author: SIMPSON, Circuit Judge:

text:
    Will Allen SMITH, Petitioner-Appellant, v. STATE OF MISSISSIPPI, Respondent-Appellee.
    No. 72-1325.
    United States Court of Appeals, Fifth Circuit.
    May 7, 1973.

      John W. Prewitt, Vicksburg, Miss., court-appointed, for petitioner-appellant.
    A. F. Summer, Atty. Gen. of Miss., John M. Kinard, Sp. Asst. Atty. Gen., Timmie Hancock, Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

■ Presented by the appeal in this federal habeas corpus action is the single question whether petitioner Will Allen Smith is wrongfully incarcerated in the Mississippi State Penitentiary under the U. S. Constitution’s Fourteenth Amendment due process clause by reason of violation of the Fifth Amendment’s proscription against double jeopardy. The question arises because a mistrial was declared at Smith’s first state court trial by reason of a trial juror’s comment to a bailiff regarding a central issue of the defense prior to the receipt of any evidence.

We hold that no Fifth Amendment double jeopardy rights of Smith were violated, and accordingly affirm.

I

On July 19, 1965, the petitioner, Will Allen Smith, was brought to trial in the Circuit Court of Warren County, Mississippi under an indictment for murder. Jury selection was not finished at the end of the first day of the trial. Since Smith’s primary defense was to be insanity the prospective jurors were questioned individually regarding their knowledge of the case and their views of that defense. Twelve jurors were seated and accepted by the court but not sworn when it adjourned for the night to reconvene the next day for the selection of an alternate juror. Under proper instruction of the trial judge, and in the charge of two bailiffs, the provisional jury was sequestered for the evening.

On the following morning one of the two bailiffs and one of the selected jurors were in the bathroom of the courthouse shaving prior to reporting to court. They had been acquainted for several years. The juror, John L. McKnight, told the bailiff, A. H. Koerper, in the form of a “passing comment”, that from observing the defendant in the courtroom during the selection of the jury the previous day he was of the opinion that “the poor man was crazy” and “didn’t know what he was doing.”

When Koerper saw one of the state’s prosecutors upon the latter’s arrival at the courthouse that morning, he told him of the bathroom incident with McKnight. Koerper made no disclosure as to the juror’s statement to either the judge or defense counsel, despite a specific inquiry to him by defense counsel as to the jury’s well-being.

Court was opened, the alternate juror was selected and the whole panel of twelve jurors and one alternate juror was sworn. Immediately thereafter and before any evidence was introduced, the state prosecutor moved for a mistrial stating his belief that the statement of juror McKnight to bailiff Koerper indicated that McKnight held an opinion which would preclude the state from receiving a fair trial.

The trial judge excused all of the jurors except juror McKnight from the courtroom and heard argument as to the state’s motion. At the hearing both Koerper and McKnight testified. They were in agreement that juror McKnight did not express any prejudgment as to the defendant’s guilt or innocence during the bathroom conversation. McKnight assured the trial judge that he had no prejudgment or fixed opinion as to the matter. The trial judge granted the state’s motion and declared a mistrial for reasons not articulated with precision. The judge appeared to treat juror McKnight’s statement to Koerper as an expression of his opinion of the defendant’s guilt or innocence, and to feel that since the juror had stated an opinion prior to final deliberation and without ’ hearing testimony, the totality of these circumstances would militate against the state receiving a fair and impartial trial. **8

Since these events took place near the end of the July term of court the case was continued to the next, the December term of the court. The petitioner was remanded to the county jail without bond to await trial.

When the December, 1965 term opened petitioner contended by plea in bar that he was being denied due process of law and being placed in jeopardy twice for the same offense in violation of his state and federal constitutional rights. The plea in bar was overruled after argument and Smith was then tried on the original indictment. The jury found him guilty of murder as charged with a recommendation of mercy and he was sentenced to imprisonment for life. On appeal the Mississippi Supreme Court affirmed the trial court as to the double jeopardy issue, but reversed the case on other grounds and remanded for a new trial. Smith v. State, 198 So.2d 220 (Miss.1967)

Smith was again in July, 1967 tried before a jury on the same charge, again found guilty and again sentenced to life imprisonment. On appeal the Mississippi Supreme Court again reversed the conviction on grounds other than the double jeopardy issue and again ordered a new trial. Smith v. State, 220 So.2d 313 (Miss.1969).

In March, 1970, petitioner was brought to trial for the fourth time, was again found guilty by a jury and again sentenced to a term of life imprisonment. On appeal the Mississippi Supreme Court affirmed the trial court and directed that Smith begin serving his sentence. Smith v. State, 245 So.2d 583 (Miss.1971). Petition for rehearing was denied by the Mississippi Supreme Court, as was a petition for leave to file a petition in the trial court for Writ of Error Coram Nobis. State remedies were exhausted at this point, as we explicate infra, Note 6.

Smith then applied to the court below for habeas corpus relief asserting denial by Mississippi courts of his federally guaranteed constitutional rights. The application was denied after hearing. From that denial the petitioner brought the instant appeal.

II

Petitioner contends there was no “manifest necessity” for the trial judge to declare a mistrial in the July 1965 proceedings and further that the ends of public justice would not have been otherwise defeated had he not so ruled. He asserts that absent such considerations the trial court erred in declaring a mistrial; jeopardy had attached; and that the subsequent trials were each in violation of his rights under the Fifth Amendment to the U. S. Constitution.

Mississippi counters that petitioner was not “put to trial” and did not otherwise suffer public humility by virtue of his presence in the courtroom pursuant to the aborted trial; that he was in no way prejudiced by the dismissal of the proceedings before testimony was presented; that in any event the trial judge acted within his discretion in declaring a mistrial when he concluded the state would not receive a fair and impartial trial because the juror Me-Knight had expressed an opinion as to the primary issue of the case prior to the reception of any testimony or evidence; and that jeopardy had not attached because there was no abuse of discretion by the trial judge in his effort to ensure a fair trial “designed to end in just judgment”. Accordingly, says the respondent, the district court's denial of petitioner’s application for writ of habeas corpus was correct and is due to be affirmed.

III

The respondent’s contention that petitioner was not “put to trial” or was in no way prejudiced by the dismissal of the proceedings before testimony was presented has been decided adversely to it by the Supreme Court in Downum v. United States, 1963, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, and recently reaffirmed in Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425. In both cases the Supreme Court held that jeopardy attached when the first jury was selected and sworn. The mere introduction of evidence has no spontaneous effect on a defendant which can be said to automatically charge him with an appreciable degree of insecurity once he has made the preparations for trial and selected those of his peers who will determine his fate.

But the conclusion that jeopardy attached once the jury was selected and sworn simply begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial. It is that examination in the context of this case with which we proceed.

IV

Unquestionably society has strong interests in ensuring that its criminal laws are vigorously enforced so as to prevent the guilty from going free, and further, under a system of justice under law that both sides to a criminal prosecution in fact receive the fair trial to which each is entitled. There are equally important countervailing considerations that an accused be not harassed by a series of aborted criminal proceedings which necessarily entail financial, physical and psychological burdens of enormous dimensions and which give rise to danger that with enough opportunities the prosecution will convict the innocent. It is further necessary to prevent an unscrupulous prosecution from avoiding an unwanted judge or jury or the consequences of damaging testimony by precipitating a mistrial. Recognition of these competing interests prompted the Fifth Amendment’s proscription that no person be subject for the same offense to be twice put in jeopardy of life or limb. This “fundamental ideal in our constitutional heritage” is fully applicable to the states through the Fourteenth Amendment and is to be applied retrospectively. Benton v. Maryland, 1969, 395 U.S. 784, 794-796, 89 S.Ct. 2056, 2062-2063, 23 L.Ed.2d 707, 715-717; North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. See also Ashe v. Swenson, 1970, 397 U.S. 436, 437 n. 1, 90 S.Ct. 1189, 1191, 25 L.Ed.2d 469, 472.

We turn to the relevant case law to examine how the Court has implemented these policies.

Early in its development of constitutional standards, the Supreme Court was asked to formulate rules based on categories of circumstances which would permit or preclude retrial and thus provide a clear line with which to mark the limits of the conflicting policies behind the Fifth Amendment. The Court, in a passage by Mr. Justice Story which has become the touchstone for determining when reprosecution may follow an aborted trial, expressly declined to set forth the requested guidelines. But in doing so the Court articulated some broad principles for the resolution of future problems:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.”

United States v. Perez, 1824, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165.

This formulation has been consistently adhered to by the Supreme Court in subsequent decisions and, as Mr. Justice Rehnquist noted in the Court’s latest discussion of this aspect of the Fifth Amendment,

“ . . . abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial.” Illinois v. Somerville, supra.

Concentration, then, has focused on the propriety of the trial judge’s exercise of his discretion, taking into account all circumstances relevant to the particular trial involved, to determine whether the declaration of a mistrial was required by “manifest necessity” or by the “ends of public justice.”

While meaningful categories of circumstances have been consistently difficult to distinguish and apply, Wade v. Hunter, 1949, 336 U.S. 684, 690-691, 69 S.Ct. 834, 838, 93 L.Ed. 974, 978-979, one line of cases emerges where the declaration of a mistrial was based on a rule or a defective procedure lending itself to prosecutorial manipulation. In Downum v. United States, supra, the prosecution asked that the jury be discharged because its key witness was not present although it had earlier indicated readiness to proceed to trial and had allowed the jury to be selected and sworn. The trial judge granted the request even though the absent witness was essential for only two of the six counts against defendant and denied the defendant’s motion, opposed by the prosecution, to dismiss those two counts and proceed to trial on the other four. The prosecution had allowed the jury to be impaneled knowing that its witness had not been served with a subpoena and could not be found, thus knowingly lacking sufficient evidence to go to the jury on the two counts. The Supreme Court reversed the second conviction because the dismissal of the first jury was not manifestly necessary to proceed with the prosecution once the jury had been impaneled, and because the mistrial was grounded on bad-faith prosecutorial conduct aimed at obtaining another day in court when it might produce sufficient evidence to convict.

Considerably closer to the case before us is a line of eases involving the proper exercise of the trial judge’s discretion to declare a mistrial when it becomes obvious that an impartial verdict cannot be reached, or when, although a verdict might be reached, a conviction would require reversal on appeal due to an obvious procedural error in the trial. Illinois v. Somerville, supra, (reprosecution on substitute indictment held not barred when trial aborted because a defect was found to exist in the indictment that was, as a matter of state law, not curable by amendment); Lovato v. New Mexico, 1916, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (reprosecution held not barred when jury discharged after prosecution realized defendant had not been re-arraigned after his demurrer to indictment was overruled); and Thompson v. United States, 1894, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (reprosecution held not barred when mistrial declared upon the trial judge’s learning after one government witness had testified that one of the jurors was disqualified, because he was a member of the grand jury that indicted the defendant and defendant’s counsel moved for discharge of the jury) are examples of this line of authority.

In United States v. Jorn, 1971, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, the first of the government’s witnesses at a criminal tax fraud trial was warned of his constitutional rights by the trial judge at the suggestion of the government before being questioned. He was called to testify to the submission of false income tax returns prepared by the defendant in the defendant’s trial for willfully assisting in the preparation of those fraudulent returns. Pursuant to his premonishing the witness of his rights, the trial judge formed a belief that none of the government’s witnesses had been adequately forewarned that they might themselves incur criminal liability by their testimony. The judge, sua, sponte, discharged the jury and declared a mistrial to give witnesses the opportunity to consult with their attorneys. The Supreme Court concluded that the trial judge abused his discretion in aborting the trial because he completely failed to consider the possibility of less extreme methods to cure the defect, for example, the granting of a continuance to allow the witnesses to consult with counsel, and at tjie same time, to protect the defendant’s interest of being able, once and for all,

“to conclude his confrontation with so- „ ciety through the verdict of a tribunal he might believe to be favorably disposed to his fate.” 400 U.S. at 486, 91 S.Ct. at 558.

Defendant’s right to have his case decided by that jury should not have been denied him by the trial judge’s total abdication of his responsibility to exercise sound discretion in abruptly ordering the mistrial without consideration of the countervailing interests involved. Such arbitrary action could not support a finding of the “manifest necessity” required under Jorn, supra. 400 U.S. at 486-487, 91 S.Ct. 547.

Gori v. United States, 1961, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901, also involved a trial judge’s sua sponte declaration of a mistrial. There the trial judge withdrew a juror and declared a mistrial during the direct examination of the fourth witness for the government. The Second Circuit Court of Appeals, en banc, branded such action as “overassiduous” and criticized it as premature, United States v. Gori, 2 Cir. 1960, 282 F.2d 43, 46, and the Supreme Court indicated it was not clear what reasons caused the trial judge to take such action. Still, the Supreme Court agreed with the Court of Appeals’ af-firmance of the conviction at a later trial in recognition of the extremely wide range of discretion allowed to the trial judge in determining whether a mistrial is appropriate—

“a responsibility which ‘is particularly acute in the avoidance of prejudice arising from nuances in the heated atmosphere of trial, which cannot be fully depicted in the cold record on appeal . . . ”

367 U.S. at 366, 81 S.Ct. at 1525, 6 L.Ed.2d at 903. Neither the Second Circuit nor the Supreme Court was willing to reject the rule of discretion in the trial judge to declare a mistrial. 367 U.S. at 368, 81 S.Ct. at 1526, 6 L.Ed.2d at 904; 282 F.2d at 47. See also Brock v. North Carolina, 1953, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456; Lovato v. New Mexico, supra.

We think that the facts of the instant case bring it under Gori, rather than under Jorn. The Court below made no finding of prosecutional misconduct or manipulation. Such a finding would not have been justified on this record so that this case does not fit the line of cases exemplified by Downum, supra.

V

We recognize that the petitioner was deprived of the opportunity to have his fate determined by the jury first impaneled. Jorn, supra. This is significant in the context of this case, keeping in mind the nature of the defense and the apparent predisposition of juror McKnight to conclude that the defendant was, or at least appeared to be, “crazy”. The determination by the trial judge to abort the proceeding was not one to be lightly undertaken. Illinois v. Somerville, supra.

Immediately upon being informed of the conversation between one of the selected jurors and the court’s bailiff regarding an aspect of the case, the trial judge made every effort to ascertain what exactly had transpired in the bathroom of the courthouse that morning. Proceedings were held in chambers to explore the possible prejudicial effects the encounter might have on the trial. This inquisition proved not to be fully satisfactory, whereupon the trial judge separated juror McKnight from the remainder of the jury in order more fully to determine what had transpired. The decision to declare the mistrial was based upon the trial judge’s conclusion that juror McKnight had prematurely formed and held an opinion about an important element in the case without the prosecution having an opportunity to submit its evidence and further in the belief that the separation of the jury might cause other jurors to become overly concerned over the purpose of the brief interruption and separation of juror McKnight, thus raising questions in their minds wholly irrelevant to the merits of the case and, perhaps, inimical to the ends of justice.

The care with which the state trial judge attempted to learn and to weigh properly the full import of what had transpired distinguishes this case from Jorn, supra, where no such inquiry was undertaken. The trial judge made a sincere effort to determine whether “the ends of public justice,” Perez, supra, would be better obtained by declaring a mistrial and beginning anew. He was sensitive to the opposing requirements on his discretion. It is of no particular concern, whether we would or would not have reached a different result as a trial court. What is of controlling importance is that the state trial judge first painstakingly weighed all the factors present and thereupon exercised the discretion invested in him. His declaration of a mistrial was not unreasonable. The subsequent retrials did not violate Smith’s Fifth Amendment Due Process and Double Jeopardy rights as applied to the State of Mississippi through the Fourteenth Amendment.

Affirmed.

      . This incident is related in the text recounted by the bailiff Koerper. It was solely on the basis of his testimony that the trial judge declared the mistrial. See text, infra. Juror McKnight testified that bailiff Koerper:
      started the conversation . . . and was telling me about the eccentricity of the defendant, about him eating only meals that were a day old, you know, cooked today and eaten tomorrow, and how he — when he first came into the jail how he tried to bribe the deputy to get his belt to be hung. And that brought on my conversation and answer to these statements by the bailiff. Now I will assure you I haven’t prejudged the case, but as per the instructions of the District Attorney I have observed the defendant for future use in my deliberations about the matter. But I have a free mind and I have ho fixed opinion about this matter. I’m waiting for testimony from this box.
      BY THE COURT: Did you make the statement to the bailiff that he just made that he was crazy and that—
      A. I didn’t think I said crazy. I said I didn’t think that a man on trial for his life would show the non-interest, Judge, that my observation of the defendant led me to believe.
      I don’t believe I said crazy. I don’t recall that.
      * * * * *
      I just told him that I didn’t think that the defendant had shown a lot of intelligence in the proceedings, in his following the proceedings, his, you might say, interest. That’s roughly what I said. And that’s all I said. .
      Wlien recalled to the stand, bailiff Koerper denied having initiated the conversation with juror McKnight.

      . The trial transcript indicated that before the bailiff and juror were questioned the state made an in-chambers motion to disqualify and dismiss juror McKnight. Defense counsel responded by urging the court, based upon his understanding of what the testimony would be, to declare a mistrial in the event the court should rule in the state’s favor and dismiss juror McKnight.
      The trial judge at this time neither ruled on the defense motion nor expressly reserved the right to do so. Neither brief discusses the failure to rule. Nor was it considered by the federal habeas court.
      We accordingly treat defense counsel’s motion for mistrial as defunct. We also disregard failure of the record to show absence of a defense objection to granting the state’s motion for mistrial. Neither the briefs of the parties nor the district court made an issue of this point. On the contrary it is repeatedly asserted without denial that the motion was granted over defense counsel’s objection. We think it probable that the objection was voiced out of the hearing of the court reporter, when the court suggested a brief conference in chambers with counsel immediately after presentation of the state’s motion for mistrial. The record indicates that a brief conference occurred at that time.
      We have noted these inconsistencies upon our inspection of the record, but think that the agreement of the briefs disposes of them without the need for further consideration by us.

      . “BY DEFENSE COUNSEL: I’ll ask you this, would you state whether or not Mr. McKnight made any statement as to his prejudging the case, had any opinion whether the man was guilty or innocent?
      BAILIFF Koerper: He did not.” And see fn. 4, infra.

      . “JUROR McKnight: . . . Now I will assure you I haven’t prejudged the case ... I have a free mind and I have no fixed opinion about this matter. I’m waiting for testimony from this box.
      * * *
      BY THE STATE: Did you go into the question of whether or not he was able to distinguish right from wrong? JUROR: I did not.
      * * * Sit *
      BY THE STATE: Well, weren’t you prejudging the case, then and there, before you heard a word of testimony?
      JUROR: No, I was not. I was doing what you asked me to do, observe the man.” ;

      . “BY THE COURT :
      And as harmless as the juror, Mr. McKnight, thinks his actions are in tire premises, yet the expression of an opinion by a juror as to either guilt or innocence ... A juror has no right to express an opinion and to go into the trial of a case without hearing a witness having made any such expression. And, of course, I realize people are prone to chat and to talk, but its quite important in a criminal case, particularly in a capital case, that a juror refrain from any expression until it is time to go into a final deliberation. So I think on the basis of what transpired in this case, I think possibly the motion for mistrial ought to be granted and that this matter be terminated at this time in a mistrial and reset for trial. . . . . it is an expression of opinion here prior to hearing any testimony, which, I think, would be quite prejudicial to the State of Mississippi in the presentation of the case.
      * * * * *
      . . '. I think under the law, the law which requires that the jury not have made any expression as to guilt or innocence, either one, of a defendant in the trial of a lawsuit, I think that its just going to require that we have the mistrial in the case. And that’s without any particular criticism about it, but I think that it is going to have to be the requirement.”

      . As an alternativo, ground below, the respondent state contended and the district court held that as a matter of law a federal district court lacked jurisdiction to entertain Smith’s petition for writ of habeas corpus because petitioner failed to exhaust available state remedies in that he did not apply to the Governor of Mississippi for executive clemency and did not petition the United States Supreme Court for a writ of certiorari to consider the Mississippi Supreme Court’s rejection of his Fifth Amendment claim. From the closing portion of respondent’s brief it appears that this argument has not been abandoned: “Appellant has yet to exhaust his available state remedies and cannot seek Federal Court relief until having done so.” Respondent’s brief, page 15. This is puzzling in view of the following stipulation filed with the district court on December 10, 1971, ten days before it rendered its decision, and signed by both parties:
      . . . Petitioner herein, Will Allen Smith, has fully pursued and exhausted all State and administrative remedies that are available and open to him under the laws of the State of Mississippi. the Petition for Writ of Ha-beas Corpus filed before the United States District Court for the Southern District of Mississippi, Western' Division by Petitioner was the sole and only remedy at this time available to him in this cause.
      Although federal jurisdiction may not be conferred by stipulation of the parties, several observations are in order.
      We consider it settled, first of all, that failure to apply to the United States Supreme Court for a writ of certiorari to the Mississippi Supreme Court’s affirmance as to the double jeopardy issue is not a bar to federal habeas relief. Fay v. Noia, 1963, 372 U.S. 391, 435-438, 83 S.Ct. 822, 847-848, 9 L.Ed.2d 837, 867-868; Pleas v. Wainwright, 5 Cir. 1971, 441 F.2d 56, 57; Makarewicz v. Scafati, 1 Cir. 1971, 438 F.2d 474, 477, cert. denied, 402 U.S. 980, 91 S.Ct. 1685, 29 L.Ed.2d 145; Hedberg v. Pitchess, 9 Cir. 1966, 362 F.2d 511; Whippier v. Balkcom, 5 Cir. 1965, 342 F.2d 388, 390.
      Fay v. Noia, supra, also held that the exhaustion of remedies doctrine is a rule of comity only and not a jurisdictional requirement as it merely “relates to the appropi-iate exercise of power.” 372 U.S. at 420, 83 S.Ct. at 839, 9 L.Ed.2d at 858.
      Further, under the teachings of Brown v. Allen, 1953, 344 U.S. 443, 447-450, 73 S.Ct. 397, 402-404, 97 L.Ed. 469, 484-485, state remedies! were exhausted when the federal constitutional questions were decided adversely to petitioner on direct appeal, without any necessity for pursuing any collateral or post-conviction remedy. Cf. Wilwording v. Swenson, 1971, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418.
      Finally, any failure to seek executive clemency or pardon, clearly an act of grace, from tlie governor of Mississippi has not the slightest relation to questions involving the assertion of constitutionally guaranteed rights. The single case noted in this connection by the district judge, Shaver v. Ellis, Mgr., 5 Cir. 1958, 255 F.2d 509, held only — in connection with affirming the denial of last minute habeas relief to a prisoner under death sentence —that the Texas executive clemency procedures met due process requirements.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MEDICAL ANCILLARY SERVICES, INC., Respondent.
    No. 72-1732.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 13, 1973.
    Decided April 30, 1973.

      Jerome H. Brooks, Director, Region 7, N. L. R. B., Detroit, Mich., Roger Har-tley, Atty., N. L. R. B., Washington, D. C., for petitioner; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., on brief.
    Robert S. Rosenfeld, Southfield, Mich., for respondent; Keywell & Rosenfeld, James DiMeglio, Southfield, Mich., on brief.
    Before CELEBREZZE, MILLER and LIVELY, Circuit Judges.
   PER CURIAM.

The case is before the Court upon the petition of the National Labor Relations Board for enforcement of its order of February 1, 1972, finding the Medical Ancillary Services, Inc. (company) in violation of the National Labor Relations Act by its refusal to bargain with the union (Office and Professional Employees International Union, Local 10, AFL-CIO) as the certified representative of the company’s employees.

On July 8, 1971, pursuant to a Stipulation for Certification Upon Consent Election executed by the company and the union, an election was conducted among the company’s employees. Fifty-one ballots were cast for representation by the union and 49 were opposed to such representation. Following objections to the election filed by the company the Regional Director, pursuant to the Board’s rules and regulations, conducted an administrative investigation during which the parties were afforded an opportunity to submit evidence bearing on the issues. The evidence consisted of five affidavits submitted by the company and 10 written statements taken from witnesses by the Regional Director (not of course in the presence of any representative of the company). The Regional Director on July 28, 1972, informed the company that absent withdrawal of the objections he would issue a report recommending to the Board that it overrule the company’s objections. The company declined to withdraw the objections and on August 3 the Director issued his Report recommending that the company’s objections be overruled in their entirety and that the Board certify the union as the exclusive bargaining representative of the company’s employees. The company’s motion for reconsideration filed on August 4, supported by affidavits from two employer representatives, was overruled by the Regional Director on August 5, upon the ground that the proffer of new evidence was untimely and would not in any event warrant a result contrary to the result reached in the Director’s August 3rd report. The company filed with the Board exceptions to the Director’s report, supported by the affidavits presented to the Director and by four additional employees’ affidavits, requesting that the election be set aside and a new election ordered. The Board on November 15 adopted the Regional Director’s report and recommendations and certified the union. It concluded that the company’s exceptions raised no substantial issue of fact or law to warrant reversal of the Regional Director’s report. The company, commencing about October 12, refused to bargain with the union and in answer to an unfair labor practice complaint issued against it by the Board admitted its refusal to bargain, but defended on the ground that the certification was invalid for the reasons urged in its objections to the election. General Counsel in the unfair labor practice proceeding moved for summary judgment on the pleadings which the Board granted. At the same time it found that the company had violated § 8(a)(5) and (1) of the Act by its refusal to bargain. We are of the opinion from an examination of the record and applicable authorities that the Board erred in failing to find that the company was entitled to a hearing before the Board on its exceptions to the election, and consequently in finding the company guilty of violating the Act.

We are aware that the Board has a wide discretion in determining whether a hearing is required to review the administrative findings of the Regional Director in cases of consent elections. Yet this discretion is subject to judicial review where the exceptions to the Director’s report raise “substantial and material factual issues.” This subject was fully covered by the opinion of this court in N. L. R. B. v. Tennessee Packers, Inc., 379 F.2d 172 (6th Cir.), cert. denied 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967), from which we quote:

“The exceptions must state the specific findings that are controverted and must show what evidence will be presented to support a contrary finding or conclusion. N. L. R. B. v. National Survey Service, Inc., supra [361 F.2d 199 (7 Cir.)]; N. L. R. B. v. J. R. Simplot Company, supra [322 F.2d 170 (9 Cir.)]; Macomb Pottery Company v. N. L. R. B., supra [376 F.2d 450 (7 Cir.)]. Mere disagreement with the Regional Director’s reasoning and conclusions do not raise 'substantial and material factual issues.’ This is not to say that a party cannot except to the inferences and conclusions drawn by the Regional Director, but that such disagreement, in itself, cannot be the basis for demanding a hearing. To request a hearing a party must, in its exceptions, define its disagreements and make an offer of proof to support findings contrary to those of the Regional Director. The Board is entitled to rely on the report of the Regional Director in the absence of specific assertions of error, substantiated by offers of proof.

The purpose behind the rule which requires a hearing only when “substantial and material factual issues” are raised is to avoid lengthy and protracted proceedings, and eliminate unnecessary delays in certifying the results of an election. If a hearing is required to be held on all exceptions to an election or report of a Regional Director, it would unduly lengthen and prolong labor unrest, contrary to the very purposes of the National Labor Relations Act. The cases relied upon by respondent in support of its contention that it is entitled to a hearing, all deal with cases in which the court determined that ‘substantial and material factual issues’ were raised, and therefore held that the Board erred in not ordering a hearing. United States Rubber Company v. N. L. R. B., 373 F.2d 602 (C.A.5); N. L. R. B. v. Capital Bakers, Inc., 351 F.2d 45 (C.A.3); N. L. R. B. v. Joclin Mfg. Co., 314 F.2d 627 (C.A.2); N. L. R. B. v. Lord Baltimore Press, Inc., 300 F.2d 671 (C.A.4) ; N. L. R. B. v. Dallas City Packing Co., 230 F.2d 708 (C.A.5); N. L. R. B. v. Poinsett Lumber and Mfg. Co., 221 F.2d 121 (C.A. 4). In N. L. R. B. v. Sidran, 181 F.2d 671 (C.A.5),.cited by respondent, the Court could only have held that the Board erred in denying a hearing if ‘substantial and material factual issues’ were raised.” 379 F.2d at 178.

We interpret this decision and the authorities cited as requiring the Board to grant a hearing if the exceptions do indeed raise substantial and material issues of fact and “show what evidence will be presented to support a contrary finding or conclusion.” If these criteria are met no formalistic “request” for a hearing is necessary. In such cases it is our view that a request for a hearing is necessarily implied.

In this case the company’s exceptions are detailed, specific and factual as to material issues. They also proffer specific evidence to be relied upon. We think this is self-evident from the exceptions themselves which we reproduce in their entirety in the appendix to this opinion together with the accompanying additional affidavits.

Being of the opinion that the company’s exceptions fully complied with the standards for a Board hearing prescribed by its own Rules and Regulations as well as by the applicable authorities, the Board’s application for enforcement of its order of February 1, 1972 is denied, the said order and the order approving and adopting the Regional Director’s Report, are vacated, and the action is hereby remanded to the Board with directions that the company be afforded a full adversary hearing upon its exceptions to the Regional Director’s Report either before the Board itself or a hearing officer. Any findings emerging from such hearing shall be subject to applicable review procedures.

APPENDIX

EMPLOYER’S EXCEPTIONS TO REGIONAL DIRECTOR’S REPORT AND RECOMMENDATIONS ON OBJECTIONS

STATEMENT OF FACTS

Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Regional Director for the Seventh Region of the National Labor Relations Board on June 17, 1971, an election by secret ballot was conducted on July 8, 1971, among the employees of the Employer.

Upon the conclusion of the election a Tally of Ballots was served upon the parties which showed the following results: One hundred (100) valid votes were counted. Fifty-one (51) votes were cast for the Union. Forty-nine (49) votes were east against the Union. Thus, one (1) vote was the deciding factor in this election.

On July 15, 1971, the Employer filed Objections to Conduct Affecting the Results of Election and attached the affidavits contained in Appendix 1-5. The Employer’s objections were as follows:

1. That on July 8, 1971, immediately prior to the election, union supporter Larry Kuzak stated to various employees eligible to vote in the election that Yvonne Tilwick, a fellow employee who was off because of illness, was not going to receive the disability insurance which the employee handbook stated she was entitled to.
2. That on July 8, 1971, immediately prior to the election, union supporter Mary Tavtigian stated to various employees eligible to vote in the election that:
(a) Yvonne Tilwick was not being paid the disability insurance she was entitled to because the company deliberately “screwed up” her claim so that she would not be paid.
(b) That Elisabeth Rohrmaier telephoned this same Yvonne Tilwick and ordered her to vote or else be discharged.
(c) That Norma Harvey, an employee in the designated bargaining unit was not paid for a day off, July 6, 1971, and was given no reason for not being paid.
(d) That some of the girls in her department had worked over forty (40) hours in a week and had not received overtime pay for doing so.
3. That these statements were a substantial departure from the truth.
4. That the two individuals who made these statements had no factual bases on which to make such statements and, therefore, made them with the deliberate intention of misleading voters.
5. That these material misrepresentations were intentionally made immediately prior to the election when the Employer was unable to effectively neutralize them.
6. That these misrepresentations materially affected the attitude of several voters, in that they caused them to doubt the integrity of the Company and, thus, influenced their vote creating a significant impact on the outcome of the election.

As a result of the filing of these objections, an investigation was conducted under the direction and supervision of the Regional Director. The Regional Director, in his “Report and Recommendations on Objections” dated August 3, 1971, concluded that the Employer’s objections should be overruled in their entirety, and that the Board should issue a Certification of Representation reflecting that the petitioning union had received a majority of the valid ballots cast in the election. It is to this Recommendation that the Employer takes exception, on the basis that the Regional Director’s conclusion cannot be sustained by the evidence and, furthermore, that new evidence was discovered by Company investigators subsequent to the Regional Director’s investigation which, when examined, requires a contrary conclusion.

EXCEPTIONS

EXCEPTION 1

The employer’s Objection No. 1 states that on the day of the election Larry Kuzak, an employee and widely known union supporter, informed various employees that employee Yvonne Tilwick was not going to receive the disability insurance which the Employer had promised to provide for her, and that this statement was a substantial departure from the truth which had a significant impact upon the election.

The Regional Director states that his investigation disclosed that, on the day of the election, Kuzak approached two employees and commented to them that he had heard that Tilwick had not received her disability insurance, and that this was a statement of fact since Til-wick did not receive her first check until July 9, 1971, the day after the election. The Regional Director then stated that Kuzak was merely repeating what he had heard from others, which was clearly hearsay and not a material misrepresentation of fact; and, since this was not a substantial departure from the jtruth, the Objection should be overruled.

The evidence submitted by the Employer, in the form of the two affidavits of the employees Kuzak talked to, demonstrates that Kuzak did not merely state that Tilwick had not as yet received her disability insurance, but that he represented the fact to be that she was not going to receive the disability pay which the Company had promised to pay employees. (Appendixes 1 and 2) Thus, Kuzak attacked the credibility of the Company, a major issue in any organization drive. Where Kuzak got the idea to make this statement is of no consequence. The fact was, as is demonstrated by the attached affidavit, that Yvonne Tilwick has and will continue to receive all the benefits she is entitled to. (Appendix 5) The employees to whom this statement was made possessed no independent knowledge of the facts surrounding it. They believed it and it affected their vote. (Appendixes 1 and 2) This misrepresentation of fact was spread by Kuzak at a time so close to the time set for the election that the Employer had no opportunity to reply and negate the effects of it. This statement, which admittedly affected the votes of at least two employees in an election in which the outcome could have been changed by one vote, was certainly material in that, if true, it would have demonstrated a lack of credibility on the part of the Employer. The fact that it was proven false makes it a misrepresentation. Kuzak made a statement which was a substantial departure from the truth and, thus, was a material misrepresentation of fact to employees voting in an election at a time when the Employer was unable to make an effective reply; and this misrepresentation was one which not only could reasonably be expected to have significant impact upon the election, but which, indeed, did have such an impact. Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962), 51 LRRM 1600.

EXCEPTION 2

The Employer’s Objection No. 2 stated that on the day of the election Mary Tavtigian, an employee who had identified herself as strongly favoring the union, made several statements to various employees which were substantial departures from the truth and which had a significant impact upon the outcome of the election.

Mary Tavtigian stated that Yvonne Tilwick, who was ill, had received no disability payment from the insurance company because Medical . Ancillary Services, Inc. had deliberately “screwed up” her claim so that she would not be paid.

The Regional Director states that his investigation disclosed that Tavtigian informed several employees that Yvonne Tilwick had not yet received her disability insurance check, but he declares that there is no substantial proof to indicate that any comment was made to the effect that the Employer was deliberately trying to prevent Yvonne Tilwick from receiving her benefits. It is difficult to understand how the affidavit of a fellow employee can be summarily dismissed by the Regional Director. (Appendix 3) Moreover, other employees have since come forward and have signed affidavits that they were also told that the Company was deliberately not going to pay Yvonne Tilwick the disability insurance benefits to which she was entitled. (Appendixes 10 and 11) The statement is false; as previously stated, it has been established that the Company has provided the insurance to which Yvonne Tilwick is entitled.

The Regional Director states that his investigation revealed that Tavtigian commented to several employees that the Employer had talked .with Tilwick and asked her to vote in the election if it was possible, but that Tavtigian did not attribute to the Employer any threat of discharge to Tilwick if she did not vote.

However, an employee has stated in her affidavit that she was told by Tav-tigian that a telephone conversation had taken place between Elisabeth Rohr-maier and Yvonne Tilwick, during which Elisabeth had informed Yvonne Tilwick that, if she did not come in to vote, the Company would find some way to get rid of her. (Appendix 3) Another employee also stated that she had been told that Elisabeth Rohrmaier had threatened Yvonne Tilwick by telling her that, if she did not come in to vote, the Company would find a way to discharge her. (Appendix 8) This fact was demonstrated by affidavit to be untrue. (Appendix 5)

There is clear evidence contrary to the findings of the Regional Director that Mary Tavtigian did attribute to the Employer the threat of discharge to Yvonne Tilwick if she did not vote.

In response to the Employer’s charge that Tavtigian had stated that one of the employees, Norma Harvey, had not been paid for a day for which she should have been paid, even though she had taken the day off, the Regional Director stated that, “Tavtigian merely made the comment to one employee that several of the employees in her department were upset because Harvey had not been paid for a day for which she believed she should have been paid.”

However, another employee, in her affidavit, states that what Tavtigian told her was that Norma Harvey was not paid for the day, was not given any reason why she was not paid, and had told Tavtigian that she was glad that Friday was her last day. (Appendix 3) Another employee subsequently stated that she had been told this as well. (Appendix 11)

The Regional Director states that his investigation revealed that “Tavtigian merely stated to at least two employees that four of the nine employees in the. Evaluation Department felt that they had not received all of the pay which was due to them.”

The affidavit of one employee makes it clear that what was said was that four out of nine girls were paid what they were entitled to and the rest were not. (Appendix 3) The affidavit of another employee supports this. (Appendix 4) Other employees also have subsequently informed the Employer’s investigators that they were told that employees had not received the overtime pay to which they were entitled. (Appendixes 9, 10 and 11) This was not true. Employees did receive all overtime payments to which they were entitled. (Appendix 5) The Regional Director’s finding, again, runs contrary to the evidence in his possession at the time he made his conclusion, as well as the newly discovered evidence.

The Regional Director goes on to state that elections are not only invalidated because of the conduct of the parties, but also because of third-party conduct which interferes with the rights of the employees in the selection of a bargaining representative. He states, however, that normally the conduct of individual employees will be deemed interference sufficient to set aside an election only when they are acting as a representative of, or with knowledge and consent of one of the parties to the election. If there is no showing of agency, the Regional Director states that, if the conduct of an employee, as a third party, creates an atmosphere incompatible with the employees’ freedom of choice and there is such a general atmosphere of confusion and fear of reprisal as to render impossible the rational, uncoerced selection of a bargaining representative, then the election may be set aside.

The Regional Director concludes that the conduct of Mary Tavtigian did not create such an atmosphere of confusion as to render impossible the holding of a free and untrammelled election.

The statements made by both Kuzak and Tavtigian did create such an atmosphere. The affidavits attached hereto clearly indicate that the statements they made were false statements of fact and influenced the votes of individuals in several cases: indeed, in far more cases than were actually needed to alter the outcome of the election.

The theory behind the rule not requiring an agency relationship to set aside an election, if a general atmosphere of confusion and fear are created, is based on the premise that, regardless of who created such an atmosphere or who has knowledge of it, it has presumably destroyed the integrity of the election and has, thus, disrupted the laboratory conditions which a fair election necessitates. Here we do not need such a presumption that the election was interfered with. The evidence demonstrates that such was the case. Thus, the election should be set aside, regardless of whether or not an agency relationship is present.

Furthermore, what had not been divulged in any previous investigation was subsequently learned by Company investigators, that is that Mary Tavtigian was the Union’s Chief Stewardess, a fact previously undiscovered not only by the Company investigators, but also by the Regional Director. Thus, Tavtigian was acting as a representative of the Union at the time she made the statements set out in the Employer’s Objections. The agency relationship which the Regional Director found lacking has, thus, been established and Mary Tavtigi-an’s conduct, by itself, is enough to set aside the election. (Appendixes 6 and 7) Vicker’s, Inc., 152 NLRB No. 84 (1965), 59 LRRM 1196. This status of Tavtigian was unknown with certainty until after August 3, 1971, when Sandra Malone was made a supervisor and advised the Company investigators of this fact.

The statements made, as demonstrated by the attached affidavits, represented facts as being other than they were and, thus, were a departure from the truth. They were clearly material misrepresentations, in that they caused several individuals to alter their votes in reliance upon them.

These were far more than the inar-tistically or vaguely worded messages described in Hollywood Ceramics Company, Inc., supra, as being inefficient [sic] to warrant the setting aside of an election.

The statements made were moré than minor distortions which did not have a significant impact on the election. In essence, they were untrue statements, which, if taken as true by those to whom they were related and who had no independent knowledge of the incidents described to them, indicated that the Employer did not keep its word, treated its employees in a malicious manner, threatened its employees, and cheated them when the opportunity arose for it to do so. Several employees have indicated that these statements materially affected their attitude toward the Company when they voted. (Appendixes 1, 2, 8, 9, 10 and 11)

The Regional Director states that the statements made by Mary Tavtigian were not made by her alone and that others in the office discussed these subjects. This is of consequence only as far as it admits that others in the office were deeply concerned about the statements Tavtigian was making. The Regional Director states that statements such as these are typical in an election. To the contrary, such misrepresentations are not typical pre-election experience. Moreover, the crux of Hollywood Ceramics Company, Inc. is not whether conduct is typical, but whether it is such that the integrity of an election has been impaired. Here it was.

The Regional Director assumes that the employees had independent knowledge of the facts with respect to the statements made and would doubt the validity of such statements, and that, even if they did not possess such knowledge, they would certainly have investigated the validity of the statements.

This assumption flies in the face of the evidence. There is no indication that any employee had independent knowledge of the statements made to them. In fact, there is evidence that several employees believed the statements and did not learn of their falsity until after the election. As stated in the attached affidavits, employees did not cheek these statements for two reasons: (a) they were nervous about doing so; and (b) they had insufficient time in which to do so since the statements were made so close to the time the polls opened. (Appendixes 8 and ID

EXCEPTIONS 3, 4, 5 and 6

The Regional Director refers to paragraphs 3, 4, 5 and 6 of the Employer’s Objections as objections and states that they are merely conclusionary statements and support the two previously discussed objections. He states that they lack the specificity required of objections and, thus, recommends that they be overruled.

These paragraphs were never intended to operate as separate objections. The fact that the statements made in the previous objections were a substantial departure from the truth, that there was no factual basis for them, and that they were made immediately prior to the election when the Employer was unable to effectively neutralize them, and that these statements resulted in a change in the attitude of several voters causing them to alter their vote, thus creating a substantial impact on the election and, therefore, impairing its integrity, are the' only conclusions which the evidence will allow one to reach.

WHEREFORE, it is prayed that the National Labor Relations Board set aside the election of July 8, 1971, and order a new election.

Respectfully Submitted, KEYWELL AND RO-SENFELD

/s/ Robert S. Rosenfeld Attorneys for Employer, Medical Ancillary Services, Inc. 26300 Telegraph Road Southfield, Michigan 48076 313-352-8500

Dated: August 18,1971 [Proof of Service]

APPENDIX 8

AFFIDAVIT

GAYLE FRITSCH, being first duly sworn, deposes and says:

1. That I am an employee of Medical Ancillary Services, Inc., a Michigan corporation.

2. That I was eligible to vote in the election held on Thursday, July 8, 1971, to decide whether a majority of employees of Medical Ancillary Services who were in the designated bargaining unit desired to be represented by the Office and Professional Employees International Union.

3. That on Thursday, July 8, 1971, just prior to the commencement of the election, I heard that Elisabeth Rohr-maier, Vice President in charge of production and quality control, had called a sick employee, Yvonne Tilwick, at her home and threatened that if she did not come in to vote, the company would find a way to discharge her.

4. That on Thursday, July 8, 1971, just prior to the election, I heard that certain employees had not received the overtime pay to which they were entitled.

5. That I believed these statements, and they had a substantial effect upon my view of the company, and thus greatly affected my vote' in the election.

6. That I did not check these statements at the time I heard them because I was nervous about doing so, and I did not learn that they were untrue until subsequent to the election.

Further, affiant saith not.

Gayle Fritsch

Subscribed and sworn to before me this . . day of August 1971.

Notary Public, Oakland County, Michigan

My commission expires . . ------

APPENDIX 9

AFFIDAVIT

LINDA McLATCHER, being first duly sworn, deposes and says:

1. That I am an employee of Medical Ancillary Services, Inc., a Michigan corporation.

2. That I was eligible to vote in the election held on July 8, 1971, to decide whether or not a majority of myself and the other employees in the designated appropriate bargaining unit desired the Office and Professional Employees International Union to collectively bargain with our Employer as our representative.

3. That on July 8, 1971, I heard that several employees in the Evaluation Department had not received the overtime to which they were entitled.

4. That I believed this and felt it was unfair, and this materially affected my attitude toward the company when I voted.

5. That subsequent to the election, I learned that this was not true.

Further, affiant saith not.

Linda McLatcher

Subscribed and sworn to before me this ------ day of August, 1971.

Notary Public, Oakland County, Michigan

My commission expires-------

APPENDIX 10 AFFIDAVIT

JUDY EATMON, being first duly sworn, deposes and says:

1. That I am an employee of Medical Ancillary Services, Inc., a Michigan corporation.

2. That I was eligible to vote in the election held on July 8, 1971, to determine whether a majority of the employees of Medical Ancillary Services who were in the designated bargaining unit desired to be represented by the Office and Professional Employees International Union.

3. That on Thursday, July 8, 1971, prior to the election, I was told that Yvonne Tilwick, a fellow employee, had not yet been paid and was not going to be paid the disability insurance benefits to which she was entitled as an employee of Medical Ancillary Services.

4. That I heard that certain employees had not received all the overtime pay to which they were entitled.

5. That these statements created doubts in my mind about the kind of company I was working for at the time I voted in the election.

Further, affiant saith not.

Judy Eatmon

Subscribed and sworn to before me this ------- day of August, 1971..

Notary Public, Oakland County, Michigan

My commission expires .....

APPENDIX 11 AFFIDAVIT

LINDA PAWLOWSKI, being first duly sworn, deposes and says:

1. That I am an employee of Medical Ancillary Services, Inc., a Michigan corporation.

2. That I was eligible to vote in the election held on July 8, 1971, to determine whether a majority of the employees of Medical Ancillary Services who were in the designated bargaining unit desired to be represented by the Office and Professional Employees International Union.

3. That on Thursday, July 8, 1971, immediately prior to the commencement of the election, I was told that the company was deliberately not going to pay Yvonne Tilwick, a fellow employee, the disability insurance benefits to which she was entitled.

4. That some employees in the Evaluation Department had not been paid all the overtime pay to which they were entitled.

5. That Norma Harvey, a fellow employee, had not been paid for a day off for which she was entitled to be paid and that she was not given any reason as to why she was not paid.

6. That at the time I was told of these statements, I did not check to verify their truth, since I did not have time before going to vote in which to do so. These statements affected to a high degree my attitude toward the company and caused me to alter my vote.

7. That I did not find out that these statements were untrue until subsequent to the election.

Further, affiant saith not.

Linda Pawlowski

Subscribed and sworn to before me this .... day of August, 1971.

Notary Public, Oakland County, Michigan

My commission expires ......

      . The Board’s decision and order are reported at 195 NLRB, No. 50 (1972).

      . This was true even though the Board did not have before it any of the state-meats or affidavits upon which the Direc- ' tor relied in recommending certification.

      . A request for a hearing should be readily inferred in a case, such as the present one, where the exceptions to the Director’s Report are not only specific but are supported by a proffer of evidence and where the Board has merely adopted the recommendation of the Director without having before it any of the evidence upon which the Director relied. Under such circumstances it is difficult to see how the Board could achieve fundamental fairness in discharging its responsibility to review the Director’s recommendation without according an adversary hearing.

      . Appendixes 1 through 5 were signed and submitted to the Regional Director at the time the Objections were filed on July 15, 1971.
      Appendixes 6 and 7 contain evidence which, in part, could only have been discovered by company investigators subsequent to the Regional Director’s investigation and were submitted to the Regional Director on August 4, 1971.
      Appendixes 8, 9, 10 and 11 contain evidence newly discovered from employee statements subsequent to the reeeipt oí the Regional Director’s Decision, and are submitted to the National Labor Relations Board for the first time as such.


author: MANSFIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. James Seth STEWART, Defendant-Appellant.
    No. 719, Docket 73-1036.
    United States Court of Appeals, Second Circuit.
    Argued March 23, 1973.
    Decided April 25, 1973.

      Frederick B. Boyden, New York City, for defendant-appellant.
    George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., Richard J. Davis, Asst. U. S. Atty., New York City, of counsel), for appellee.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

James Seth Stewart, Jr., appeals from a judgment of conviction for willful refusal to submit to induction in the Armed Forces, 50 U.S.C. App. § 462(a), entered after a trial in the United States District Court for the Southern District of New York before Judge Charles L. Brieant, Jr., sitting without a jury. Appellant was sentenced on December 14, 1972, as a young adult offender, 18 U.S. C. §§ 4209, 5010(d), to a term of nine months, but was released on bail pending his appeal. In this court he challenges, as he did below, the validity of the underlying induction order, which followed in due course the rejection by the Selective Service System of his claim for exemption from combatant and noncombatant training and service in the Armed Forces as a conscientious objector. See 50 U.S.C. App. § 456(j). Finding error in the administrative proceedings that culminated in denial of Stewart’s request for classification as a conscientious objector, we reverse his conviction.

The essential facts are not disputed. Appellant duly registered with Local Board No. 10 in Mount Vernon, New York, on July 28, 1966. He was thereafter classified II-S (student deferred from military service) from September 26, 1966, to August 19, 1970, as a result of his full-time undergraduate attendance at Stanford University. On February 6, 1970, he requested from the Local Board Selective Service Form 150, the application form for classification as a conscientious objector to combatant training and service (I-A-0 status) or to both combatant and noncombatant training and service (1-0 status). He thereafter received the form, filled it out, and returned it to the Board on March 26, 1970. In his application for 1-0 status, Stewart stated that he was “conscientiously opposed to participation in war in any form, . . . further opposed to participation and service in the Armed Forces . . . , but prepared to perform civilian alternative service if called.” He submitted a six-page essay in fulfillment of the requirement that he offer certain specified information to substantiate his conscientious objector claim. In it he expressed his beliefs that “God is the creator of life, and his power is Love; love transforms the mystery and contradictions in the human experience into a process of holiness”; and that “war is not fit for men.” He further stated:

“Since I will never be persuaded that the destruction of life ever enhances the quality of life, my beliefs insist that I not only never kill, but also that I never ask anyone to kill for my sake. ... I also oppose by the nature of my beliefs any decision made of who is to kill and be killed. I therefore cannot serve the war machine of my country in any way.”

The source of his beliefs he described as his faith in Christianity and his loving, Christian family background, including the influence of his father, grandfather and uncle, all of whom are ministers. However, he professed to some doubts of his own religious orthodoxy, which had in part prevented him, erroneously, from seeking conscientious objector status at an earlier date. He went on to explain in further detail why his conscientious objection had not surfaced earlier. In answer to the question of whether he had given expression to his views, he cited “many long talks about war and loyalty, peace rallies, a sit-in, and work on the Moratorium. But mainly, I have been concerned. And I also hope that refusing to go to war can be seen as a daily event in my life.”

In support of his application, friends and relatives of Stewart submitted eight letters generally noting his integrity and his sincere commitment to his religious beliefs in peace and non-violence.

On August 19, 1970, the Local Board granted appellant a 10-minute discretionary pre-classification interview, at the beginning of which he submitted an additional typewritten statement reiterating that “God is the creator of life, and his power is love” and that “my beliefs insist that killing and war is wrong, and that I not do it.” The Local Board denied his request for 1-0 classification and reclassified him from II-S to I-A (available for induction) by a unanimous 3-0 vote. In its summary the Board explained its action by concluding :

“Registrant is not a genuine conscientious objector based on the norms set forth in LBM #107 in that registrant’s objection is not to all war but to the present specific war.”

The Executive Secretary of the Local Board summarized in longhand the oral information given by appellant, noting on the summary sheet, among other things, that “Registrant said he could understand World War 2 but this war (Vietnam) he cannot serve.”

At the bottom of the summary of oral information provided by the registrant the following appeared:

“Board’s Note: Registrant stated that he would have served in a war like World War 2, but under no circumstances would he be involved or serve in the present type of war.”

On August 27, 1970, the day after appellant was notified of the denial of his claim, he reviewed his file. In a letter delivered to the Board on September 10, he appealed the I-A classification, denied having said that he “would have fought in World War II,” and requested a personal appearance to discuss the reason for the denial of his application for I — 0 status. On November 18, 1970, appellant appeared as a matter of right before the Board, again seeking a 1-0 classification. He submitted a statement explaining his beliefs and describing the misunderstanding about what he had said at the August 19th interview in the following manner:

“I was asked, ‘How do you think W.W. II compares to the present war?’ I responded that I could understand how a man of conscience could have fought in that war, but that I couldn’t understand how someone could in the present war.
“I said that because I know men in my family of great morality who felt at the time that it was their duty to fight, and from my understanding of those times I can sympathize with the dilemma they responded to.
“However, their times and experiences are not mine. I was raised with a different perspective on war.
“There is no contradiction in my mind: to understand the dilemma under which someone once acted with concience [sic] does not obligate one to commit himself to that action, or in any way invalidate the sincerity of one’s intention.”

The Board's summary of the November 18 appearance reflected appellant’s denial that he had ever said he would have fought in World War II, his version of what he had said, and the following:

“The board asked registrant is he a man of conscience. Registrant answered he is. Registrant said that he cannot throw himself back in World War #2, he is against all wars. . Registrant said he could not understand why the board felt that he is not sincere. He is prepared to do alternate service.”

The Board did not indicate wnether or concience [sic] does not obligate one how it reconciled the factual inconsistency between Stewart’s version and its Executive Secretary’s summary version of the August 19 interview. Instead, the Board members again unanimously denied appellant a 1-0 classification with the bare conclusion that “the Local Board is not convinced of the sincerity of registrant’s claim as a conscientious objector.” As Judge Brieant noted in his opinion “[t]he Local Board indicated no specific fact or reason which led to its conclusion that defendant was insincere. . . .”

Stewart appealed his I-A classification on January 4, 1971. He also wrote letters to the Local Board on January 4, 6, and 14 attempting to clear up the apparent misunderstanding and convince the members of his sincerity, but the clerk did not bring any of these letters to their attention and no action was taken on them. On February 18, the Appeal Board unanimously sustained the Local Board’s classification of appellant as I-A, without stating any reasons for its decision, during a one-hour meeting in which the classifications of 102 registrants were reviewed and determined. Of these, 89 classifications were sustained and 13 were reversed, though none of the 6 conscientious objector appeals was granted. The Appeal Board members did not have the registrants’ files before them until the meeting, and there was uncontradicted testimony that they sometimes did, and sometimes did not, review the files but that in the former case they did not make any notation of files reviewed. They did receive summaries of the files about two weeks in advance of the meeting, but these were customarily discarded later and appellant’s was never found.

On November 10, 1971, appellant refused to submit to induction. His indictment and conviction followed. Judge Brieant held that there was a “basis in fact,” Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), for the I-A classification given appellant by the Local Board after his November 18 appearance. He further concluded that the. failure of the Board members to give reasons for their conclusion that Stewart had not convinced them of the sincerity of his claim as a conscienious objector did not invalidate the I-A classification he was given, since Judge Brieant was able to infer the existence of legally sufficient reasons which appeared to have a factual basis in the record. He explained:

“A reasonable interpretation of the material set forth in his Form 150, taken together with the results of his prior appearance before the same Board, compared with the circumstances of his second appearance, are sufficient to lead a reasonable man to the conclusion that defendant’s response was something which had occurred because of the lack of justice in the Viet Nam War, and was not a conscientious objection to all wars. If the Board believed, as I find that it did, based on its colloquy and summaries, and a fair reading of Form 150, that defendant, if the Hitler holocaust were revisited on us today, would have done just as his father and uncles did, then it was justified in finding him insincere in his claim to conscientious objection. ■
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“The local board was justified in concluding that defendant adjusted his viewpoint about World War II slightly, claiming that with today’s beliefs he would not have fought in yesterday’s war, and doing so was a recent contrivance, solely for the purpose of gaining a valid basis for 1-0 classification.”

It is settled that conscientious objector status may be denied to a registrant found to oppose only a particular war as “unjust” rather than all “war in any form.” Gillette v. United States, 401 U.S. 437, 447, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). However, before determining whether that principle applies here, we are confronted with a preliminary, but nevertheless crucial, question. Despite the district court’s interpretation of the material before it, it is undisputed that nothing Stewart had said or done was in fact suggested by the Board as the basis for its rejection of Stewart’s claim. The district court reached its conclusion only through the process of assuming what the Board would have said if it had articulated the factors relied upon as the basis for its decision. The issues squarely presented upon this appeal, therefore, are (1) whether the Board’s failure to specify the reasons for its action is fatal, and (2) if not, whether there was a factual basis for the denial of Stewart’s claim.

Until very recently there was some precedential support in this Circuit, apparently relied upon by Judge Brieant, for the proposition that a local draft board, prior to the 1971 amendment noted in the margin, was “not required to give any reasons for its decisions,” United States ex rel. Zelman v. Carpenter, 457 F.2d 621, 622 n. 1, 624 (2d Cir. 1972), and that where the board failed to specify its reasons other than in general conclusory terms the court could independently search the record to determine whether there was a basis in fact for the board’s decision, see Weissman v. Officer of the Day, 444 F.2d 1326, 1328 (2d Cir. 1971); Rosengart v. Laird, 449 F.2d 523, 529 (2d Cir. 1971), vacated and remanded, 405 U.S. 908, 92 S.Ct. 931, 30 L.Ed.2d 779 (1972). The reasoning behind this approach, as the district court here recognized, was that a group of voluntary laymen cannot be expected to make detailed findings or statements of reasons of the type usually expected of professionals well versed in legal requirements for administrative review, see United States v. Aull, 341 F.Supp. 389, 394, aff’d, 469 F.2d 151 (2d Cir. 1972). However, at the same time there have been those who have consistently expressed apprehension lest the “mere ipse dixit of lack of sincerity from the Local Board or the hearing officer would create serious possibilities of abuse,” United States v. Corliss, 280 F.2d 808, 814 (2d Cir.), cert. denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960), and who have emphasized that while “boards of volunteer laymen cannot be expected to express themselves with the elaboration of expert regulatory agencies” it is important for a reviewing court to know the grounds upon which the board acted. Paszel v. Laird, 426 F.2d 1169, 1175 (2d Cir. 1970). A serious claim of conscientious objection, it was observed, “deserved something better than an ambiguous checkmark,” id. See also United States v. Deere, 428 F.2d 1119 (2d Cir. 1970); United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970). At least five other circuits, moreover, concluded, prior to more recent Supreme Court decisions on the subject (discussed below), that a local board’s failure to state the reasons for its action constituted a denial of due process requiring reversal, in such instances, of a conviction based upon the refusal to obey the board’s induction order. United States v. Edwards, 450 F.2d 49 (1st Cir. 1971); United States v. Speicher, 439 F.2d 104 (3d Cir. 1971); United States v. Broyles, 423 F.2d 1299 (4th Cir. 1970) (en banc); United States v. Stetter, 445 F.2d 472, 481-85 (5th Cir. 1971); United States v. Jamison, 463 F.2d 1219 (9th Cir. 1972).

Any uncertainty as to whether a local board’s failure to articulate its reasons for denial of conscientioüs objector status calls for reversal of the applicant’s later conviction was eliminated by the Supreme Court’s recent decisions in Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972), and in Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972). In Lenhard, which went to the Supreme Court from this Circuit, the local board had, without stating any reasons, denied appellant’s application for status as a conscientious objector and classified him I-A, following which he failed to respond when called for induction. After Lenhard was convicted we, upon appeal, remanded the case to the district court to determine whether there was a factual basis for the board’s classification. The district court, following a hearing in which board members testified as to their reasons for concluding that Lenhard was insincere, reinstated the conviction. We affirmed.

Upon Lenhard’s petition to the Supreme Court for a writ of certiorari the Solicitor General filed a memorandum requesting that the writ be granted, the judgment vacated, and the conviction reversed on the ground that since Len-hard’s application had made out a prima facie claim for classification as a conscientious objector the failure of the local board to state its reasons for its denial of his claim precluded meaningful administrative review as mandated by Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). With respect to the requirement that the board state its reasons the Solicitor General’s memorandum stated:

“[W]e are unable to subscribe fully to the Second Circuit’s remand procedure in the circumstances of this case. It is here undisputed that petitioner stated a prima facie case for conscientious objector status, that the local board regarded the claim as sufficient to warrant a reopening of the classification (Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362), and that, therefore, reasons should have been stated by the board in support of its decision (see Gov’t. Mem. on Merits in Joseph v. United States, No. 70-251, this Term, pp. 18-23). Only in this way can a registrant, whose claim has ‘met the statutory criteria’ (Parrot v. United States, 370 F.2d 388 (C.A.9)), and whose ‘veracity * * * is the principal issue’ (United States v. Washington, 392 F.2d 37, 39 (C.A.6)), be assured of a ‘meaningful review’ (cf. Gonzales v. United States, 348 U.S. 407, 415, 75 S.Ct. 409, 99 L.Ed. 467) of the administrative determination, not only by the courts (see, e. g., Scott v. Commanding Officer, 431 F.2d 1132 (C.A.3); United States v. Haughton, 413 F.2d 736 (C.A.9.)), but also by the State Appeal Board (see, e. g., United States v. Speicher, 439 F.2d 104 (C. A.3); United States v. Broyles, 423 F.2d 1299 (C.A.4)).
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“Our difficulty is ... at the administrative review level; we agree with the dissent below that the belated revelation at the hearing following the trial of the local board’s reasons does little to make the earlier review of the claim by the State Appeal Board any more meaningful. While that review is de novo, the Selective Service regulations provide that the one taking an administrative appeal shall have an opportunity to submit a written statement to the State Appeal Board setting forth in what manner he believes the local board erred (32 C.F.R. 1626.12). As this Court recognized many years ago in Gonzales v. United States, supra, 348 U.S. at 415, 75 S.Ct. 409, ‘the right to file a statement before the Appeal Board includes the right to file a meaningful statement, one based on all the facts in the file and made with awareness of the recommendations and arguments to be countered.’ This, we think, requires, at the very least, knowledge of the grounds for the local board’s decision. See, e. g., United States v. Broyles, supra, 423 F.2d at 1305-1306; United States v. Washington, supra, 392 F.2d at 39.”

The Supreme Court thereupon remanded both Lenhard and Joseph, a similar case, “for consideration in the light of the position now asserted by the Solicitor General.” 405 U.S. 1006, 1013. Upon remand we reversed Lenhard’s conviction. 461 F.2d 1268 (1972).

We interpret the Supreme Court’s decisions in Lenhard and Joseph as dictating that where an applicant states a prima facie case for classification as a conscientious objector and the local board fails to state its reasons for denial of the application, thus precluding meaningful administrative review, a conviction based upon the board’s I-A classification must be reversed. United States v. Holby, 477 F.2d 649, 651, 656-657 (2d Cir. 1973). Accord, United States v. Hulsey, 463 F.2d 1071, 1075 (7th Cir. 1972); United States v. Hanson, 460 F.2d 337, 342-343 (8th Cir. 1972). An independent review by the district court to determine whether a “basis in fact” existed for the local board’s action is not an adequate substitute for the board’s failure to articulate its premises. Aside from the questionable propriety of a court’s substitution of its speculation for the board’s silence, see SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943), the court’s findings, which occur after the administrative review, come too late to enable the applicant to rebut or refute them upon review by the Appeal Board.

We have further recognized recently, in considering the “reasons” requirement in connection with review of an ROTC cadet’s application for discharge as a conscientious objector, that the requirement is not satisfied by a board’s mere conclusory statements of insincerity. The facts or factors relied upon by the board must be stated. United States ex rel. Checkman v. Laird, 469 F.2d 773, 785 (2d Cir. 1972); see United States v. Andersen, 447 F.2d 1063, 1065 (9th Cir. 1971). Otherwise the reviewing board cannot know whether the local board based its decision on valid or invalid grounds. Furthermore, in view of our recent holding that the appeals board may affirm the findings of the subordinate board without restatement of the reasons for its decision, United States v. Orr, 474 F.2d 1365, 1369 (2d Cir. 1973), it becomes all the more important that the local board specify the facts forming the basis of its decision.

Application of these principles here mandates a reversal. The Local Board concluded summarily that it was “not convinced of the sincerity of Registrant’s claim.” In the words of the district court, the Board “indicated no specific fact or reason which led to its conclusion.” Although the Board had stated in its earlier rejection that Stewart was “not a genuine conscientious objector ... in that [his] objection is not to all wars but to the present specific war” he promptly objected to the clerk’s handwritten summary of the earlier courtesy interview, which apparently was the basis for the Board’s action, as inaccurate. He further affirmed in person and in writing that he at no time stated that he would have fought in World War II. He contended that what he had said was that, assuming he had lived in the days of World War II (which he had not) and had been raised in the same beliefs as people in that era, he probably would have signed up, but that he had been raised in a different era, with a different perspective on war and a different understanding of war’s influences and, as a consequence, was sincerely opposed to war generally.

Confronted with this issue as to what had been said by Stewart, the Board owed a duty to be more specific in stating the reason for its action, particularly since it was now summarizing a decision based upon the interview to which Stewart was entitled as a matter of right, as distinguished from the earlier “courtesy” interview. Instead of specifying the basis of its November 18 decision, however, the Board issued a cryptic, conclusory sentence which leaves us to speculate as to the reasons for the denial of the application. Some of those possible reasons might have been valid, others invalid. The Board may have concluded, for instance, that its record of the first interview was accurate and that it did not believe Stewart’s version of his earlier oral statement to the Board or his professed opposition to all war. On the other hand, it may have decided that its clerk’s earlier longhand notes were inaccurate and that Stewart had in fact consistently maintained his objection to all wars at both hearings, but nevertheless have concluded that he should be denied conscientious objector status because of his statement that under the hypothetical conditions assumed by him, he probably would have signed up in World War II. Or the Board may have acted because it believed his profession of conscientious objection to be a recent contrivance by a “glib college kid.” If the Board had articulated any of these premises, Stewart would at least have had a chance upon administrative review to demonstrate either the falsity or the invalidity of the Board’s reasoning. In the absence of any specification by the Board of the factual basis for its decision, however, he was deprived of that opportunity.

Even assuming arguendo that the Board based its decision on the ground that Stewart was opposed to war on a selective, rather than on a general, basis we seriously question whether there is a sufficient factual basis to support that conclusion. The record reveals that Stewart repeatedly expressed himself, both before and after both interviews, as being opposed to war in any form. The view that he “would have served in a war like World War 2” appears to have been based on a misunderstanding as to the hypothetical nature of the assumptions which underlay his views with respect to that war. What he appears to have said was that if he had lived in the era of World War II (which he had not) and if he had been exposed to the same influences as had his father prior to and during that war (which he had not been) he probably would have served in World War II, just as his father had done. This frank concession is hardly inconsistent with his current opposition to all wars, including World War II if it were presently being conducted. However, since Stewart’s conviction must be reversed because of the Board's failure to state its reasons, we need not pursue the subject further except to note that the very uncertainty and speculation engendered by the Board’s cryptic disposition of the case points to the wisdom of the Supreme Court’s recent imprimatur on the rule requiring that reasons be stated for the Board’s denial of a registrant’s claim to be classified as a conscientious objector.

Stewart further urges that he was denied due process because of the Appeal Board’s failure to state the reasons for its affirmance of the local board’s I-A classification and because of the Appeal Board’s inadequate consideration of his ease. The first of these contentions has been rejected in a recent decision of this court, to which we adhere. United States v. Orr, supra. The second presents a more serious issue. The Appeal Board was required to give Stewart’s appeal such consideration as would satisfy due process requirements and permit a full and fair disposition of his contentions. Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Mintz v. Howlett, 207 F.2d 758, 762 (2d Cir. 1953). That Board’s minutes, however, reveal that in a period .of one hour on February 18, 1971, it reviewed 102 local board classifications, including that of Stewart, of which 89 were sustained and 13 were reversed. None of the six conscientious objector appeals was granted.

These facts may raise a due process question. However, since we have concluded that the conviction must be reversed for the reasons already stated, it becomes unnecessary to remand for resolution of the issue raised as to the adequacy of administrative review of Stewart’s classification. For the same reason, it is unnecessary to discuss appellant’s final argument, that the failure of the clerk of the Local Board to transmit to Board members any of appellant’s post-November 18 communications denied him due process.

The conviction is reversed and the case is remanded with directions to dismiss the indictment.

      . “I don’t know what I was thinking when I registered for the draft — maybe the approach of college was on my mind, and my father had always assured me that I would not have to go to war. However, though I am not aware of the exact timetable which brought me to this stance, I do sense a continuing logic towards it. The war in Viet Nam of course forced me to become outraged, and its existence demanded that I formulate my response. . I know I decided . . . that I somehow could not cooperate with our military effort.”

      . “The board asked registrant had any of his family been in service. Registrant said yes — his father and uncles served in the military. Also what did registrant think of World War 2, would he have served. Registrant said he could understand World War 2 but this war (Vietnam) he cannot serve. He stated that there are different ways to defend the country. He said he would serve alternate service, such as working in a hospital.”

      . “I have read my file, and the report of 'my interview indicates that I said I would have fought in World War II. At not [sic] point was I asked that question, nor did I say that. Since the decision was made on the grounds that I said something I did not say, I feel certain that there was a confusion during the interview which I would like to correct with the personal appearance.”

      . Section 101(a) (36) of Public Law 92-129, enacted September 28, 1971, and codified at 50 U,S.C. App. § 471a (b) (4) (1972 Supp.), requires that pursuant to such rules and regulations as the President may prescribe, “[i]n the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.” See 32 C.F.R. § 1623.4(c) (1972).