas. Its President and General Manager, J. V. Braswell, owns 99% of the Company’s outstanding shares of stock.

Since the 1950s, the Company has engaged in an ongoing battle with various locals of the International Brotherhood of Teamsters over the organization and operation of the Company’s facilities. It is fair to say that the Com pany’s posture throughout this history has been one of resistance to organizational efforts by the Union and its various locals. The record in this case is no different. It contains evidence of direct statements of the company president and his management assistants which support the findings of the Board that the layoffs and discharge were discrimina-torily motivated by reason of the employees’ union activities. Typical of these statements is a remark of the company president to the director of its Chicago terminal concerning the problem in Chicago. J. V. Braswell stated “I will tell you one thing, if those sons-of-bitches up there go union I will shut that terminal down because if they are allowed to go union, every terminal in the system will get the idea that they can do the same thing.” Although the incidents at the Chicago terminal are not being challenged by the respondent in this court, similar incidents occurred at the Atlanta and Jackson plants. For example, when Braswell learned that the Atlanta employees had signed union authorization cards he immediately instructed Cahill, the Chicago terminal director, to go to Atlanta, hire an independent cartage company to conduct the respondent’s operations in Atlanta, and then to fire “every son-of-a-bitch in Atlanta.” At a later point in time, when Cahill informed Braswell that the situation in Atlanta was “bad”, Braswell responded “well, at least I got rid of a bunch of union bastards in Chicago.” With respect to the Jackson facility, when Braswell learned that employee Ike Singletary had previously walked a union picket line at the Jackson plant, he instructed that Single-tary was to be fired.

The position of the respondent is that the layoffs in Atlanta, Georgia, were justified by the economic situation prevailing at the time. Concerning this purported justification, the testimony of the witnesses is conflicting. Where this is so, the determination of the witness’ credibility lies peculiarly within the province of the trial examiner as the trier of fact. Saginaw Furniture Shops Inc. v. NLRB, 343 F.2d 515, 516-517 (7th Cir. 1965); NLRB v. National Food Stores Inc., 332 F.2d 249, 251 (7th Cir. 1964). Moreover, even if there be a valid business purpose for the layoff, a violation of the Act still occurs if the employer’s motive is discriminatory. NLRB v. Bedford-Nugent Corp., 379 F. 2d 528, 529 (7th Cir. 1967); NLRB v. American Casting Service Inc., 365 F.2d 168, 174 (7th Cir. 1966). Considering this along with the evidence in the record as a whole, we conclude that there is substantial support in the record for the findings of the Board.

The more difficult question here concerns whether the Company’s conduct at its Atlanta, Georgia and Jackson, Mississippi facilities was properly before the Board. The chronology of this case shows that on January 27, 1970, the Chicago teamsters local filed an unfair labor practice charge against the respondent alleging violations of Sections 8(a)(1), (3) and (5) of the Act at the Chicago terminal. The Regional Director issued a complaint and notice of hearing on September 11, 1970. Thereafter, on October 28, 1970, an amendment to the original complaint, which added additional Chicago employees, was filed. Finally, on November 12, 1970, a further amendment was filed, alleging that the company violated Sections 8(a)(3) and (1) of the Act by laying off and discharging certain employees at its Atlanta and Jackson terminals. Inasmuch as the Atlanta and Jackson incidents were not mentioned in the original charge filed with the Board and occurred more than six months prior to the filing of the amended complaint, the respondent maintains that Section 10(b) of the Act forecloses any consideration by the Board of the Atlanta and Jackson incidents.

It has long been recognized that this section of the Act prevents the Board from filing a complaint on its own initiative. National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1940); NLRB v. Kohler Company, 220 F.2d 3, 7 (7th Cir. 1955). Recognizing that a charge is not a complaint but is rather an administrative device for triggering the Board’s investigatory process, it has also been held that Section 10(b) is to be broadly construed so as to permit the Board to include in its complaint any matter of the same general nature as that asserted in the charge. NLRB v. Kohler Company, 220 F.2d 3, 6 (7th Cir. 1955) and the cases therein cited.

With respect to the limitations imposed upon the authority of the Board by reason of Section 10(b), the Supreme Court has stated:

“Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularization of a charge.” Labor Board v. Fant Milling Co., 360 U.S. 301, 308, 79 S.Ct. 1179, 1183, 3 L.Ed. 2d 1243 (1959).

Relying upon its holding in National Licorice Co., supra,, the Supreme Court went on to rule in Fant Milling that the Board had the authority to deal with unfair labor practices which are related to or grow out of those alleged in the original charge. This Circuit’s formulation of the rule expressed in National Licorice Co. is that “so long as the Board entered the controversy pursuant to a formal charge, it may allege whatever it finds to be a part of that controversy.” NLRB v. Kohler Company, 220 F.2d 3, 7 (7th Cir. 1955).

The record here reveals a sufficient nexus between the Chicago conduct mentioned in the original charge and the Atlanta and Jackson conduct alleged in the complaint so that the Board was not precluded by Section 10(b) from considering the Atlanta and Jackson allegations. The practices complained of all occurred within the same general time period, a one to two month span of time. Although different locals were involved at each location, they were all members of the International Brotherhood of Teamsters. When the testimony concerning the specific unfair labor practices is viewed in the context of the respondent’s past relationship with the teamsters, it is clear that the company’s conduct at the three locations was part of an overall plan to resist organization by the Teamsters. Too, the specific allegations in the complaint with respect to the Atlanta and Jackson terminals were of the same class and character as those set out in the original charge. Thus, we conclude that the respondent’s conduct at its Atlanta and Jackson terminals was properly before the Board.

Accordingly, the order of the Board will be enforced.

Order enforced.

STEVENS, Circuit Judge

(dissenting).

The complaint, as finally amended on November 12, 1970, alleged that respondent had refused to bargain with Local 710 at its Chicago terminal, and had unlawfully discharged 11 employees in Chicago, Illinois, 13 employees in Atlanta, Georgia, and 9 employees in Jackson, Mississippi. In an 112 page decision, the Trial Examiner reviewed in detail the relevant facts about each of those 33 employees and concluded that with respect to 20 of them the evidence was sufficient and with respect to 13 it was not. He ordered the company to bargain with Local 710 in Chicago and to reinstate 10 employees at the Chicago terminal, 9 employees at the Atlanta terminal, and 1 at Jackson.

The charge was filed on January 27, 1970, by Local 710, which represented employees in the Chicago bargaining unit. That local had no jurisdiction over Atlanta or Jackson and, as far as I can determine, no interest whatsoever in the fate of the Atlanta or Jackson employees. They were not represented by any union for purposes of bargaining with the company or by any charging party for purposes of this litigation.

The discharges in Atlanta and Jackson occurred prior to the filing of the Chicago charge. The holding in Labor Board v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243, is therefore inapplicable. Indeed, even the broad language of that opinion is inapplicable since it cannot be fairly said that the Jackson and Atlanta incidents grew out of the conduct alleged in the charge while the proceeding was pending before the Board. Cf. International Union, U. M. W. v. N. L. R. B., 112 U.S. App.D.C. 60, 299 F.2d 441, 443-444 (1962).

Exactly when one alleged unfair labor practice should be considered sufficiently “related” to another to permit one charge to support two Board complaints — or perhaps I should say, two counts in one complaint — is unclear. It does not seem to me that the fact that the same company, or even the same executive of that company, was involved in both transactions should be sufficient to supply the nexus. And, of course, neither uncouth language nor a consistent antiunion purpose should be controlling; for at least the latter can always be alleged and I would suppose the Board’s jurisdiction should be tested by the General Counsel’s allegations rather than his proof.

In my judgment it seems more reasonable to focus on the employees’ interest in the proceedings. If all of the allegations involved the same bargaining unit, I would assume that a wide variety of apparently separate transactions could appropriately be included in a single complaint based on a charge filed by a member of that unit. However, if the statutory requirement of a charge is to be meaningful, it does not seem to me that a charge filed by a Chicago local should be sufficient to authorize a nationwide investigation of all layoffs within the recent past. I do not reach the question whether it would be wise policy to authorize such broad investigatory powers for the Board. I simply am not persuaded that Congress has yet executed that “carte blanche.” I therefore respectfully dissent.

      . The Board also determined that the company violated Sections 8(a)(1), (3) and (5) by engaging in similar conduct at its Chicago, Illinois terminal, and ordered the company to cease and desist from such conduct and to reinstate employees discriminatorily laid off. The respondent has stipulated that it will not contest the portion of the Board’s order pertaining to the Chicago violations.

      . Sec, NLRB v. Braswell Motor Freight Lines, 209 F.2d 622 (5th Cir. 1954), 213 F.2d 208 (5th Cir. 1954), 220 F.2d 362 (5th Cir. 1955) ; Braswell Motor Freight Lines, Inc. v. NLRB, 125 U.S.App.D.C. 204, 370 F.2d 226 (1966) ; Teamsters Local Unions v. Braswell Motor Freight Lines, 392 F.2d 1 (5th Cir. 1968), 395 F.2d 655 (5th Cir. 1968), 428 F.2d 1371 (5th Cir. 1970), cert, denied, 401 U.S. 937, 91 S.Ct. 926, 28 L.Ed.2d 217 (1971) ; Local Freight Drivers v. Braswell Motor Freight Lines, 422 F.2d 109 (9th Cir. 1970), cert. denied, 400 U.S. 827, 91 S.Ct. 53, 27 L.Ed. 2d 56 (1970) ; NLBB v. Braswell Motor Freight Lines, Inc., 386 F.2d 190 (5th Cir. 1967).

      . Section 10(b) of the Act provides in pertinent part:
      “Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect and containing a notice of hearing before the Board or a member thereof, before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. . . . ”

      . In Fant Milling, the Court quoted the following statement from its earlier opinion in National Licorice Co. v. Labor Board, 309 U. S. 350, 357, 60 S.Ct. 569, 574, 84 L.Ed. 799:
      “It is unnecessary for us to consider now how far the statutory requirement of a charge as a condition precedent to a complaint excludes from the subsequent proceedings matters existing when the charge was filed, but not included in it. Whatever restrictions the requirements of a charge may be thought to place upon subsequent proceedings by the Board, we can find no warrant in the language or purposes of the Act for saying that it precludes the Board from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board.” See 360 U.S. at 306-307, 79 S.Ct. 1179, 1182.
      The dispute in Fant Milling, like that in National Licorice Go., related to events subsequent to the filing of the charge.

      . In the final paragraph of its opinion in Fant Milling, the Court stated:
      “What has been said is not to imply that the Board is, in the words of the Court of Appeals, to be left ‘carte blanche to expand the charge as they might please, or to ignore it altogether.’ 258 F.2d [851, 5 Cir.], at 856. Here we hold only that the Board is not precluded from ‘dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board.’ National Licorice Co. v. Labor Board, 309 U.S. 350, at 369 [60 S.Ct. 569, 84 L.Ed. 799].” 360 U.S. at 309, 79 S.Ct. at 1184.

      . After quoting from National Licorice, in Fant Milling the Court stated:
      “In the present case, as in National Licorice, the unilateral wage increase was ‘of the same class of violations as those set up in the charge . . . . ’ The wage increase was ‘related to’ the conduct alleged in the charge and developed as one aspect of that conduct ‘while the proceeding [was] pending before the Board.’ ” 360 U.S. at 307, 79 S.Ct. at 1183.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    GUAM SCOTTISH RITE BODIES, a Fraternal Organization, Plaintiff-Appellee, v. Joseph FLORES, Defendant-Appellant (two cases).
    Nos. 72-1867, 72-1958.
    United States Court of Appeals, Ninth Circuit.
    Oct. 26, 1973.
    Howard G. Trapp (argued), of Trapp, Gayle & Company, Agana, Guam, for Joseph Flores.
    David M. Shapiro (argued), Agana, Guam, for Guam Scottish Rite Bodies.
    Before KOELSCH and TRASK, Circuit Judges, and KING, District Judge.

       The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.

   PER CURIAM:

The parties to this appeal are adjoining landowners on the Island of Guam, and their boundary dispute is the subject of the lawsuit.

Guam Scottish Rite Bodies, plaintiff below, has been the fee simple owner of a lot on the island since August 8, 1958. Defendant Joseph Flores has been the owner of a lot adjoining the southern boundary of plaintiff’s lot since April 12, 1965. The complaint, filed on July 14, 1970, alleged that in the year 1966 or 1967, Flores bulldozed an area lying north of his property line, and then constructed a portion of an apartment building, a concrete walk and a metal clothesline on land belonging to the Scottish Rite, despite notice that he was encroaching. Scottish Rite asked for an injunction compelling Flores to remove the encroachment, and for money damages.

During the course of their dispute, and prior to construction of the encroachments, each of the parties caused his own survey to be conducted. Each thereafter relied on his own survey, although the two were not in harmony. The trial court found the survey conducted by Scottish Rite to be the correct one and accordingly found that Flores had encroached through the construction of a sidewalk, a clothesline and a concrete roof eave. The judge further found the encroachments to be permanent in nature and awarded damages to Scottish Rite. Applying the doctrine of relative hardships, the trial court awarded a permanent easement for the roof eave and the sidewalk to Flores and ordered removal of the clothesline.

Both parties appeal from the judgment of the District Court. Scottish Rite contends that the encroachment was wilful, and that therefore it was error for the trial court to balance the equities and to deny a mandatory injunction ordering Flores to remove all the encroachments. Flores takes the position that Scottish Rite’s claim against him is barred by the statute of limitations.

Scottish Rite cites Christensen v. Tucker, 114 Cal.App.2d 554, 250 P.2d 660 (1952) as authority for the proposition that “for a defendant to be entitled to the benefits of the relative hardship doctrine, the trespass must not have been willful . . . . ” The Christensen case, however, suggests that where a defendant builds his encroachments on the plaintiff’s land without making a survey of his own and simply relies on statements of his grantor, that may be merely negligent. In this case, the defendant conducted his own survey and relied upon it. The trial court declined to find that the defendant’s encroachment reached the level of wilfulness. On the state of the record, we cannot find that this was error.

Flores maintains that Scottish Rite’s claim against him was barred by the statute of limitations, specifically § 338(2) of the Guam Code of Civil Procedure. The trial court held that section to be inapplicable, since the action was not based upon trespass or injury to real property. Instead, the court characterized this as a suit for recovery of possession of real property wrongfully withheld, and governed by the five-year limitations period of Code of Civil Procedure §§ 318 and 319.

The Guam statutes here under consideration are modeled after their counterparts in the California codes. Flores’ cases suggest that under California law, a permanent encroachment is characterized as a trespass, and that an action based upon such a trespass is barred three years after the encroachment has commenced. However, there is also California authority indicating that the five-year statute of limitations is applicable in cases involving “the features of an action in ejectment”. Cella v. Cosgro, 115 Cal.App.2d 816, 253 P.2d 57 (1953). The present case might be seen as one involving the features of an action in ejectment, and it is thus at least arguable that the five-year limitations period is appropriate.

The trial judge ruled that where there is a “substantial question” over which of two conflicting statutes of limitation, to apply, the court should as a matter of policy apply the longer. This rule previously has been employed by at least two of the Circuits, in Hughes v. Reed, 46 F.2d 435 (10th Cir. 1931), and Payne.v. Ostrus, 50 F.2d 1039 (8th Cir. 1931). The trial court’s conclusion on this point is reasonable under the circumstances and will not be disturbed.

A more troublesome issue confronting us is the matter of the Land Title Registration Act of Guam, Civil Code, chapter 1157. Section 1157.38 of the Act provides :

“No unregistered estate, interest, power, right, claim, contract, or trust shall prevail against the title of a registered owner taking bona fide for a valuable consideration or of any person bona fide claiming through or under him.”

In its complaint, Scottish Rite claimed registration of its land under the Act. The trial judge found that Scottish Rite did hold under a certificate of title. He made no further mention of the impact, if any, of the certificate on the merits of either party’s claim.

Again on this appeal, Scottish Rite contends that registration of the land under the Act precludes the award to Flores of any superior interest. Flores did not bother to respond to this issue in his perfunctory reply brief. Given such a state of affairs, we cannot say that the allegation of Scottish Rite is wholly without merit, especially in view of this Court’s determination in Wells v. Liza-ma, 396 F.2d 877 (1968), that the essential purpose of the Guam Land Title Registration Act is to allow confident reliance upon record title under the Act.

Since we are not able to ascertain precisely how the trial court disposed of this issue, the judgment must be vacated and the cause remanded for further proceedings related to the significance of Scottish Rite’s certificate of title.

So ordered.

      . § 335. Periods of limitation prescribed. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows :
      “§ 338. Within three years—
      “2. An action for trespass or injury to real property

      . “§ 318. Seizing within 5 years, when necessary in action for real property. No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grant- or, was seized or possessed of the property in question, within 5 years before the commencement of the action.”
      “§ 319. Such seizing, when necessary in action or defense arising out of title to or rents of real property. No cause of action, or defense to an action, arising out of the title to real property' or to rents or profits out of the same, can be effectual, unless it appear that the person prosecuting the action, or making the defense, or, under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person was seized or possessed of the premises in question within 5 years before the commencement of the act in respect to which such action is prosecuted or defense made. ...”


author: SWYGERT, Chief Judge. MOORE, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony MACINO and Robert Walensky, Defendants-Appellants.
    Nos. 72-1786, 72-1787.
    United States Court of Appeals, Seventh Circuit.
    Argued April 24, 1973.
    Decided Sept. 6, 1973.
    Rehearing En Banc Denied Dec. 12, 1973.

      Anna R. Lavin, Edward J. Calihan, Jr., Chicago, Ill., for defendants-appel-. lants.
    James R. Thompson, U. S. Atty., William T. Huyck, Terry M. Gordon, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, MOORE, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

       Tlie Honorable Leonard P. Moore, Senior Judge of the United States Court of Appeals for the Second Circuit, is sitting by designation.

   SWYGERT, Chief Judge.

Defendants-appellants, Anthony Maci-no and Robert Walensky, appeal their convictions for violations of the counterfeiting laws, 18 U.S.C. § 472, on the ground that the twenty-eight month delay between the date of their arrest and the return of the indictments violated their sixth amendment right to a speedy trial. We hold that there was a denial of a speedy trial and we reverse.

On April 8, 1968 appellants and two other persons were arrested when they attempted to pass counterfeit federal reserve notes to an undercover Secret Service agent. A preliminary hearing at which bail was set and the appellants were bound over to the grand jury was held on April 25. Both Macino and Wal-ensky posted bond and were released. No further action was taken by the Government until August 1970 when indictments were obtained against all four participants in the April 1968 offense.

Prior to trial, Walensky filed a motion to dismiss the indictment in which he alleged that the twenty-eight month time lapse between arrest and indictment violated his right to a speedy trial. Macino filed a similar motion on October 19. Both motions were denied, although the same motion by one of the other defendants was granted. That defendant’s motion was granted because he had, while incarcerated on a separate charge, demanded a speedy trial. Neither Macino nor Walensky ever demanded an early trial date.

Applying the balancing test of the Supreme Court’s most recent interpretation of the sixth amendment right to a speedy trial, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we hold that a twenty-eight month delay under the circumstances of this ease requires reversal.

In Barker v. Wingo, the Court expressly rejected the two speedy trial theories which had gained the widest acceptance in both state and federal jurisdictions. Holding the “specified time period” approach to be without constitutional basis and too inflexible, and the “demand-waiver” approach to be inconsistent with the rule that constitutional rights cannot be waived by inaction or silence, the Court adopted a balancing test “in which the conduct of both the prosecution and the defendant are weighed.” 407 U.S. at 530, 92 S.Ct. at 2192. Four factors are to be weighed: length of delay, reason for the delay, defendant’s assertion of his right, and prejudice to the defendant. For purposes of this opinion, we will deal with each separately.

Delay. Several things need be mentioned concerning the extent of the delay. The delay in the instant cases is not insubstantial amounting as it does to nearly two and one-half years. However, as the Barker opinion points out several elements are involved in the concept of delay. It can, on the one hand, be viewed merely as the “triggering mechanism” which precipitates a speedy trial issue. Viewed as such, its significance in the balance is not great. On the other hand, delay is inextricably tied to the question of prejudice. As the length of the delay extends, the more certain prejudice is to result. It is manifest that prejudice, always a difficult thing to ascertain, must, at some point, be presumed to result from an inordinate delay in bringing a defendant to trial. Exactly where that point lies on the spectrum of pretrial delay is uncertain, but it is clear that the longer the delay, the heavier the weight to be given it in the balance. Such was explicitly recognized by the District of Columbia Circuit in United States v. Holt, 145 U. S.App.D.C. 185, 448 F.2d 1108-1109 (1971):

Time is the most important factor; the longer the delay between arrest and trial the heavier the burden on the Government will be in arguing that the right to a speedy trial has not been abridged. The defense claim has prima facie merit if the lapse between arrest and trial is longer than one year.

Explanation for delay. Little need be said concerning the weight to be given the explanation for the delay in this case. Indeed, nothing can be said because the Government offered no explanation. Although the appellants’ motions to dismiss invited the Government to explain or justify the delay, the Government apparently chose not to do so.

With respect to the weight to be given this factor, Barker is instructive. Setting forth the extremes and the middle ground, the Court notes:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or over-crowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Having offered no explanation, the Government has placed nothing upon the scale to offset what on its face appears to be an extreme delay. Certainly we can presume neither a deliberate attempt to hamper the defense nor a valid reason for the delay. Even if we were to assume that the delay was caused by negligence or an understaffed prosecutor’s office, in the instant case, this factor must be weighed in favor of the appellants.

Assertion of right to speedy trial. Neither Macino nor Walensky made known their desire for a speedy trial until after the indictments were returned, more than twenty-eight months after appellants’ initial arrest. Failure to demand a speedy trial does not constitute a waiver of that right. Failure to assert the right, however, is a factor to be weighed in cases alleging the denial of a speedy trial. In Barker, the Supreme Court emphasized that the assertion of the right is “entitled to strong evidentiary weight in determining whether the right has been deprived” and, conversely, that the failure to assert it will “make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U.S. at 531-532, 92 S.Ct. at 2192-2193. However, the weight to be given the absence of a demand in cases where the delay is between arrest and indictment is substantially less than in cases of postindictment delay.

We cannot ignore the fact that a person who has been arrested but not charged will always nourish the hope that the Government will decide not to prosecute. We are not, therefore, inclined to force a prospective criminal defendant to seek his own prosecution. As the Court characterized its holding in Barker, “the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial.” 407 U.S. at 529, 92 S.Ct. at 2191. That is especially true where the delay is preindictment.

Prejudice. We now turn to the question of prejudice — the final and most elusive of the factors enunciated in Barker. As to prejudice, the Court offers us the following guidelines:

Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

Because appellants were released on bail following their preliminary hearing, they suffered no oppressive pretrial incarceration. The remaining two forms of prejudice are, however, both present in this case.

As to the anxiety and stigma which inevitably attach to arrest and indictment, we must recognize that they exist despite the fact that a trial transcript or court record will seldom reveal them. Nor can this form of prejudice be treated lightly. As the Supreme Court pointedly observed in United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971), they are the “major evils protected against by the speedy trial guarantee”;

Inordinate delay between arrest, indictment and trial may inpair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family and his friends. These considerations were substantial under-pinnings for the decision in Klopfer v. North Carolina [386 U.S. 213, 87 S.Ct. 988, 18 L. Ed.2d 1] supra; see also Smith v. Hooey, 393 U.S. 374, 377-378, 89 S.Ct. 575, 576-577, 21 L.Ed.2d 607 (1969).

See also Strunk v. United States, 412 U. S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

With respect to actual prejudice to the appellants’ ability to defend themselves, the record discloses that one eyewitness to the crime, a former codefendant, died before the case was eventually brought to trial. While it is true, as the Government argues, that the record does not indicate whether the testimony of this witness would have been helpful, or even available, to the appellants, we cannot gainsay that it would not have been. Certainly the death of a witness with firsthand knowledge of the events at issue creates the strong possibility of prejudice to a defendant. Further, there is positive evidence in this record that the memories of witnesses faded in the long hiatus between arrest and trial. Even the Government felt constrained to explain one of its own witnesses’ failing memory. Thus, we find the comment in the prosecutor’s closing argument:

He didn’t remember all those details. He was wrong on some of them. He was wrong on the dates. ... He was relying on his memory of what happened four years ago. He had to recall it without any reports.

In light of the above we find that the four factors, when weighed together, compel the conclusion, that appellants Macino and Walensky were denied their right to a speedy trial. The delay was extraordinary, and the prejudice manifest. On balance the Government offered no explanation for the delay. Further, as noted, in the preindictment situation the failure of the defendant to demand a speedy trial must be given minimum weight. Under such circumstances, we find that it was error for the trial court to have denied the appellants’ motion to dismiss the indictments for want of a speedy trial.

The judgments of conviction are reversed with direction to dismiss the indictments.

MOORE, Circuit Judge

(sitting by designation) (dissenting):

I respectfully dissent. While I agree that the “balancing test” set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) must be applied in this ease, I believe the majority has seriously misapplied that test to the facts presented by this case.

The first of the four factors to be weighed under the Barker v. Wingo approach to determining whether a criminal defendant has been denied a speedy trial is the length of the delay. I fully agree with the majority that a twenty-eight month delay is sufficient to “trigger” a Sixth Amendment speedy trial claim. See e. g., United States v. Holt, 145 U.S.App.D.C. 185, 448 F.2d 1108 cert, denied, 404 U.S. 942, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971).

The second factor to be weighed is the reason for the delay given by government. The majority here conclude that because the government has offered no explanation for the twenty-eight month hiatus between the arrest of the appellants and their indictment, “[t]his factor must be weighed in favor of appellants.” I am not persuaded that such a conclusion is warranted without a specific finding in the district court as to the reason for the delay. While the majority are no doubt correct that appellants’ motions to dismiss the indictment for lack of a speedy trial “invited the Government to explain or justify the delay, [and] the Government apparently did not do so,” it should be kept in mind that all such motions were heard and the trial below was completed before the Supreme Court released its opinion in Barker. The government may have believed at the time the question of delay was raised in this case that it did not have to divulge its reasons, if any. While I agree that Barker should apply here, I favor giving the government a post-Barker opportunity to establish the reason for this delay, and would thus remand this case to the district court. See United States v. Booz, 451 F.2d 719 (3d Cir. 1971); United States v. Scafo, 470 F.2d 748 (2d Cir. 1972); United States v. Valot, 473 F.2d 667 (2d Cir. 1973).

The third factor to be considered under the Barker v. Wingo approach is whether a defendant seeking to establish denial of a speedy trial has made a demand, for a speedy trial. In Barker the Court advised:

We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
407 U.S. at 532, 92 S.Ct. at 2193.

Neither of the appellants in this ease ever demanded a speedy trial. Both appellants did move to have their indictments dismissed for lack of a speedy trial, but after that motion was denied in November, 1970, neither party opposed the further delays that postponed trial until June, 1972.

The majority state that we should not expect defendants to demand a speedy trial before they have been indicted, since “a person who has been arrested but not charged will always nourish the hope that the Government will decide not to prosecute.” There is no support in Barker or in logic for making the indictment process such a critical watershed in this area of constitutional law.

Appellants’ silence here is easily explained by the well-known (and perfectly legitimate) interest of many criminal defendants in seeking to delay trial as long as possible. The Barker opinion itself refers to this:

More important than the absence of serious prejudice, is the fact that Barker did not want a speedy trial. * * * [T]he record strongly suggests that while he hoped to take advantage of the delay in which he had acquiesced and thereby obtain a dismissal of the charges, he definitely did not want to be tried.
407 U.S. at 534-535, 92 S.Ct. at 2194.

Appellants have demonstrated no interest in seeking an expeditious trial; their only motion was to dismiss the complaint after the delay between arrest and indictment. The majority here permit the appellants to have it both ways. Appellants are exempted from the important requirement imposed by Barker that they should assert their right to a speedy trial and are then permitted to acquiesce in successive further delays which postponed their trial for nineteen additional months.

Turning to the fourth and final factor to be considered in evaluating a denial of a speedy trial claim-prejudice to defendants, the majority here find the delay “extraordinary” and “extreme” and “prejudice manifest.” I, to the contrary, find prejudice minimal or, more likely, nonexistent, and the delay simply unexplained. In its consideration of prejudice in Barker, the Court identified three interests to be protected: (1) preventing “oppressive pretrial incarceration,” (2) minimizing “anxiety and concern of the accused,” and (3) limiting “the possibility that the defense will be impaired.” 407 U.S. at 532, 92 S.Ct. at 2193.

While there is no claim of oppressive incarceration, the majority state that they have found both remaining types of prejudice in this case. There is no disputing that the anxiety and concern of the accused is an important interest protected by the Sixth Amendment guarantee of a speedy trial. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). It seems quite obvious, however, that the prejudice described here is tied in closely with the demand for a speedy trial which Barker also envisions. If their “anxiety and concern” were truly important to them, appellants were free to demand an expeditious trial. In referring to a defendant’s “responsibility to assert his right” to a speedy trial, the Court in Barker noted that “[t]he strength of [a defendant’s] efforts [to assert this right] will be affected * * * most particularly by the personal prejudice * * * that he experiences. The more serious the deprivation, the more likely a defendant is to complain.” 407 U.S. at 531, 92 S.Ct. at 2192.

If, however, delaying their trial as much as possible was a countervailing consideration, and this may be surmised from the absence of any indication of interest on the part of appellants in an early trial, then it appears to me that little weight should be given to their anxiety and concern.

As to the prejudice to defendants because the lack of a speedy trial impaired their defense efforts, the majority find two instances of this prejudice here. Before trial was had in this case, one of the co-defendants died. Although it is not certain that this defendant would have testified and thus possibly helped appellants’ cases, death of a potential witness is an event which prejudices a party seeking to establish denial of a speedy trial under Barker, 407 U.S. at 534, 92 S.Ct. 2182. It is not clear, however, that this co-defendant died during the twenty-eight month period here complained of. Appellants were indicted in August and September of 1970; the death of the co-defendant was not suggested to the Court until March, 1971. Certainly the death of a co-defendant during a time when appellants are not opposing continuances should not weigh heavily (if at all) in the “balancing” of factors prescribed by Barker. And can there be any doubt that if appellants had been making the demand for speedy trial envisioned by Barker from the time of their arrest in August of 1968 that their case would have come to trial long before the death of their co-defendant was brought to the attention of the court?

The majority also note that there is positive evidence in this record that the memories of witnesses faded in the long hiatus between arrest and trial.

This, it is said, prejudiced the appellants’ ability to defend themselves. The evidence referred to by the majority is, of course, a reference by the government to its own witness’s fading memory. This is not prejudice to the appellants. Faded memories of prosecution witnesses are without doubt precisely what appellants had been hoping for since their arrest almost four years earlier.

In balancing the factors relevant to a determination whether there has been a denial of a speedy trial, I am not inclined to weigh in favor of appellants the apparent failure of the government to explain the twenty-eight month delay in this case. Since, the Barker approach was announced after proceedings in the district court had been completed, I favor remanding this case for a hearing to determine the reasons for the delay encountered here.

If an acceptable explanation is proffered, this should then be weighed against the slight prejudice which may have been suffered by these defendants as a result of their apparent acquiescence in the delay of four years which occurred here between arrest and trial.

I would vote to remand.

      . In addition to the speedy trial question, each appellant challenges various ruling by the trial judge. Because of our decision on the speedy trial question, we do not reach or resolve those issues.

      . The indictment against the fourth defendant was dismissed on March 2, 1971 when his death was made known to the court.


author: CASTLE, Senior Circuit Judge.

text:
    REX CHAINBELT, INC., a Wisconsin corporation, on behalf, of itself and all others similarly situated, Plaintiff-Appellant, v. John A. VOLPE, Secretary, Department of Transportation, et al., Defendants-Appellees.
    No. 72-1540.
    United States Court of Appeals, Seventh Circuit.
    Argued April 23, 1973.
    Decided Sept. 19, 1973.
    Rehearing Denied Nov. 2,1973.

      Andrew O. Riteris, Edward W. Mentzer, Milwaukee, Wis., for plaintiff-appellant.
    David J. Cannon, U. S. Atty., Joseph P. Stadtmueller, Asst. U. S. Atty., Milwaukee, Wis., for defendants-appellees.
    Before CASTLE and MOORE , Senior Circuit Judges, and CUMMINGS, Circuit Judge.

       Senior Judge Leonard P. Moore of the United States Court of Appeals for the Second Circuit is sitting by designation.

   CASTLE, Senior Circuit Judge.

Pursuant to the provisions of the National Traffic and Motor Vehicle Safety Act of 1966, the acting administrator of the National Highway Traffic Safety Administration (NHTSA) promulgated regulations requiring conformance to certain safety standards in the manufacture and assembly of motor vehicles. In this action Rex Chainbelt, Inc., suing on behalf of itself and others similarly situated, seeks a declaratory judgment that certain of these regulations are invalid because they either exceed the authority of the administrator, or because they are unreasonable.

Rex is primarily engaged in the manufacture of concrete mixer bodies, which, when attached to truck chassis, are used to transport wet cement from cement plants to job sites. Since Rex neither manufactures nor sells truck chasses, its customers must first visit truck manufacturers such as Ford, Mack, or International Harvester or their dealers, and purchase and accept delivery on a chassis. The customers apparently specify to the truck dealers what kind of mixer they wish to mount on the truck they wish to purchase, and, on the basis of these representations, the dealers recommend a particular model of chassis. The customer then drives the truck chassis to Rex or a Rex dealer for installation of the mixer unit, or he acquires and installs the mixer unit himself.

As part of its comprehensive standards concerning motor vehicles, NHTSA promulgated regulations governing trucks which are assembled in two or more stages, such as cement mixer trucks whose chassis are assembled before mixers are attached by a mixer manufacturer. One of these regulations requires Rex, as installer of the mixer units, to complete the truck in such a manner that it will conform to all applicable federal safety standards. 49 CFR § 568.6(a). Federal safety standards currently cover such things as transmission shift levers, windshield defrosting, washing, and wiping, hood latches, brake fluids, door locks, seats, seat belts, and crash protection. Another regulation requires Rex to certify that the entire vehicle — including every item of equipment selected, installed and sold to the customer by Ford, Mack and other truck manufacturers — conforms to applicable federal standards. 49 CFR § 568.6(b). When NHTSA rejected Rex’s objections to these regulations, Rex filed a declaratory judgment action challenging the requirement that it certify the entire vehicle, on the grounds that NHSTA had either exceeded the power granted to it under the statute or had enacted unreasonable regulations that would impose liability upon Rex under a warranty theory for defects in equipment which it had not installed or affected. The district court ruled against Rex on both grounds. 342 F.Supp. 281 (E.D.Wis. 1972).

I. Statutory and Regulatory Scheme

The National Highway Traffic Safety Act of 1966 was enacted to reduce traffic accidents through the establishment and enforcement of motor vehicle safety standards and the encouragement of safety research. 15 U.S.C. § 1381. Accordingly, the Secretary of Transportation or his designate is empowered to establish federal safety standards after a consideration of various pertinent factors. § 1392(a) and (f). The Act makes it unlawful for any person to manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce any vehicle not in conformity with the safety standards. § 1397(a)(1). If in fact a vehicle is sold which does not conform to such standards, the Secretary may impose penalties upon the offending party (§ 1398), a dealer or distributor holding the vehicle may require the manufacturer or distributor from whom he obtained the vehicle to repurchase it (§ 1400), and the manufacturer may be required to notify the purchaser of the existence of the defect and the means of correcting it (§ 1402). The Act also provides for the dissemination of technical and performance data (§ 1401), and requires a certification of conformity pursuant to the terms of § 1403:

Every manufacturer or distributor of a motor vehicle or motor vehicle equipment shall furnish to the distributor or dealer at the time of delivery of such vehicle or equipment by such manufacturer the certification that each such vehicle or item of motor vehicle equipment conforms to all applicable Federal motor vehicle safety standards. In the case of an item of motor vehicle equipment such certification may be in the form of a label or tag on such item or on the outside of a container in which such item is delivered. In the case of a motor vehicle such certification shall be in the form of a label or tag permanently affixed to such motor vehicle.

The Act provides penalties for those who fail to issue a certificate required by section 1403, or who issue a certificate to the effect that a motor vehicle conforms to all applicable federal motor vehicle safety standards when the issuer has reason to know in the exercise of due care that such certification is false or materially misleading. § 1397(a)(3).

Pursuant to the authority granted in § 1407 to make such rules and regulations as he deems necessary to carry out the above statutory provisions, the Secretary provided for issuance of the regulations which Rex attacks in this action. These regulations denominate Rex as a “final-stage manufacturer” of motor vehicles, since it transforms an “incomplete vehicle” into a “completed vehicle” which requires “no further manufacturing operations to perform its intended function. . . . ” 49 CFR § 568.3. The manufacturer of the chassis-cab, be it Ford, General Motors, or any other concern, is therefore an “incomplete vehicle manufacturer.” Id. Rex, as the final-stage manufacturer, must certify that the entire vehicle — chassis and mixer — conforms to all applicable federal safety standards. 49 CFR § 568.6(b). The incomplete vehicle manufacturers have only to supply Rex with a listing of all the safety standards which apply to the equipment installed in the chassis-cab assembly, and information as to the extent to which such equipment conforms to these standards. Rex must then rely upon this information while installing the mixer, and must then attach a certification plate to the vehicle. This plate lists the dates when manufacturing operations were performed on the vehicle, gives various technical data, and identifies the manufacturer of the “incomplete vehicle.” More importantly, this plate must state that the vehicle was “manufactured by” Rex and must contain the words: “This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above.” Although this language is sufficiently ambiguous so that it does not actually identify which manufacturer is certifying which pieces of equipment on the vehicle, the regulations unequivocably state that Rex is the party that must certify all the equipment on the entire vehicle. 49 CFR § 568.6(b).

II. Validity of the Regulations

In this appeal Rex has vociferously objected to the requirement of 49 CFR § 568.6(b) that it certify the entire cement mixer vehicle once it has attached a new mixer. It argues first that the Secretary did not have the authority to enact regulations requiring it to certify vehicles, since 15 U.S.C. § 1403 (quoted supra) is inapplicable to equipment manufacturers like itself who do not operate through dealers and distributors, but who simply return a customer’s truck to him once the mixer is installed. Secondly, it submits that the attachment of the certification plate will make it a warrantor of the equipment installed by the “incomplete vehicle manufacturer” and liable for damages for breach of warranty should this equipment fail; it further contends that, because differences in applicable statutes of limitations, possible insolvency of the' incomplete manufacturer, and the vagaries of juries may prevent successful recourse against the manufacturer who selected and installed the equipment, the certification regulations are also unreasonable.

In response the government has argued that the requirement of § 1403 that every manufacturer furnish the certification of conformity “to the distributor or dealer at the time of delivery” should be construed "as defining the time when the certification requirement becomes effective rather than the group whom the requirement is intended to protect.” It has also stated that certification is not equivalent to a warranty, and that even if certification were to be interpreted as a warranty, Rex could escape liability by establishing that it exercised due care in observing the conditions specified by the incomplete manufacturer in the document which it is required to provide.

The district .court did not discuss Rex’s first argument concerning the Secretary’s lack of authority to impose the certification requirement under § 1403, but obviously did not accept it. As to the reasonableness of the regulations, the district court apparently assumed that the certification requirement would be unreasonable if Rex were to be held liable for defects in equipment that it certified but did not install. However, the court reasoned that Rex could successfully defend any action based on the certification by showing that it relied on the statement of conformity supplied by the incomplete vehicle manufacturer, and that Rex could also demand additional assurances or protection from the incomplete vehicle manufacturer. 342 F.Supp. at 285.

We perceive the fundamental issues on this appeal to be 1) whether the Secretary has the authority to require manufacturers who do not deal through distributors and dealers to perform some sort of certification, and 2) whether the particular certification regulations involved here are valid under the terms of the statute. We find it unnecessary to reach a third issue of whether the regulations are reasonable.

We find that the district court acted correctly in rejecting Rex’s argument that the Act does not authorize the imposition of any kind of certification requirement upon manufacturers not selling through distributors and dealers. Section 1407 of the Act provides:

The Secretary is authorized to issue, amend, and revoke such rules as he deems necessary to carry out this subchapter.

Such a broad grant of authority enabling the Secretary to impose all requirements which he deems "necessary” to facilitate his enforcement functions is indeed quite extensive. Regulations promulgated pursuant to this delegation of power are to be upheld by a reviewing court if they conform to the purposes and policies of the Act and if they do not contravene any of its terms. Dixon v. United States, 381 U.S. 68, 74, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965), Manhattan General Equipment Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528 (1936), Niagara Mohawk Power Corp. v. Federal Power Com’n, 126 U.S.App.D.C. 376, 379 F.2d 153, 158 (1967). We note that the purposes and policies of the Act are directed at providing safety information to the consumer. Furthermore, § 1403 does not prohibit the imposition of further certification requirements by regulations of the Secretary but merely specifies who must certify their vehicles. We therefore find that the Secretary has power under the Act to require manufacturers not working through distributors and dealers to certify their vehicles or their equipment.

We find, however, that the present regulations which require Rex to certify the vehicles and items of equipment manufactured and installed by the incomplete vehicle manufacturer are invalid because they clearly contravene the language of the Act. Dixon v. United States, supra, Manhattan General Equipment Co. v. Commissioner of Internal Revenue, supra, Niagara Mohawk Power Corp. v. Federal Power Com’n, supra. Section 1403 clearly requires “every manufacturer” to certify the compliance of the vehicles he delivers to dealers and distributors, and § 1391(5) plainly indicates that an “incomplete vehicle manufacturer” is a “manufacturer” within the meaning of § 1403. But the regulations currently in effect relieve incomplete vehicle manufacturers who sell their trucks to Rex customers of the duty to certify their vehicles and to assume any legal liabilities that may be imposed because of this certification. Congress has mandated that the incomplete vehicle manufacturer conform to all applicable federal safety standards before selling his vehicles. § 1397(a) (1). We believe that Congress intend-

ed certification to be a necessary adjunct to the enforcement of this requirement. Finally, the regulations as they presently exist do not protect a customer who purchases a chassis cab from an incomplete vehicle manufacturer and who then installs the mixer by himself. No one is required to certify the chassis in this situation, unless the customer who “assembles” the mixer to the chassis within the meaning of § 1391(5) is to certify the vehicle to himself.

Therefore, to the extent that the regulations require Rex to make the sole certification of compliance of the entire vehicle and contravene the clear language of § 1403, they must be declared invalid.

We realize that an incomplete vehicle manufacturer may be in such a position that many components of the vehicle he manufactures will be altered by a final-stage manufacturer. We also realize that a listing of the components which purportedly conform to federal standards and those which may conform only under certain conditions may defy the space available on a label permanently attached to a vehicle. The Secretary may devise regulations to deal with such problems, and the present regulations are certainly a commendable approach. Of course, such regulations must eon-form to § 1403 and the other provisions of the Act.

This case is therefore reversed and remanded to the district court for entry of judgment in accordance with this opinion.

Reversed and remanded.

      . Rex’s complaint for declaratory relief did not seek a decision on the validity of 49 CFR § 568.6(a), which requires it to “complete the vehicle in such a manner that it conforms to the standards in effect on the date of manufacture of the incomplete vehicle, the date of final completion, or a date between those two dates.” In this action Rex is only attacking the requirement that it certify that the vehicle conforms to all applicable federal standards when it leaves its plant with a mixer unit installed. Consequently, we intimate no opinion on the validity of § 568.6(a) of the regulations.

      . Three kinds of statements regarding the conformity of the equipment are allowed under the regulations. 1) The incomplete vehicle manufacturer can declare that an item of equipment will conform to the particular standard involved if no alterations are made to the item by the final stage manufacturer. 2) He can list specific conditions under which the item can be expected to conform to the standard — e.g. that the vehicle will meet airbrake standards if the final stage manufacturer does not alter brake system components or raise the center of gravity of the vehicle beyond a certain point. 3) He can decline to make any representations as to the conformity of the vehicle with the standard because conformity cannot be determined by the present design or status of the vehicle. 49 CFR § 568.4(i), (ii) and (iii). Unfortunately, the record does not indicate what representations of conformity are normally made to Rex regarding the various items of equipment installed on the chassis cab by Ford, GM, and others. It appears, however, that the regulations require the incomplete vehicle manufacturer to give as much information about conformity and the conditions under which it can be expected, rather than allowing a blanket invocation of the third alternative.

      . Rex has admitted that installation of the mixer body does require modification of the lighting systems on the chassis brought in by a customer, and that it is willing to certify the lighting. The parties are apparently in dispute as to whether the installation of a mixer would affect the braking system of a chassis, however.

      . The court did not specify what assurances could be obtained or whether the incomplete vehicle manufacturers would give them to Rex. In fact, an affidavit filed by Rex stated that Rex has sought to have incomplete vehicle manufacturers take legal responsibility for defects in the equipment they installed but has been unsuccessful.

      . There is no question that a delegation of power to enact all regulations deemed “necessary” is valid. Thorpe v. Housing Auth. of City of Durham, 386 U.S. 670, 673 n. 4, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967) ; American Trucking Ass’ns v. United States, 344 U.S. 298, 311, 73 S.Ct. 307, 97 L.Ed. 337 (1953) ; McKinley v. United States, 249 U.S. 397, 398-399, 39 S.Ct. 324, 63 L.Ed. 668 (1919).

      . See, e.g., §§ 1401(d), 1402(a), and 1403. See also 112 Cong.Rec. 14,229 (1966) (remarks of Senator Magnuson), S.Rep. No. 1301, 1966 U.S.Code, Cong. & Ad. News, pp. 2709, 2716.

      . This holding makes it unnecessary to decide a more difficult issue, i.e., the exact legal implications of certifying a vehicle. Rex argues that such a certification amounts to a warranty which makes the warrantor liable when an item of equipment installed by another is discovered to be nonconforming. We note, however, that liability is usually imposed under the warranty theory when the warrantor induces the sale of his product on the strength of his representations. See, e.g., W. Prosser, Law of Torts § 97 at 651-53, Uniform Commercial Code § 2-313. Since Rex does not produce or manufacture what is being called upon to warrant under the present regulations, there is some dispute as to whether it may be liable under a warranty theory. Rex has also argued that certification under the present regulations could make it liable for negligent misrepresentation if it does not exercise due care in ascertaining the truth of what it represents. Hanberry v. Hearst Corp., 276 Cal.App.2d 680, 81 Cal.Rptr. 519 (1969), Restatement (Second) of Torts § 311. Although the Act and the regulations themselves suggest that reliance upon the statements provided by the incomplete manufacturer pursuant to 49 CFR § 568.4 could establish due care on the part of the final stage manufacturer to protect it from statutory liability, 15 U.S.C. § 1397(b)(2) and 49 CFR § 567.6, we cannot predict what view will be taken by the courts of 50 state jurisdictions. Finally, we observe that the government’s assertion that certification is not to be equated with liability is belied by the regulations, which provide that, if an incomplete manufacturer wishes to assume full liability under the Act, he shall be required to attach the certification plate which does not contain the name of the final-stage manufacturer. 49 CFR § 567.5(b). We assume our holding here should avoid involvement in such a legal quagmire.