author:
TUTTLE, Circuit Judge:
      COLEMAN and AINSWORTH, Circuit Judges

text:
    UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. METCO INCORPORATED, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    Nos. 73-3194, 73-3291.
    United States Court of Appeals, Fifth Circuit.
    July 11, 1974.

      George C. Longshore, Birmingham, Ala., for petitioner.
    Elliott Moore, Deputy Assoc. Gen. Counsel, Peter Carre, Atty., N. L. R. B., Washington, D. C., Walter C. Phillips, Regional Director, Atlanta, Ga., for N. L. R. B. in both cases.
    Martin H. Steckel, John G. Skinner, Atlanta, Ga., for petitioner-cross respondent.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   TUTTLE, Circuit Judge:

This case is before the Court on the petition of Metco, Incorporated (Metco) to review a decision of the National Labor Relations Board (Board) finding a violation of section 8(a) (5) of the Labor Management Relations Act, 29 U.S.C.A. § 158(a)(5), and granting a cease and desist order. 205 N.L.R.B. No. 138 (1973). United Steelworkers of America, AFL-CIO (Union) also petitions for review of that portion of the Board’s order denying its request for additional “make whole” relief. The Board has filed a cross-application for enforcement of its order. This Court has jurisdiction under section 10(e) and (f) of the Act.

FACTS

Metco is a small manufacturer of steel reels and related products, located in Hartsell, Alabama. The Union filed a representation petition in August, 1972, with the. Board seeking certification as the bargaining agent of a unit of eighty-three production and maintenance employees of Metco. The Union successfully organized the employees and won the election conducted by the Board by a vote of fifty-two for, to twenty-six against, unionization.

On the basis of questionable pre-election union conduct, Metco submitted to the Board timely objections to the results of the election. The conduct attacked was that the Union had made misrepresentations in leaflets distributed to the employees on the evening before the election concerning wage rates obtained at several other plants organized by the Union and that pro-Union employees had threatened other employees with physical violence in order to coerce their support for the Union. The Regional Director conducted an administrative investigation, receiving affidavits from the company to establish the objectionable conduct. The Regional Director credited the allegations in the company’s affidavits as true, but found that while the wage rate claims were subject to different interpretations, they were not material misrepresentations; that no Union agent was implicated in the alleged threats; and that there was not an atmosphere of fear or coercion surrounding the election which would justify setting it aside. On review, the Board accepted the findings of the Regional Director and certified the Union as the exclusive bargaining agent for this unit of Metco’s employees.

Subsequently Metco refused to bargain with the Union. A section 8(a)(5), refusal to bargain, charge was filed by the Union against Metco. On the basis of the Union’s complaint and because Metco failed to offer any new or previously unavailable evidence to support its objections, the Board granted summary judgment for the Union. The Board also denied the Union’s request for additional relief.

Metco charges as error on review: (1) Failure to invalidate the election on the basis of the Union’s misrepresentations and threats; and (2) Denial of an evidentiary hearing on the claim of preelection irregularities, in violation of the Board’s rules and the due process clause of the Constitution. The Union claims error in the failure of the Board to impose a “make whole” remedy as was done in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. N. L. R. B., 145 U.S.App.D.C. 384, 449 F.2d 1046 (1971); International Union of Elec., Radio, etc. v. N. L. R. B., 138 U.S.App.D.C. 249, 426 F.2d 1243, cert. denied, Tiidee Products, Inc. v. Int. Union of Elec., Radio, etc., 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970).

THE SECTION 8(a)(5) CHARGE

In reviewing the Board’s decision in this case, we are mindful that Congress “has vested the Board with broad discretion in dealing with matters relating to representation proceedings.” N. L. R. B. v. White Knight Manufacturing Co., 474 F.2d 1064, 1067 (5th Cir. 1973). All that is required is that the Board’s findings upholding the election be supported by substantial evidence in the record. 29 U.S.C.A. § 160(f). Since a certification by the Board is not reviewable, the only manner in which Metco could challenge the election and certification was by refusing to bargain and obtaining review of the pre-election misconduct in a subsequent section 8(a)(5), unfair labor practice proceeding, which the Union would file against the company for refusing to bargain.

Misrepresentation. The Board has applied a flexible test, which has been accepted by this Court, for evaluating questionable campaign communications: “(1) whether there has been a misrepresentation of a material fact; (2) whether the misrepresentation came from a party who was in an authoritative position to know the truth or who had special knowledge of the facts; (3) whether the other party had adequate opportunity to reply and to correct the misrepresentation; and (4) whether the employees had independent knowledge of the misrepresented facts, so that they could effectively evaluate the propaganda.” N. L. R. B. v. Carlton McLendon Furniture Co., Inc., supra, 488 F.2d at 62. In the present case, the Regional Director, whose findings the Board adopted, investigated Metco’s objections, and found that although the alleged misrepresentations were “subject to differing interpretations,” they “did not constitute misrepresentation of material facts.”

The leaflets distributed by the Union contained statements concerning its negotiation efforts at three other plants located at distances far from Met-co. The claims made for gains at two plants were clearly not material misrepresentations or even false, rather merely statements strongly in the Union’s viewpoint. Part of the statement as to wage increases at the third plant were found to include both wage and fringe benefits and to be overstated by 2.8 cents. This type of campaign propaganda has been found insubstantial in other election cases. In Southwestern Portland Cement Co. v. N. L. R. B., 407 F.2d 131, 134 (5th Cir. 1969), cert. denied, 396 U.S. 820, 90 S.Ct. 59, 24 L.Ed.2d 71 (1970), the company was challenging an election lost by five votes on the basis of a Union misrepresentation understating the amount of dues. This Court explained: “The telegram in question, in essence, merely outlined the events and presented the Union’s side of the story, namely, that while the Union employees at the other plant were paying $10.50 a month, a clear distinction should be drawn between regular dues assessed on an indefinite basis and a special three-month assessment which accounted for $5.00 of the current payments at the other plants.” (Emphasis added). Likewise, in Follett Corp. v. N. L. R. B., 397 F.2d 91, 95 (7th Cir. 1968), a slight inaccuracy in a handbill asserting the wage rate obtained at a recently organized plant by the Union, hut not clarifying that it would not become effective for another month, and the misrepresentation that employees received triple time during vacation, was found inconsequential in the context of the entire election campaign. See also Anchor Manufacturing Co. v. N. L. R. B., 300 F.2d 301 (5th Cir. 1962). Finally, the margin of victory, approximately 2:1, in this case was so wide, that Metco had to show “the Union’s assertions in fact constituted an interference with a free choice of bargaining representatives,” since it did not, the Board could find that Metco failed on its burden of proof.

Coercion. In challenges to election conduct based on alleged coercion, this Court has held: “The decisive factor ... is not whether improprieties occurred during the campaign, but rather whether the challenged conduct produced such a climate of tension and coercion that the employees were effectively precluded from making a free choice. N. L. R. B. v. Singleton Packing Corp., 418 F.2d 275, 281 (5th Cir. 1969).” N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1067. This court then continued, pointing out: “The burden of proof is on the objecting party. As this Court observed in N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir. 1969):

‘This is a heavy burden; it is not met by proof of mere misrepresentations or physical threats. Rather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees’ exercise of free choice to such an extent that they materially affected the results of the election.’ ” Id.

Metco presented the affidavits of four or five employees stating that they had been threatened by Union supporters and proof that an unidentified person had broken into the plant and shot up the vending machines in the employees’ room. The Board found that the shooting incident occurred two months before, and was not related to, the election. Finally, the Board concluded that no Union agent had been implicated in the threats, nor was there evidence of a persuasive atmosphere of coercion which would necessitate setting aside the election. In addition, we point out that any influence resulting from the objectionable conduct was slight and should not upset the election, because the Union won the election by almost twice the number of votes recorded by the company. Metco did not produce affidavits attesting to threats of sufficient numbers even of actual coerced voters contrary to a voter’s choice, to otherwise produce a different election result. Rather the affidavits were submitted in an effort to prove an atmosphere of fear and coercion surrounding the election. Given the margin of victory by the Union and the fact that the Regional Director conducted the election and investigated the alleged threats, there is substantial evidence to support the Board’s conclusion that any coercion was not “of the type that would justify setting aside of the election.”

We conclude, as in White Knight Maruufacturing Co.:

“ . . . White Knight’s objections describe a series of incidents which, notwithstanding the closeness of the vote, were simply insufficient to justify setting the election aside. At the worst, these incidents amounted to nothing more serious than verbal excesses and isolated attempts to harrass non-union employees, none of which had any demonstrated influence on the outcome of the election. Indeed, whatever impact they may have had, it was far from pervasive; for by the Company’s own admission only six out of a total of 180 eligible voters were allegedly victimized. And there is no aparent indication that even any of these six were . . . unable to vote their personal preferences in the election. . . . White Knight merely failed to meet its burden of proof.” 474 F.2d at 1068.

EVIDENTIARY HEARING

The second issue raised by Met-co is whether the Board erred in not granting the company a formal hearing on its objections, either post-election or on the unfair labor practice charge. Our negative answer is predicated on our holding that completely crediting Met-go’s objections, no legal ground is established for setting aside the election; therefore, no hearing was necessary.

This Court has repeatedly faced’ the question of the granting of an evidentiary hearing on representational election challenges. To reiterate, there is no statutory requirement for a post-election evidentiary hearing in a representational proceeding. Where there has been a consent election, the Board’s rules and regulations, 29 C.F.R. § 102.-69(c) and (e), provide for an investigation by the Regional Director on the filing of objections. A hearing is provided only where the contentions “raise substantial and material factual issues.” This Court has held that this standard “is also the constitutional standard under the due process clause.” The burden is on the objecting party to present a prima facie case requiring the overturning of the election — which requires “specific evidence of specific events from or about specific people” which support assertions which, if true, would be legally sufficient to upset the election. The purpose behind the Board’s rule, a policy we wish to stress, is to avoid a protracted proceeding and eliminate unnecessary delay in certifying a bargaining representative. If a hearing were required for all objections, it would prolong labor unrest and impede collective bargaining contrary to the very purpose of the Act.

The Board’s denial of a post-election hearing was based on Metco’s failure to make a prima facie showing that the election should be overturned and, therefore, did not raise substantial material issues of fact. The Board accepted as true the affidavits concerning threats submitted by Metco, and found that they failed to demonstrate any adverse effect on the atmosphere necessary for a fair election. Likewise, the Board found no material misrepresentation in the Union’s leaflets. While the demeanor of witnesses can often aid in judging the effect of preelection conduct, given the wide margin of victory by the Union, we cannot say that the Board abused its discretion in denying an evidentiary hearing. N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1068.

Nor did the Board later err in denying a hearing and granting summary judgment on the unfair labor practice charge under section 8(a)(5). As declared in prior decisions, if a post-election hearing is not required, the Board may deny a hearing at the unfair labor practice proceeding, unless Metco could produce newly discovered evidence, offer previously unavailable evidence, or show that it was prevented in the representation proceeding from submitting relevant evidence.

UNION — “MAKE WHOLE” RELIEF

The union asked for additional “make whole” relief in the form of “at the minimum an order to bargain with respect to wages, hours of work or conditions of employment retroactively to the date of violation; and that the Employer be required to pay the wages of all the employees for periods of time spent on strike to protest the Employer’s refusal to bargain, or in the alternate, that the Employer be required to reimburse the Union for the costs and expenses of a strike called to protest the Employer’s refusal to bargain.” The request for this type of additional compensatory relief was premised on the decision by the Court of Appeals for the District of Columbia in International Union of Elec. Radio, etc. v. N. L. R. B. [Tiidee Products], supra, 426 F.2d 1243, where the company’s refusal to bargain was found “a clear and flagrant violation of the law [section 8(a)(5)]” and its objections to the representational election “patently frivolous.” 426 F.2d at 1248. The court remanded the case to the Board for consideration of relief which would “make whole” the Union, because the Board’s granting of only its traditional remedy, a cease and desist order, was not adequate enforcement of the mandate of the Act, 29 U.S.C.A. § 160(c), and, in fact, rewarded the company for its intransigence. Id.

The Board denied a “make whole” remedy in this case for the reasons explicated in Ex-Cell-O Corp., 185 N.L.R.B. 107 (1970), rev’d sub nom., International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, v. N. L. R. B., supra, 449 F.2d 1046. The Board in this three to two decision rejected Tiidee Products for two reasons. First, it obj'ected because :

“As in Quality Rubber, the Court in Tiidee Products distinguished those cases in which the employer’s failure to bargain rested on a ‘debatable question.’ With due respect for the opinion of the Court of Appeals for the District of Columbia, we cannot agree that the application of a compensatory remedy in 8(a)(5) cases can be fashioned on the subjective determination that the position of one respondent is ‘debatable’ while that of another is ‘frivolous.’ What is debatable to the Board may appear frivolous to a court, and vice versa. Thus, the debatability of the employer’s position is an 8(a)(5) ease would itself become a matter of intense litigation.”

Secondly and more importantly, the Board stressed the fact that the Tiidee Products finding that the Board could award compensatory damages by assessing the amount of benefits an employee would have received under a collective bargaining contract if the employer had^ bargained in good faith in accordance with the Act, conflicts with the statutory command of section 8(d), 29 U.S.C.A. § 158(d), as delineated in H. K. Porter Company, Inc. v. N. L. R. B., 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). Section 8(d) bars the Board or a court from ordering a party to accept a specific term in a collective bargaining contract. In other words, “by refusing to bargain, the argument runs, the employer has implicitly rejected all contract terms which would have provided increased employee benefits, and the order to pay ‘damages’ would effectively compel him to accept some or all of these terms.” Note, NLRB Power To Award Damages in Unfair Labor Practice Case, 84 Harv.L.Rev. 1670, 1687 (1971).

Since the Board undertook no analysis of the Union’s requests for a “make whole” remedy, but rejected it solely on the basis of Ex-Cell-0 Corp., it is necessary for us to reach the question of whether section 10(c) authorizes the Board to issue such relief. Relying on the rationale of, and the line of decisions flowing from, Tiidee Products, we hold that such “make whole” relief is necessary under section 10(c) for the Board to fulfill its task of devising remedies to effectuate the primary policy, collective bargaining, of the Act. In Tiidee Products the court stated:

“The ‘affirmative action’ clause of § 10(c) is not a mere charter of authority that the Board has the option to exercise or ignore. It is, as the Court has recently stated, a ‘broad command.’ N. L. R. B. v. J. H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969).
“We cannot discern, and the Board has not explained, on what basis it could or did conclude that its order under review is designed ‘to insure meaningful bargaining.’ Counsel for the Board tells us that the prospective order to bargain entered in this case is what is conventionally entered by the Board. Assuming the general validity of a purely prospective type of order, the case of brazen refusal to bargain, in violation of solemn obligations, presents special considerations. While such remedy may provide some bargaining from the date of the order’s enforcement, it operates in a real sense so as to be counter-productive, and actually to reward an employer’s refusal to bargain during the critical period following a union’s organization of his plant. The obligation of collective bargaining is the core of the Act, and the primary meanings fashioned by Congress for securing industrial peace, N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). . . . Yet a prospective-only doctrine means that an employer reaps from his violation of the law an avoidance of bargaining which he considers an economic benefit. Effective redress for a statutory wrong should both compensate the party wronged and withhold from the wrongdoer the ‘fruits of its violations.’ Montgomery Ward & Company v. N. L. R. B., 339 F.2d 889, 894 (6th Cir. 1965).” 426 F.2d at 1249.

Even the Board, itself, in Ex-Cell-0 Corp. recognized the inadequacy of its usual cease and desist order:

“We have given most serious consideration to the Trial Examiner’s recommended financial reparations Order, and are in complete agreement with his findings that current remedies of the Board designed to cure violations of section 8(a)(5) are inadequate. A mere affirmance order that an employer bargain upon request does not eradicate the effects of an unlawful delay of two or more years in fulfillment of a statutory bargaining obligation. It does not put the employees in the position of bargaining strength they would have enjoyed if their employer had immediately recognized and bargained with their chosen representative. It does not dissolve the inadvertible employee frustration or protect the Union from a loss of employee support attributable to such delay. The inadequacy of the remedy is all the more egregious where, as in the recent NLRB v. Tiidee Products, Inc., case, the court found that the employer had raised ‘frivolous’ issues in order to postpone or avoid its lawful obligation to bargain.”

The critical step in finding such affirmative remedial authority in the Board is the distinguishing of the section 8(d) prohibition, explained in Porter, against the Board’s compelling parties to agree to terms of a collective bargaining contract. While Tiidee Products adequately and thoroughly deals with this point, we wish to add some brief analysis. Assuming for discussion that section 8(d) is a valid barrier to a “make-whole” remedy, it is arguably only a prohibition to awards of compensatory damages determined by assessing what contract benefits would have been negotiated had the employer not refused to bargain in violation of section 8(a) (5). The relief subsumed under the term “make whole” is not limited, however, to this peculiar type of monetary award. In other words, the requests for reimbursement for the costs and expenses of the strike in this case, or for legal fees and expenses, or for organizing costs, when caused by the employer’s illegal refusal to bargain, cannot logically be argued to be related to section 8(d) subject matter. Therefore, there is even less supporting the Board’s refusal in this case than in Ex-Cell-0 Corp. to consider a “make whole” remedy when such elements of relief, not involving any relation to section 8(d), are requested.

Having determined that the Board impermissibly failed to consider a “make whole” remedy, we find, however, no necessity for remanding to the Board. Metco’s conduct is not so flagrant as to require the type of “Make whole” remedy sought in this case. In Tiidee Products the petition for review was based on objections “patently frivolous.” The line of cases stemming from Tiidee Products has formulated that this type of remedy is not appropriate where the legality of an employer’s objections and refusal to bargain are premised on a factually debatable question and where the litigation was not engaged in to delay collective bargaining. This further development in the Tiidee Products doctrine is dictated by the tension between the granting of a review of representational election objections and remedying the illegal refusals to bargain. As pointed out earlier, the only manner in which an employer can obtain review of the Board’s determination upholding a challenged election is by committing an unfair labor practice under section 8(a)(5), refusing to bargain, and submitting election objections to the Board and the court on review of the unfair labor practice. The possibility of a more complete remedy for refusal to bargain cases where an employer’s contentions are frivolous, should deter employers, who before had nothing to lose and much to, gain by delaying collective bargaining, while leaving more time for the Board and the courts to consider meritorious petitions for review. Cf. IUE v. N. L. R. B., supra, 426 F.2d at 1249-1250.

In Tiidee Products and four other cases which the Board decided prior to the issuance of the Tiidee Products opinion, the Court of Appeals for the District of Columbia, itself, evaluated the refusal to bargain situations and remanded to the Board only if the employer’s conduct was flagrant. The court weighed such factors as the merit of the employer’s objections to the representational election, the overall conduct of the employer during the pre-election organizing efforts by the Union such as other unfair labor practices committed by the employer during this period, prior anti-Union animus as detailed by a history of unfair labor practices, the motive of an employer in refusing to bargain, and the amount of harm inflicted upon the Union. In this case, while the claimed misrepresentation borders on being spurious, the contention that the threats may have created an atmosphere of fear at the election were not so frivolous as to require the Board to fashion a “make whole” remedy. Nor was there any indication that Metco was attempting unnecessarily to delay resolution of the election dispute by its petition for review in this case.

The Board’s order will be enforced.

COLEMAN and AINSWORTH, Circuit Judges

(specially concurring).

We concur in the result and in all of the excellent opinion prepared by Judge Tuttle except that portion which deals with the power of the Board to enter a “make whole” order. Since this is not the type of case which, in any event, would justify such an order, we intimate no opinion on that subject.

      . This provision states :
      “(a) It shall be an unfair labor practice for an employer—
      “(5) to refuse to bargain collectively with the representative of his employees, subject to the provisions of section 159(a) of this title.”

      . Expedited elections are expressly authorized in section 9 (c) (4) of the Act. A consent election under the rules of the Board, 29 C.F.R. § 102.69, was conducted in this case. For an explanation of expedited elections see N. L. R. B. v. Chelsea Clock Co., 411 F.2d 189, 191-192 (1st Cir. 1969).

      . See N. L. R. B. v. Carlton McLendon Furniture Co., 488 F.2d 58, 61 (5th Cir. 1974); N. L. R. B. v. Muscogee Lumber Co., Inc., 473 F.2d 1364, 1366 (5th Cir. 1973); N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 29-30 (5th Cir. 1969). Cf. N. L. R. B. v. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946).

      . Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1952); N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1067 (5th Cir. 1973).

      . American Federation of Labor v. N. L. R. B., 308 U.S. 401, 408-412, 60 S.Ct. 300, 84 L.Ed. 347 (1940). See the cases cited in N. L. R. B. v. Carlton McLendon Furniture Co., Inc., supra, 488 F.2d at 61, n. 3.

      . Hollywood Ceramics Co., Inc., 140 N. L. R. B. 221, 224 (1962).

      . N. L. R. B. v. Muscogee Lumber Co., supra, 473 F.2d at 1368; N. L. R. B. v. Cactus Drilling Corp., 455 F.2d 871, 874 (5th Cir. 1972); N. L. R. B. v. Southern Foods, Inc., 434 F.2d 717, 720 (5th Cir. 1970). Cf. Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).

      . See Follett Corp. v. N. L. R. B. supra, 397 F.2d at 95 n. 3. See note 11, infra.

      . See Southwestern Portland Cement Co. v. N. L. R. B., supra, 407 F.2d at 134; Shoreline Enterprises of America v. N. L. R. B., 262 F.2d 933, 942 (5th Cir. 1959).
      The present case is distinguishable from our prior decision in Walled Lake Door Co. v. N. L. R. B., 472 F.2d 1010 (5th Cir. 1973). The Union in that ease had mailed a letter to employees on the eve of the election which falsely asserted successful organizing efforts at two other of the company’s plants. This Court stressed that the record’s revelation of the actual influence of the misrepresentation on a number of employees when coupled with the closeness of the election vote, 26-22, required that the election be overturned. In this case, there is a small overstatement of the wages at another plant, but no material misrepresentation, and the Union received a vote approximately twice the number cast for the company. See note 11, infra.

      . While the absence of the Union agency should not be given conclusive effect, it is a factor which can properly be given weight by the Board. N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1067, n. 3; N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 32, n. 5; Manning, Maxwell & Moore, Inc. v. N. L. R. B., 324 F.2d 857 (5th Cir. 1963). This is derived from the fact that “where the challenged conduct is not attributable to either of the parties it can be given less weight than if the conduct were attributable to the parties themselves. Bush Hog v. N. L. R. B., 420 F.2d 1266, 1269 (5th Cir. 1969); N. L. R. B. v. Staub Cleaners, Inc., 418 F.2d 1086, 1088 (2d Cir. 1969).” N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1067, n. 3.

      . If the vote margin in a representational election is very narrow, minor violations should be more closely scrutinized. In other words, when the apparent degree and multitude of the violations are small and the margin of the vote is wide, the less merit inheres in a petition for overturning the Board’s decision upholding an election or denying an evidentiary hearing. N. L. R. B. v. Carlton McLendon Furniture Co., supra, 488 F.2d at 64; Walled Lake Door Co. v. N. L. R. B., supra, 472 F.2d at 1013, 1014; N. L. R. B. v. Overland Hauling, 461 F.2d 944, 946, 947 (5th Cir. 1972); N. L. R. B. v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir. 1972); N. L. R. B. v. Singleton Packing Co., supra, 418 F.2d at 282, n. 5; Monroe Manufacturing Co. v. N. L. R. B., 403 F.2d 197, 201 (5th Cir. 1968); N. L. R. B. v. Bata Shoe Co., 377 F.2d 821, 831, n. 18 (4th Cir. 1967). Any analysis based on the numerical margin of the vote must of course take into consideration that the misrepresentations or coercion was so successful as to cause a wide margin of victory. But such persuasive influence would appear to be more capable of proof because of its overwhelming nature.

      . This Court and others have overturned Board decisions on the validity of an election or the necessity of an evidentiary hearing in narrowly won elections where the number of voters threatened corresponds to the number of votes sufficient to affect the result of the election. N. L. R. B. v. Medical Ancillary Services, 478 F.2d 96 (6th Cir. 1973) (51-49 vote); Monroe Manufacturing Co. v. N. L. R. B., supra, 403 F.2d at 201 (7-5 vote); N. L. R. B. v. Joclin Manufacturing Co., 314 F.2d 627 (2d Cir. 1963) (17-14 vote, with 9 challenged votes).

      . N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1067-1068; N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 32; Manning, Maxwell & Moore, Inc. v. N. L. R. B., supra, 324 F.2d 857; Shoreline Enterprises of America v. N. L. R. B., supra, 262 F.2d at 942.

        The cases cited and relied on involved similar situations where threats of physical violence were committed but the election was allowed to stand. Moreover, in White Knight Manufacturing Go., Shoreline Enterprises, and Manning, Maxwell & Moore this Court upheld the elections even though the vote margin was narrow.

      . N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 33; N. L. R. B. v. Crest Leather Manufacturing Corp., 414 F.2d 421, 423 (5th Cir. 1969); N. L. R. B. v. Capitan Drilling Co., 408 F.2d 676 (5th Cir. 1969); N. L. R. B. v. Smith Industries, 403 F.2d 889, 892 (5th Cir. 1968); N. L. R. B. v. Bata Shoe Co., supra, 377 F.2d at 826; N. L. R. B. v. Air Control Products of St. Petersburg, 335 F.2d 245, 250 (5th Cir. 1964).

      . N. L. R. B. v. Smith Industries, Inc., supra, 403 F.2d at 892. See N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1068; N. L. R. B. v. Singleton Packing Corp., supra, 418 F.2d at 280.

      . N. L. R. B. v. Carlton McLendon Furniture Co., Inc., supra, 488 F.2d at 61; N. L. R. B. v. Medical Ancillary Services, Inc., supra, 478 F.2d at 98-99; N. L. R. B. v. White Knight Manufacturing Co., supra, 474 F.2d at 1068; Amalgamated Clothing Workers of America v. N. L. R. B., 137 U.S.App.D.C. 330, 424 F.2d 818, 828-829 (1970); N. L. R. B. v. Singleton Packing Corp., supra, 418 F.2d at 280; N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 32-33; N. L. R. B. v. Tennessee Packers, Inc., 379 F.2d 172, 177-180 (6th Cir. 1967); N. L. R. B. v. O. K. Van Storage, Inc., 297 F.2d 74 (5th Cir. 1961).

      . N. L. R. B. v. Medical Ancillary Services, Inc., supra, 478 F.2d at 98-99; Amalgamated Clothing Workers of America v. N. L. R. B., supra, 424 F.2d at 828-829; N. L. R. B. v. Singleton Packing Corp., supra, 418 F.2d at 280; N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 32-33; N. L. R. B. v. Tennessee Packers, Inc., supra, 379 F.2d at 177-180; N. L. R. B. v. O. K. Van Storage, Inc., supra, 297 F.2d 74.

      . This Court’s recent decision in N. L. R. B. v. Carlton McLendon Furniture Co., supra, 488 F.2d at 62-63, where the election was upheld but an evidentiary hearing ordered, is distinguishable from the present case. The handbill distributed, on the eve of the election in that case misrepresented the fact that the Union had been successful in an election conducted at a nearby plant. Tliis was material because both plants were subject to a joint organizing campaign by the Union, which knew that the election results were still uncertain at the time the handbill was distributed. There was also objectionable conduct at the election by a Union observer. Moreover, the vote margin in that case was narrow, 41 votes cast for the Union, 38 votes against, and 13 challenged ballots.

      . Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 146-163, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); Amalgamated Clothing Workers of America v. N. L. R. B., supra, 424 F.2d at 828-829; N. L. R. B. v. Crest Leather Manufacturing Co., supra, 414 F.2d at 423; N. L. R. B. v. Tennessee Packers, Inc., supra, 379 F.2d at 177-180.

      . The pertinent part of this provision requires that the Board “issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action . . . , as will effectuate the policies of this subchapter.” (Emphasis added).

      . In reversing Ex-Cello-0 Corp. and commenting specifically on this language, the Court of Appeals for the District of Columbia responded:
      “It is precisely this determination which Tiidee Products — I approves. ...” 449 E.2d at 1050.

      . The pertinent language in this provision states: “For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

      . Food Store Employees’ Union, Local 347, Amalgamated Meat Cutters v. N. L. R. B., 155 U.S.App.D.C. 101, 476 F.2d 546 (1973); Retail Clerks’ Union, Local 1401 v. N. L. R. B., 149 U.S.App.D.C. 370, 463 F.2d 316 (1972); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. N. L. R. B., supra, 449 F.2d 1050; Southwest Regional Joint Board, Amalgamated Clothing Workers v. N. L. R. B., 142 U.S.App.D.C. 337, 441 F.2d 1027 (1970); I. U. E. v. N. L. R. B., 142 U.S.App.D.C. 270, 440 F.2d 298 (1970); Food Store Employees’ Union, Local 347, Amalgamated Meat Cutters v. N. L. R. B., 139 U.S.App.D.C. 383, 433 F.2d 541 (1970); United Steelworkers of America v. N. L. R. B., 139 U.S.App.D.C. 146, 430 F.2d 519 (1970); I. U. E. v. N. L. R. B. [Tiidee Products], supra, 426 F.2d 1243.
      While both the Courts of Appeal for the Second Circuit and the Ninth Circuit have had the question raised, neither has readied it. Culinary Alliance and Bartenders’ Union, Local 703 v. N. L. R. B., 488 F.2d 664 (9th Cir. 1973); Lipman Motors, Inc. v. N. L. R. B., 451 F.2d 823, 828-29 (2d Cir. 1971). This Court took the opportunity to comment on “make whole” relief in Amalgamated Clothing Workers of America v. N. L. R. B., 491 F.2d 595, 597 n. 1 (5th Cir. 1974), and approved it when granted in the appropriate circumstances — “where the Company’s refusal to bargain is palpably frivolous in nature, and designed merely to delay the inevitable results of the Union’s election victory.”

      . The Court derived its primary support for Tiidee Products from the Supreme Court decision in Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), and our decision in N. L. R. B. v. Mooney Aircraft, Inc., 375 F.2d 402 (5th Cir.), cert. denied, 389 U.S. 859, 88 S.Ct. 104, 19 L.Ed.2d 125 (1967).

      . The compensatory relief issue has engendered a great deal of legal commentary; for further analysis see, e. g., Note, NLRB Power to Award Damages in an Unfair Labor Practice Case, 84 Harv.L.Rev. 1670 (1971); St. Antoine, A Touchstone for Labor Remedies, 14 Wayne L.Rev. 1039 (1968); Note, An Assessment of the Proposed “Make-Whole” Remedy in Refusal-to-Bargain Cases, 67 Mich.L.Rev. 374 (1968).

      . The court in Tiidee Products explained: “. . . We in no way suggest either that the Board can compel agreement or that the make-whole remedy is appropriate under circumstances in which the parties would have been unable to reach agreement by themselves. Quite the contrary, we have specifically limited the scope of our remand first, to consideration of past damages, not to compulsion of a future contract term, and second, to relate to damages based upon a determination of what the parties themselves would have agreed to if they had engaged in the kind of bargaining process required by the Act. It is not within the scope of our remand for the Board to measure the amount of damages by reference to any contract term which could have been brought about only through a mandate to the employer not merely to engage in the process of collective bargaining but also to agree on a contract provision.” 426 F.2d at 1253.

      . See Food Store Employees’ Union, Local 347, Amalgamated Meat Cutters v. N. L. R. B., supra, 476 F.2d at 550-553, 433 F.2d at 543 n. 7.

      . Id.

      . See Retail Clerks’ Union, Local 1401 v. N. L. R. B., supra, 463 F.2d at 325; Southwest Regional Joint Board, Amalgamated Clothing Workers v. N. L. R. B., supra, 441 F.2d at 1035-36; United Steelworkers of America v. N. L. R. B., supra, 430 F.2d at 521-522.

      . International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. N. L. R. B., supra, 449 F.2d at 1050 n. 21.

      . In Tiidee Products, supra, 426 F.2d 1253, the employer had violated section 8(a)(1), (3), and (5). The employer had engaged in discriminatory layoffs and discharge, and imposed additional production quotas on pro-Union employees. In addition there were coercive actions by supervisory personnel and threats by the president to close the plants. In Tiidee Products — II, supra, 440 F.2d at 298-299, the court considered a “make whole” remedy appropriate because in addition to the past history of bad conduct by the employer in Tiidee Products — I, there were now additional violations of section 8(a)(1), (3), (4), and (5). And in Food Store Employees’ Union, Local 347, Amalgamated Meat Cutters v. N. L. R. B., supra, 433 F.2d at 542-543, the employer’s history of nine unfair labor practice violations at other stores coupled with the finding by the Board that the employer’s misconduct was flagrant and his refusal to bargain was in bad faith, was sufficient to dictate a “make whole” remedy. See Food Stores Employees’ Union, Local 347, Amalgamated Meat Cutters v. N. L. R. B., supra, 476 F.2d at 550-554.

      . The misrepresentation asserted in this ease should be compared to that put forward by the employer in Tiidee Products, supra, 426 F.2d at 1248, n. 5.

      . While we have examined the employer’s conduct and objections in this case to determine the appropriateness of a “make whole” remedy, the Board, in future cases, should utilize its remedial discretion and expertise to resolve this question. Fibreboard Paper Products Corp. v. N. L. R. B., supra, 379 U.S. at 216, 85 S.Ct. 398; Consolo v. F. M. C., 383 U.S. 607, 620-621, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).
      The Board in granting affirmative compensatory relief is equipped with a broad range of remedies. Flexibility should be used in adjusting relief to the particular facts of each situation. An all-or-nothing rule is not ordinarily appropriate, since there are degress of flagrancy. Food Store Employees’ Union, Local No. 347, Amalgamated Meat Cutters v. N. L. R. B., supra, 476 F.2d at 554 n. 13. The Board’s determination will of course be accorded the usual latitude given to its exercise of remedial discretion.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Edward MASPERO, Frank Mejia Ruiz, and Roger Pacheco, Defendants-Appellants.
    No. 73-2741.
    United States Court of Appeals, Fifth Circuit.
    July 15, 1974.
    Rehearings Denied Sept. 12, 1974.

      Anthony Nicholas, C. Thomas Behrman, San Antonio, Tex., for defendants-appellants.
    William S. Sessions, U. S. Atty., Joel D. Conant, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

The appellants were convicted under two counts relating to 2,900 pounds of marijuana, Count One, conspiracy to import and to possess with intent to distribute, and Count Four, possession with intent to distribute. They question the validity of searches of the trailer in which the marijuana was found and the sufficiency of the evidence to support their convictions.

I. The searches.

There was evidence before the court when it denied motions to suppress on the basis of which it could conclude that the following fact situation existed. At approximately 1:30 p. m. a BNDD agent in San Antonio, Texas, received information from a confidential informant of proven prior reliability that a tractor-trailer rig had come in from Mexico that day with 2,300 pounds of marijuana in a false compartment underneath the floor of the trailer. The informant supplied the license number of the trailer and described markings on the tractor. He told the agent that the rig was parked at the location of a truck refrigeration sales and service company in San Antonio and that it was to be driven a short distance out of the city and unloaded. The informant then went with that agent and other agents to the refrigeration company and at approximately 1:45 pointed out the rig parked in a fenced compound. The agents wanted to determine the license number on the tractor and find out if there was a back exit to the fenced area. Afraid to walk in, they drove through the area in a car but could not see the truck license. They then determined to try to get closer to the rig through the owner of the refrigeration company. They ascertained by telephone that he was a person of good reputation and with no narcotics record. They talked to him and told him the situation. The owner related that work was to be performed on the refrigeration unit of the trailer, and after investigating, he told agents that the rig was “ready to roll” and should be leaving at any time. This information was imparted around 2:45 or 3:00 p. m. The owner suggested that the agents pose as interested buyers of refrigerated trailers and in that guise examine the rig. The work to be done necessitated movement of workmen in and out of the trailer. The owner and two agents inspected two or three other units, then approached the rig in question, and the owner opened the trailer doors, which were secured by a hasp but not locked. This occurred around 2:45-3:00 p. m. and after the agents were told that the rig might depart at any time. Without entering, both agents saw marijuana seeds on the floor, described as “several handfuls” and “all over the floor of the trailer.” The agents climbed in, remained a short while, and climbed out. One of the agents could smell the odor of marijuana.

There was adequate probable cause to believe that the trailer was being used to transport marijuana. Indeed appellants do not contend otherwise but rather focus upon alleged absencé of exigent circumstances. The time span from identification of the rig at the refrigeration company to the actual entry into the trailer was approximately an hour to an hour and 15 minutes. By the time the entry was made there were 8 to 10 agents in the vicinity working on the case. In addition to their actions already described, they were doing a number of things — checking the license numbers of cars parked in the vicinity and attempting to determine if the persons in whose names they were registered had narcotics records, tailing cars as they left the scene, following on foot persons leaving the area — all for the purpose of trying to determine if there was either a buyer or a seller of the marijuana in the vicinity.

It would have taken approximately two hours for an agent on the scene to drive to the federal courthouse, obtain a search warrant and return, driving time alone requiring approximately 30 minutes.

The foregoing evidence, especially the information imparted to the agents that departure of the tractor-trailer rig could be imminent, authorized them to enter the trailer. The search was valid. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Although not actually upon the open road when searched, the truck was in a semi-public place and had easy and immediate access to the road. Thus it clearly was not immobilized like the car in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It was not merely potentially moveable; there was a real possibility of its moving at any time. See Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 842-843 (1974).

As it turned out the rig did not depart the refrigeration company area immediately. During the afternoon its driver, Victoriano Compean left several times and was picked up by car and brought back. Around 5:45 he drove the rig out of the fenced compound and parked it a short distance away. He reentered the compound on foot, waited there, and received a phone call. Around 7:30, when dark was beginning to fall, he got back in the truck and drove off. This after-search span of time does not affect the validity of what had been done at approximately 2:45 to 3:00 p. m. pursuant to the exigencies then existent. Nor does the fact that approximately an hour elapsed before the officers became aware of the exigency of possible immediate departure invalidate the action which they took when they did become aware.

When the rig departed agents tailed it in two cars. Shortly before that time they had been notified by the informant that the rig would be met by a pickup truck which would precede it to a location in South San Antonio where the marijuana was to be unloaded. The information turned out to be correct. The rig, driven by Compean, met a pickup truck. A man variously identified as David Maspero or as Frank Ruiz exited the pickup and entered the tractor, and the two units proceeded with the pickup in front. The pickup turned off the road and entered the parking area of a mission. It executed a turn, and its lights swept the street which it had just departed and were then turned off. The tractor-trailer rig continued, and the pickup pulled back to the street and fell into line behind the tailing cars. The rig turned into the driveway of the residence of David Maspero, located on a dirt road in a semi-urban area on the outskirts of the city. The pickup went past the residence, made a U-turn and then headed back in the direction from which it had come. Before it again reached the Maspero home agents stopped it and arrested the two occupants, Roger Pacheco and Raul Vasquez-Villalobos. One of the tailing units drove on to the Maspero driveway where the agents observed three persons in the vicinity of the stopped rig — David Maspero, Frank Ruiz and Roberto VasquezVillalobos. The agents approached, calling out that they were federal officers. Maspero ran toward the rear of the house, encountered a fence, stopped, and then surrendered. Ruiz reached for his waistband, an agent fired a warning shot, and Ruiz then raised his hands. Subsequently it was found that he was armed. Roberto Vasquez-Villalobos surrendered without opposition. Compean had remained in the cab of the tractor. These events occurred around 7:30, at which time it was entirely dark.

Around 8:00 p. m. agents entered the trailer, seized the marijuana seeds previously observed, and seized the rig as well. One wheel of the tractor had crushed in the septic tank system of the Maspero home, but the trailer was extricated and an agent drove the rig to the San Antonio office of the BNDD, arriving between 9:30 and 9:45. There a thorough search was made, and the informant’s tip about a hidden compartment under the floor of the trailer proved correct. Unable to open the compartment by removing the bolts in the floor, agents forced it open with a crowbar. There they discovered 2,900 pounds of marijuana in brick form.

The seizure of the marijuana at the Maspero home and the seizure of the trailer and its subsequent search at the BNDD office were valid. The agents were armed not merely with probable cause but with certainty, based on the earlier search at the refrigeration company, that the truck was carrying contraband. See Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Chambers v. Maroney, supra, 399 U.S. at 52 & n. 10, 90 S.Ct. at 1981, 26 L.Ed.2d at 428-429; Carlton v. Estelle, 480 F.2d 759 (CA5, 1973); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. at 844-845.

II. Sufficiency of the evidence.

Motions for judgment of acquittal were properly made and were denied.

The following is the pertinent testimony of Compean. On instructions from his employer, Raul Vasquez-Villalobos, he brought the rig from Mexico to the refrigeration company in San Antonio for repairs on the refrigeration unit. The tractor belonged to Raul and bore his initials on the side. While at the refrigeration company Compean received two phone calls from Raul with instructions to bring back from San Antonio some automobile motors and instructing him when and where to meet a pickup truck which would lead him to where the motors were located. The rendezvous took place as Compean had been told. A person got out of the pickup truck and got in the tractor with him and gave him directions. Compean made an uncertain identification of this person as Ruiz. Observing agents identified the person who entered as Maspero and also testified that Maspero alighted from the tractor at the residence. As the truck pulled in to the Maspero drive Roberto Vasquez-Villalobos directed Compean where to park.

Maspero testified as follows. He was at home during the entire day, suffering from a back injury which had laid him up for 10 or 15 days. The two junked automobiles and one auto motor located on his premises had been placed there with his permission by Ruiz two or three months earlier, and Ruiz had paid him for allowing them to be kept there. He had known Ruiz two or three years. During the afternoon Ruiz and two other men (who were not introduced to Maspero but later became known to him as the Vasquez-Villalobos brothers) had come to the Maspero home in Ruiz’s car, looked at the wrecked autos, and departed, saying they would return “directly.” They did return, this time in a pickup truck driven by Pacheco. Ruiz said that he had had ear trouble and had flagged down Pacheco, who had given him and the two brothers a ride to the Maspero home. Ruiz stated that he was going to get Pacheco to give him another ride from the Maspero home to get a truck to move the wrecked cars. Not all the men could fit into the pickup, so Ruiz, Pacheco and Raul departed, leaving Roberto behind in Maspero’s front yard. Thereafter the tractor-trailer rig came and pulled into the yard, followed almost immediately by shouting federal officers. Maspero denied having left the premises and denied being the person who exited the pickup and entered the tractor at the rendezvous.

Ruiz testified consistently with Maspero, confirming that he was acquainted with Maspero and had placed the cars and motor at Maspero’s home and had paid him a few dollars for the privilege of putting them there. He stated that during the afternoon in question he had by chance encountered in San Antonio the Vasquez-Villalobos brothers, previously unknown to him, when they asked him for directions about the location of a street. In the ensuing conversation Ruiz brought up the wrecked cars and motor and was able to interest the men in purchasing them, whereupon the three drove to the Maspero home, examined the items and agreed on the terms of a purchase ($45 for one car, $25 for the other, $17 for the motor).

Pacheco’s version was that while en route to Maspero’s home to check on game roosters he was flagged down by Ruiz whose car was disabled, and he gave Ruiz and the two men with him a ride to Maspero’s. The men with Ruiz looked at the wrecked cars, and Ruiz asked him to give them a ride to meet a truck that was to come after the cars and motor. He explained his conduct at the mission on the ground his lights failed and he had to leave the road and get his lights back in operation and stay out of the way of the rig, after which he fell in line behind a tailing car, thinking it was the car of a friend.

The evidence was sufficient under the conspiracy count. As to Ruiz: he had met with the Vasquez-Villalobos brothers and twice accompanied them or brought them to Maspero’s home; the jury could conclude' that he was present when the tractor-trailer rig arrived; he was armed; he arranged for Pacheco to go in the pickup truck to the rendezvous. The jury could, and obviously did, reject the story concerning purchase of the two cars and the motor. There was no lift or other gear by means of which they could be maneuvered into the trailer. The foreman of the refrigeration company testified that transporting the autos and motor in the insulated trailer would punch holes in its walls and damage its insulating qualities. Finally, the story of a chance meeting with a Mexican millionaire resulting in a tractor-trailer unit and driver being held up for several hours (until dark) to pick up junked cars worth less than $100 is, to say the least, not very persuasive. And, finally, when arrested Ruiz gave a false statement to officers, the untruth of which he acknowledged at trial.

As to Maspero: the theory of insufficient evidence rests in large part on his claim that he did not flee when the officers approached and was not the person who entered the tractor and guided Compean to the residence. These were jury issues.

Pacheco’s nexus is more tenuous. But his activities which we have described, plus the fact that he made an admittedly false statement when arrested, were enough.

On the possession count, the evidence was sufficient as to Pacheco and Maspero. Possession can be constructive as well as actual. The hallmark of constructive possession is some measure of dominion and control over the contraband. Dominion and control can be either exclusive or shared. See United States v. Virciglio, 441 F.2d 1295 (CA5, 1971); Jasso v. United States, 290 F.2d 671 (CA5, 1961).

The jury was entitled to place Maspero in the cab of the tractor-trailer and to infer that he had enough control over its progression and destination to constitute constructive possession. By the same token, Pacheco, as driver of the pickup truck, inferably acted as a guide directing the rig to its intended destination and thus shared dominion and control over the marijuana shipment, making him a constructive possessor.

We reach a different conclusion with respect to Ruiz. He was present in the driveway of the Maspero home when the tractor-trailer pulled in. But mere presence in the area of contraband or awareness of its location is not sufficient to establish possession. See United States v. Stephenson, 474 F.2d 1353 (CA5, 1973). Clearly Ruiz was not in actual possession and there was no evidence that he possessed such shared or exclusive dominion and control over it as to constitute constructive possession. There is no contention and no evidence that those who did possess the marijuana acted as agents of Ruiz as in United States v. Hernandez, 441 F.2d 157 (CA5, 1971). Finally, although Ruiz was indicted under 18 U.S.C. § 2 for aiding and abetting the 21 U.S.C. § 841 offense, the jury was not instructed on aiding and abetting and thus his conviction cannot be sustained upon that theory. We conclude that his motion for judgment of acquittal on the possession count should have been granted.

Affirmed as to appellants Maspero and Pacheco. With respect to appellant Ruiz, the conviction under Count One is affirmed and the conviction under Count Four is reversed.

      . Two other defendants, Raul and Roberto Vasquez-Villalobos, brothers, were fugitives at the time of trial. Both were Mexican nationals. Raul was identified as a millionaire owner of a Mexican trucking operation, Roberto as a Mexican customs officer.

      . We need not consider whether the owner of the refrigeration company could consent to the search, and we assume that all appellants had standing to question the validity of the search.

      . Since appellants received consecutive sentences for conspiracy and for tlie substantive offense of possession with intent to sell, the concurrent sentence doctrine does not relieve us of the duty to consider the sufficiency of the evidence supporting the possession conviction.

      . Assuming but not deciding that Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), remains viable and would otherwise be apjjlicable in this case, Ruiz’s possession conviction cannot be sustained upon a Pinkerton theory, as the jury was not charged on that theory. See United States v. Apollo, 5 Cir., 476 F.2d 156, 162 n. 5. On the question of Pinkerton’s applicability cf. Fitzpatrick v. United States, 410 F.2d 513, 517 (CA5, 1969); Smith v. United States, 385 F.2d 34, 39 & n. 17 (CA5, 1967); Hernandez v. United States, 300 F.2d 114 (CA9, 1962).


author: KRAFT, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Michael FALCO, Defendant-Appellant.
    No. 73-3681.
    United States Court of Appeals, Fifth Circuit.
    July 22, 1974.

      Max Kogen, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Marshall Tamor Golding, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   KRAFT, District Judge.

Appellant, James Michael Falco (Falco), was indicted on June 13, 1972 under No. 72-450-CR-PF, together with Ettore Coco (Coco) and Louis Nakaladski (Nakaladski). On September 4, 1973, Falco was again indicted with the same co-defendants under No. 73-636-CR-PF.

The earlier indictment embodied eight counts which, insofar as here relevant, may be briefly summarized:

Count 1. Conspiracy by the defendants and other persons unknown to the Grand Jury to obstruct, etc., interstate commerce by extortion, etc. in violatioi of 18 U.S.C. § 1951.

Count 2. Obstruction, etc., of interstate commerce by defendants by extortion, etc., from Joel Whitice (Whitice). 18 U.S.C. § 1951.

Count 3. Obstruction, etc., of interstate commerce by Coco and Falco by extortion, etc., from Richard Besóla (Besola). 18 U.S.C. § 1951.

Count 4. Conspiracy by defendants and other persons unknown to the Grand Jury to make extortionate extensions of credit, etc. in violation of 18 U.S.C. § 892.

Count 5. Conspiracy by defendants and other p&rsons unknown to the Grand Jury to use extortionate means, etc., to collect and attempt to collect extensions of credit. 18 U.S.C. § 894.

Count 6. Extortionate extensions of credit, etc. by the defendants to Whitice. 18 U.S.C. § 892.

Count 7. Use of extortionate means by the defendants to collect and to attempt to collect from Whitice. 18 U.S. C. § 894.

Count 8. Use of extortionate means by Coco and Falco to collect and to attempt to collect from Besóla. 18 U.S.C. § 894.

The later indictment, in a single count, charged the defendants with use of extortionate means to collect and to attempt to collect from Martin Davidow (Davidow). 18 U.S.C. § 894.

Because Falco was then unavailable, Coco and Nakaladski were earlier tried together on the eight-count indictment. Both were acquitted on Count 1 and Coco was acquitted on Count 3. Both were convicted and sentenced on all other counts and, on appeal, their convictions were affirmed. United States v. Nakaladski, 5 Cir. 1973, 481 F.2d 289, cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469.

At his later trial on both indictments, Falco was convicted and sentenced on all counts. This appeal followed.

Falco’s first contention is that the prior acquittal of Coco and Nakaladski on Count 1 of No. 72-450 barred further prosecution of Falco on this conspiracy charge, and that the denial of his motion to dismiss was error. The essence of his argument is that, since conspiracy requires the participation of two or more persons, the acquittal of the other two conspirators named in Count 1 of the indictment renders his conviction as the third named conspirator impossible. Appellant completely ignores the inclusion among the conspirators of “other persons to the Grand Jury unknown”.

The earlier acquittal of Coco and Nakaladski did not bar the government, under the language of Count 1, from undertaking to prove the conspiracy alleged between Falco and the person or persons whose identity was unknown to the Grand Jury. Falco’s motion to dismiss was properly denied. Rogers v. United States, 340 U.S. 367, 375, 71 S. Ct. 438, 95 L.Ed. 344; United States v. Cabrera, 5 Cir. 1971, 447 F.2d 956.

Appellant, neither in his brief nor oral argument, appears to have challenged the sufficiency of the evidence to sustain the conviction on Count 1 and appellee appears to have interwoven the questions of the sufficiency of Count 1, under attack by appellant’s motion to dismiss, and the sufficiency of the evidence to sustain it. Our review of the evidence satisfies us that it was sufficient to support the conviction on this count.

Falco’s second contention is that the denial of his motion to dismiss Count 1 so tainted his trial on all the remaining charges as to amount to a denial of due " process, essentially because of the admission of evidence, which, he asserts, would otherwise have been inadmissible. This argument, which omits mention of the two other conspiracy charges (Counts 4 and 5), is without merit in any event, because the motion to dismiss was rightly denied.

Appellant’s next challenge is to the sufficiency of the evidence to sustain his conviction upon the single count of No. 73-636, urging that the evidence disclosed that only Nakaladski had loaned to and collected from Davidow. Again, Falco disregards the conspiracy charges in Counts 4 and 5, and the evidence adduced in support of those charges, that he, Coco and Nakaladski conspired to, and acting concertedly did, make extortionate extensions of credit and use extortionate means to collect and to attempt to collect such extensions of credit. Considering almost the same testimony of Goodman and Davidow, this Court said in United States v. Nakaladski, supra, at 296:

“The challenged testimony illuminated the nature of the conspiracy and established that appellants were not merely fringe associates in the conspiracy, but rather intended to participate actively in that conspiracy. Thus the . . . testimony was relevant and admissible to show: . (3) the existence of a general conspiracy of which the conspiratorial and substantive offenses involving Whitice and Besóla were integral parts; . .

To the latter clause we need only now add the name of Davidow, since the single count indictment naming him as a victim was returned after the convictions of Coco and Nakaladski. Falco, as a party to a continuing conspiracy, is accountable for the substantive offense committed by Nakaladski, a co-conspirator, in furtherance of the conspiracy, even though Falco did not directly participate in the substantive offense. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

Appellant’s further complaint that the trial judge erred in admitting hearsay evidence, because No. 73-636 charged only a substantive offense, is devoid of merit. The substantive offense charged was in furtherance of and one of the objectives of the conspiracy.

We reject, as baseless, appellant’s final contention that he is entitled to a new trial, because of one statement of the trial judge during the direct examination of the government’s witness, Eugene Hutto.

Hutto was asked: “What, if anything, did Mr. Whitice say at these meetings concerning any payments to Mr. Falco?” Appellant’s counsel objected on ground that the question sought to elicit hearsay statements made in Falco’s absence. The trial judge overruled the objection and said: “I assume he is going to impeach the testimony of Mr. Whitice.”

Government counsel immediately stated that his purpose was to show Whitiee’s state of mind. Nonetheless, Falco’s counsel moved for a mistrial on the ground that the trial judge’s statement inferred that Whitice was lying, and requested that, in lieu of granting the motion, the trial judge should make a statement indicating that there was no inference of lying by Whitice.

We think there is no rational basis for appellant’s argument that the jury could infer from the statement of the trial judge either that Whitice was unworthy of belief or that the trial judge so believed. The plain meaning of the statement is that the trial judge was under the impression that the question put to Hutto was intended to elicit a response, which would challenge the credibility of Whitice in some respect. The trial judge said nothing to indicate either belief or disbelief of Whitice or of Hutto.

The trial judge denied Falco’s motion for a mistrial and, in a commendable abundance of caution, instructed the jury:

“Ladies and gentlemen, I am going to overrule the objection.
Again, you should keep in mind that the only reason that this answer is being allowed into evidence is to show or to tend to show or to at least allow you all to receive evidence that might assist you in determining the state of mind of Mr. Whitice. It is not admitted for the truth or falsity of the statement, but it is just evidence that is admissible for you to consider in determining the state of mind of Mr. Whitice.
Do you all understand that ?”

Appellant voiced no objection to the adequacy of the instruction and requested no further instructions.

The judgments are affirmed.


author: PER CURIAM:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC, GULF, LAKES & INLAND WATERS DISTRICT, AFL-CIO, Respondent.
    No. 73-2314.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    Elliott Moore, Deputy Assoc. Gen. Counsel, NLRB, Washington, D. C., Louis V. Baldwin, Jr., Director, Region 23, NLRB, Houston, Tex., Charles P. Donnelly, Atty. NLRB, Washington, D. C., for petitioner.
    W. Arthur Combs, Joseph F. Archer, Houston, Tex., Howard Schulman, New York City, for respondent.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   PER CURIAM:

The National Labor Relations Board petitions us for enforcement against Seafarers International Union of an order to cease and desist from certain unfair labor practices, to post a remedial notice, and to take affirmative action to cure its discrimination against one of its members, James Moyles. 202 N.L.R.B. No. 91 (1973). The Board found.that the Union had violated sections 8(b)(1)(A) and (2) of the National Labor Relations Act, 29 U.S.C.A. § 158 (b)(1)(A), (2), by denying Moyles his rightful employment referral seniority classification because he refused to pay a fine, dues, and an initiation fee not uniformly required of Union members by Union practice. The Union is concerned about the precedent that may be established if we enforce the order. It argues that it did not have to refer Moyles in his former classification because under the Union constitution, which was not in evidence in this case, he was not a member in good standing and because under the Shipping Rules governing referral he had lost that classification. On the record of this case, however, and without deciding what the outcome of the case might have been had the Union constitution been before the Board or had the record established that Moyles was not entitled to referral under the Shipping Rules, we enforce the Board’s order as being within its discretion, proeedurally and substantively. Thus the case stands on its own unusual facts and lacks precedential value for the broad issues which concern the Union. In this situation, a brief opinion is sufficient.

Under standard collective bargaining agreements with approximately 100 steamship lines, the Union operates exclusive hiring halls at each port, through which seamen are referred for shipping employment. The Standard Freightship Agreement and the Shipping Rules promulgated thereunder establish three seniority classifications for referral. Level “C” is the lowest rating. A C-rated seaman qualifies for a B-rating when, and for as long as, he has “shipped regularly” (has sailed at least 90 days a year for two consecutive years on vessels covered by Union contracts). A B-rated seaman becomes eligible for an “A” seniority classification when he has shipped regularly for eight consecutive years and has completed an advance course of training. The shipping regularly requirement, however, is tolled when a Union member is an in or out-patient at a United States Public Health Service Hospital or other accredited hospital. When work is available, A-rated seamen are referred before those with B-ratings, while those with B-ratings are referred before C-rated men.

James Moyles testified that he joined the Union and began sailing as a merchant seaman in 1960. He had obtained a B-rating by late 1967 when he was pronounced unfit for duty because of tuberculosis. In early 1970, he was declared again fit for duty. He thereupon applied to the Union and was issued a “B” card on which he accumulated 199 days shipping time that year. He had sailed another 108 days by the middle of 1971 when he was confronted by Union officials demanding dues for 1968 and 1969, a fine, and a new initiation fee. Moyles offered to pay dues for the second and third quarters of 1971, stating he did not owe dues for 1968 and 1969 because he had not been fit to sail. His tender was refused and the Union subsequently refused to refer him as a B-man. On these facts, the Board found that the Union had violated sections 8(b)(1)(A) and (2) by denying Moyles a B-rating because he refused to pay a fine, dues, and an initiation fee not uniformly required by Union practice.

After an adjudicatory hearing, the Administrative Law Judge concluded that the Union had violated sections 8(b)(1)(A) and (2) because of the effect of the Texas right-to-work law on Moyles’ obligation to pay dues. The Board did not pass on this conclusion, and neither shall we. Instead, the Board held the Union had not proved that its refusal to refer Moyles in his proper seniority classification was solely because of his monetary delinquency. As the Board has the ultimate responsibility for decision, it may properly reach its determination on grounds different from those of its hearing officer. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 492, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Mississippi River Corp. v. FTC, 454 F.2d 1083, 1089 (8th Cir. 1972).

According to the Union its constitution would have shown that Moyles was not a member in good standing at the time the Union refused to refer him in his previous “B” classification. Although the Union at the hearing did not proffer the constitution into evidence, it now urges that the Administrative Law Judge was remiss in his “duty . to inquire fully into the facts.” 29 C.F. R. § 102.35 (1973). But this is not a case of a counselless litigant requiring affirmative assistance from the hearing officer to establish his case. See, e. g., Sellars v. Secretary, Department of HEW, 458 F.2d 984 (8th Cir. 1972). Having failed to offer its constitution until after the hearing had closed and the Administrative Law Judge’s opinion had issued, the Union cannot now shift its responsibility to the Administrative Law Judge. See NLRB v. Tyrrell County Lumber Co., 203 F.2d 951 (4th Cir. 1953).

In a further effort to obtain consideration of its constitution, the Union alleges error in the Board’s denial of a post-hearing motion to reopen the proceedings to consider the constitution. The determination on motion for reopening and reconsideration rests with the Board’s sound discretion. NLRB v. Central Power & Light Co., 425 F.2d 1318 (5th Cir. 1970); NLRB v. Better Monkey Grip Co., 243 F.2d 836 (5th Cir.), cert. denied, 355 U.S. 864, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); cf. Radio Corporation of America v. United States, 341 U.S. 412, 71 S.Ct. 806, 95 L.Ed. 1062 (1951). Here the evidence proffered in the motion to reopen was neither newly discovered nor unavailable to the Union’s trial counsel at the time of the hearing. Under the circumstances, we cannot hold that the Board abused its discretion. NLRB v. Victor Otlans Roofing Co., 445 F.2d 299 (9th Cir. 1971); Food Store Employees, Local 347 v. NLRB, 135 U.S.App.D.C. 341, 418 F.2d 1177 (1969).

The Union’s challenge to the Board’s findings rests to a large extent upon evidence contradictory to testimony given by Moyles. The Administrative Law Judge, however, made an explicit credibility finding in favor of Moyles. Credibility choices are the province of the administrative trier of fact not of this Court. NLRB v. Groendyke Transport, Inc., 493 F.2d 17 (5th Cir. 1974); NLRB v. Standard Forge & Axle Co., 420 F.2d 508 (5th Cir. 1969), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). In part the Union relies on its constitution, which, as noted, it failed to introduce into evidence. On the record, we think the Board could properly credit Moyles’ testimony in finding as a fact that the Union did not require dues of members physically unfit for duty. Moyles’ testimony as to his understanding of the operation of the Shipping Rules was sufficient to permit the Board to decide that in actual practice, despite the language of the Shipping Rules, unfitness for duty regardless of hospital in or out patient status was sufficient to toll the shipping regularly provision.

This opinion is not to be taken as authority establishing dues or referral custom and usage. It merely decides this case on what this record reflects. Perhaps other evidence might show a waiver of dues only when a seaman is an in or out-patient of a hospital, or that Moyles could not have been referred as a B-man in any event because of the requirements of the Shipping Rules, but any such evidence is not in this record and can be given no consideration in the disposition of this case.

Enforced.