author: RONEY, Circuit Judge:

text:
    NEWSPAPER PRODUCTION COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. SHREVEPORT ENGRAVING COMPANY, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    Nos. 73-3093, 73-3094.
    United States Court of Appeals, Fifth Circuit.
    Nov. 6, 1974.

      Andrew C. Partee, Jr., New Orleans, La., for petitioners.
    Elliott Moore, Deputy Associate Gen. Counsel, Jay E. Shanklin, Atty., N.L.R. B., Washington, D. C., Charles M. Paschal, Jr., Regional Director, Region 15, N.L.R.B., New Orleans, La., for respondent.
    John S. McLellan, Jr., D. Bruce Shine, Kingsport, Tenn., for intervenor Shreveport Printing Pressmen’s Local Union No. 181.
    Before MOORE, AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit sitting by designation.

   RONEY, Circuit Judge:

These cases are before this Court upon the petitions of Newspaper Production Company (NPC) and Shreveport Engraving Company, Inc. (Engraving) pursuant to section 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board issued on August 27, 1973, in a consolidated proceeding against them. The Board has cross-applied for enforcement of its order which is reported at 205 NLRB No. 113 (1973).

In this case, we push the law concerning the ability of a union to bargain to impasse slightly ahead of where we found it, but the remainder of the issues are controlled by the application of settled law to the facts. Contrary to the arguments of NPC and Engraving, we uphold the Board’s determination (1) that the two constituted a single employer for purposes of collective bargaining, (2) that a striking union was entitled under the circumstances here to insist on bargaining to the point of impasse for a larger appropriate bargaining unit, (3) that the Companies violated sections 8(a)(3) and (1) of the Act, 29 U.S.C.A. § 158(a)(3) and (1), by failing to reinstate the strikers after they unconditionally offered to work and by discharging the NPC strikers. We therefore deny the petitions for review and enforce the order on the Board’s application.'

The conflict which led to the serious repercussions of this case started innocently enough when the general production workers of Engraving, three in number, chose Local 214 of the Lithographers and Photoengravers International Union (the Union) as their bargaining representative. The same Union had previously represented the eight to eleven skilled photoengravers which comprised the other significant group of Engraving’s employees. The photoengravers’ contract had expired and was up for renewal at the same time the Union was negotiating on behalf of the newly represented general production employees. The Union took the position that the photoengravers and the general production workers should be included in one bargaining unit and should be the subject of one contract. The Union secretary asserted that since there were so few general production workers he did not want to bother with two contracts. Engraving resisted, apparently on the ground that it did not want skilled and unskilled workers in the same contract. For reasons that do not appear in the record and that we are unable to discern from written and oral argument, positions hardened to the point of total disagreement, and the Union struck.

Up to this point only Engraving and its workers were involved. Upon striking, however, the Union threw a picket line around the building which, in addition to Engraving, also housed the offices and plant of NPC, the other petitioner in this proceeding. At the same time the Union successfully urged certain NPC employees, members of the International Stereotypers and Electrotyp-ers Union Local No. 132 (Stereotypers) and Shreveport Printing Pressmen’s Local Union No. 181 (Pressmen), to refuse to cross the picket line. The picket line was dropped a few days later when it was learned that members of still another union had entered the building despite the picketing. Thereupon a Union official informed Engraving’s manager that its employees were ready to return to work and resume negotiations, and the NPC employees who had honored the picket line showed up en masse at the building to reclaim their jobs. When NPC and Engraving did not reinstate these employees, members of all three unions resumed picketing, claiming a lockout. NPC discharged the Pressmen and Stereotypers for violating alleged no-strike clauses in their contracts.

These facts raise the issue of whether or not the employees of Engraving were entitled to bargain to impasse, i. e., to bring strike pressure on the Company when it failed to agree to treat the two groups of employees as a single unit.

The single employer issue is raised by the following facts: Times Publishing Company, Ltd. and the Journal Publishing Company, Inc., separately owned, publish two daily newspapers in Shreveport, Louisiana, out of the same plant. While the editorial and reporting operations of each are separate, NPC handles the mechanics of publication of both newspapers, including sales of subscriptions and advertising, circulation and printing. NPC is a joint venture of both newspapers, being owned 62% percent by the Times, and 37% percent by the Journal. NPC obtains its photoengraving work for both newspapers from Engraving which is owned equally by the Times, the Journal, and an unrelated third party. This sets the backdrop for the claim that NPC and Engraving are a single employer for collective bargaining purposes. Additional facts will be developed as we explore each contention of the parties in this proceeding.

After an extensive hearing, the Administrative Law Judge recommended dismissal of the complaint filed by the unions against Engraving and NPC. He ruled that the Union had violated section 8(b)(3) of the Act by insisting to the point of impasse on expansion of the bargaining unit, a nonmandatory subject of collective bargaining. Then, deciding that the two concerns were separate employers for collective bargaining purposes, he ruled that the photoengravers’ Union had violated section 8(b)(4) of the Act by inducing an illegal secondary boycott of NPC. Since the strike was not protected concerted activity, the Companies, in his view, committed no violation of the Act by refusing to reinstate the employees despite their unconditional requests for reinstatement.

The Board did not accept all of the Administrative Law Judge’s conclusions. Contrary to his findings, it found that, under the circumstances of this case, the Union members were entitled to strike to bring pressure on Engraving to accept an expanded bargaining unit and that the two businesses did constitute a single employer for bargaining purposes. It also ruled that the Stereotypers and Pressmen, sympathy strikers honoring the Union’s picket line, had not violated valid no-strike clauses, because there were, in fact, no such clauses in their contracts. It affirmed the finding that the strikers’ requests for reinstatement were unconditional. It held that NPC and Engraving violated section 8(a)(3), and derivatively section 8(a)(1), in discharging or failing to reinstate employees engaged in protected concerted activity. The Board sustained the Law Judge’s holding that Engraving had not violated its section 8(a)(5) obligation to bargain in good faith by insisting to impasse on separate contracts for the two units.

Accordingly, the Board issued a cease and desist and reinstatement order, requiring the Companies to offer the affected employees immediate reinstatement with backpay, discharging if necessary any replacement employees hired after August 22, 1969, (the date the strikers unconditionally applied for reinstatement). If the number of employees desiring reinstatement exceeds the number of available positions, the Companies are to place the remaining strikers on a preferential hiring list qualifying them for reinstatement and backpay as vacancies occur.

The Companies attack the Board’s order on four grounds. They allege that (1) the Board’s finding Engraving and NPC a single employer is not supported by substantial evidence, (2) the Board erred in holding the bargaining unit to be a mandatory issue on which the Union could insist to the point of impasse, (3) the Board’s finding of employee unconditional requests for reinstatement is not supported by substantial evidence, and (4) the Board wrongfully interpreted the Stereotypers’ and Pressmen’s contracts as not including no-strike obligations.

I. SINGLE EMPLOYER ISSUE

The Companies first challenge the Board’s conclusion, contrary to that of the Administrative Law Judge, that Engraving and NPC were a single employer for collective bargaining purposes. A successful challenge would require us to deny enforcement of the Board’s order, since if the Companies were separate employers, their employees violated section 8(b)(4) of the Act — the members of the photoengravers’ Union by inducing, and the NPC employees by participating in an unlawful secondary boycott. If the employees violated the Act, they cannot invoke its protection and are not entitled to reinstatement upon request. NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d 409 (5th Cir. 1955); National Packing Co. v. NLRB, 352 F.2d 482 (10th Cir. 1965), appeal after remand, 377 F.2d 800 (1967); NLRB v. Blades Manufacturing Corp., 344 F.2d 998 (8th Cir. 1965); United Furniture Workers v. NLRB, 118 U.S.App.D.C. 350, 336 F.2d 738, cert. denied, 379 U.S. 838, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964); see Southern Steamship Co. v. NLRB, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246 (1942). On the other hand, if substantial evidence supports the Board’s single employer finding, both groups of employees which engaged in the economic strike are entitled to reinstatement on request, subject to the rights of previously hired permanent replacements.

The central theme of the secondary boycott provisions of the National Labor Relations Act is protection of neutral employers from union pressures designed to involve them in labor disputes not their own. National Woodwork Manufacturers Ass’n v. NLRB, 386 U.S. 612, 625-626, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967); see NLRB v. Local 825, Operating Engineers, 400 U.S. 297, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). The Supreme Court has recognized the Board's use of four factors to determine if nominally separate business entities make up a single integrated enterprise and hence are not neutral in each other’s labor disputes. “The controlling criteria . are interrelation of operations, common management, centralized control of labor relations and common ownership.” Radio Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). Ultimately, however, the inquiry into neutrality involves a case by case consideration of the factual relationship between the secondary employer (here NPC) and the primary employer (here Engraving) against the legislative purpose to protect only employers “wholly unconcerned” with the primary labor dispute. Vulcan Materials Co. v. United Steelworkers, 430 F.2d 446 (5th Cir. 1970), cert. denied, 401 U. S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971); NLRB v. Local 810, Steel Fabricators, 460 F.2d 1 (2d Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972).

The record in this ease adequately supports the Board’s conclusion that the two companies were properly to be considered as a single enterprise for collective bargaining purposes. NPC is owned jointly by Times Publishing Co. (62%%) and Journal Publishing Co. (37%%), the two daily newspapers in Shreveport, Louisiana. The two papers also each own a one-third interest in Engraving, with the remaining interest held by an independent third party. The President of the Times, William H. Bronson, Sr., is both NPC’s President and Engraving’s Chairman of the Board.

Both Engraving and NPC conduct their operations in the basement of the building housing the editorial and other staffs of both newspapers. Engraving supplies virtually all of NPC’s photoengraving needs, devoting 50 percent of its efforts to NPC work. Because of volume discounts, NPC work accounts for only 30 percent of Engraving’s gross sales. A significant portion of Engraving’s other revenue is derived from work done for firms advertising in the papers. For these clients, Engraving picks up copy at the advertiser’s place of business, engraves the material on plates, and delivers the finished product directly to the NPC composition room. As a final indicator of the interrelated nature of the Companies’ operations, we note the attendance of Charles Nicholson, Engraving’s manager, at NPC’s daily quality control meetings for department supervisors.

Although Nicholson had complete charge of Engraving’s day-to-day operations after his appointment as manager by Bronson, Sr., NPC had a continuing involvement in Engraving’s labor relations. Bronson Sr. told Nicholson not to negotiate labor contracts by himself and suggested he consult NPC’s Director of Labor Relations, William H. Bronson, Jr., a person trained in labor relations. Bronson Jr. subsequently participated in Engraving’s contract negotiations, including those leading to the dispute now before us. In addition, Douglas Atta-way, Jr., a Journal vice-president who regularly sat in on NPC labor negotiations, joined Engraving’s negotiating team after the photoengravers went on strike.

Although a case might be made to support the Administrative Law Judge’s finding of the Companies’ status as separate enterprises, it is apparent from the foregoing summary of the evidence that the Board’s determination that NPC was not neutral and disinterested in Engraving’s labor dispute is also tenable. In such a case, we must affirm the Board’s determination. Under the substantial evidence test mandated by 29 U.S.C.A. § 160(e), as a reviewing court, we may not “displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,” even if the determination involves application of law to facts rather than pure factfinding. NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 992, 19 L.Ed.2d 1083 (1968); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Accordingly, we uphold the Board’s determination on the single employer issue.

II. BARGAINING TO IMPASSE ON THE BARGAINING UNIT

The Companies next contend that the Board erred in reversing the Administrative Law Judge and holding that the photoengravers’ Union was entitled to insist to the point of impasse and strike upon expansion of the contractual bargaining unit to include the general production workers. The result of this holding is that the strike was not considered violative of section 8(b)(3) as embracing an unlawful objective. The Companies urge that a proposed change in the bargaining unit is not a mandatory subject of bargaining and that the Union members lost the protection of the Act by striking to enlarge the unit. If the Companies’ view is correct, those NPC workers who refused to cross the Union’s picket line also lost the protection of the Act because sympathy strikers stand in the same shoes as the striker with whom they sympathize. NLRB v. Southern Greyhound Lines, 426 F.2d 1299, 1301 (5th Cir. 1970); see Virginia Stage Lines, Inc. v. NLRB, 441 F.2d 499 (4th Cir.), cert. denied, 404 U.S. 856, 92 S.Ct. 105, 30 L.Ed.2d 98 (1971). Since neither Company’s employees were engaged in protected activities, neither Company was required to reinstate its workers upon their request. NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d 409 (5th Cir. 1955); National Packing Co. v. NLRB, 352 F.2d 482 (10th Cir. 1965), appeal after remand, 377 F.2d 800 (1967). On the other hand, if the photoengravers were engaged in a lawful strike over expansion of the bargaining unit, both Companies committed an unfair labor practice in not reinstating their employees upon unconditional request.

Generally, insistence to the point of impasse on restriction or expansion of the bargaining unit is an unfair labor practice. See, e. g., Hess Oil & Chemical Corp. v. NLRB, 415 F.2d 440 (5th Cir. 1969), cert. denied, 397 U.S. 916, 90 S.Ct. 920, 25 L.Ed.2d 97 (1970); NLRB v. IBEW, 266 F.2d 349 (5th Cir. 1959); International Longshoremen’s Ass’n v. NLRB, 107 U.S.App.D.C. 329, 277 F.2d 681 (1960); Douds v. International Longshoremen’s Ass’n, 241 F.2d 278 (2d Cir. 1957). The considerations prompting this general rule are, however, largely absent in this case. We therefore decline to extend the rule to cover the particular facts before us in the face of a contrary conclusion by the Board, the agency charged with the responsibility of setting our national labor relations policy. In so doing we do not in any manner impugn the general rule in the contexts in which it has previously been applied.

Here the Union already represented the general production workers they sought to include in the bargaining unit. Thus, unlike other court decisions, this case does not involve any interference with the representational rights of the employees affected by expansion of the unit. See, e. g., Sperry Systems Management Div. v. NLRB, 492 F.2d 63 (2d Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3065 (U.S., Aug. 13, 1974), (No. 73-1712); International Longshoremen’s Ass’n v. NLRB, 107 U.S.App.D.C. 329, 277 F.2d 681 (1960). Nor does it present a jurisdictional dispute between two unions. See, e. g., NLRB v. IBEW, 266 F.2d 349 (5th Cir. 1959); Smith Steel Workers v. A. O. Smith Corp., 420 F.2d 1 (7th Cir. 1969).

The Companies concede that the proposed bargaining unit, comprising both photoengravers and general production workers, would be an appropriate unit under established Board principles. The Board relied on a clause in the expiring contract providing for inclusion in the contract of any unaffiliated department that subsequently chose the photoengravers’ Union as its bargaining representative, as an indication that the parties regarded the scope of the bargaining unit as an issue suitable for resolution through bargaining.

In contrast to other decisions, this ease does not involve a demand for a unit that would conflict with a previous Board unit certification. See, e. g., Sperry Systems Management Div. v. NLRB, 492 F.2d 63 (2d Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3065 (U.S., Aug. 13, 1974) (No. 73-1712); NLRB v. Southland Cork Co., 342 F.2d 702 (4th Cir. 1965). The mere absence of Board certification does not, however, preclude an unfair labor practice finding. See Hess Oil & Chemical Corp. v. NLRB, 415 F.2d 440 (5th Cir. 1969), cert. denied, 397 U.S. 916, 90 S.Ct. 920, 25 L.Ed.2d 97 (1970). In Hess, the respondent company was held to have violated the Act by insisting to impasse on the exclusion of certain workers from an appropriate bargaining unit previously agreed upon by contract. The Court indicated that it was an unfair labor practice to insist on a change from an appropriate bargaining unit to an inappropriate one. Id. at 444. See also Boire v. Teamsters, 479 F.2d 778, 801 (5th Cir. 1973). In seeking an appropriate unit, the Union did not infringe upon the Board’s function of formulating national labor relations policy, particularly in view of the parties’ previous agreement concerning the scope of the bargaining unit. Since this case is not one appropriate for application of the doctrine that insistence on a change in the bargaining unit is a violation of the Act, we uphold the Board’s finding that the Companies committed unfair labor practices in refusing to reinstate the employees who struck in support of the enlarged bargaining unit.

III. UNCONDITIONAL REQUESTS FOR REINSTATEMENT

The Companies, conceding for argument’s sake that their employees were engaged in a protected concerted activity, challenge the Board’s finding that the strikers made unconditional requests for reinstatement. Engraving argues that the photoengravers conditioned their return on NPC’s reinstatement of the sympathy strikers. There is ample evidence to support the conclusion that this alleged condition was one placed on a final collective bargaining agreement rather than on the employees return to work. NPC contends its employees also insisted on returning to work as a group. The Unions, however, at various times requested information as to the number and type of replacements hired, indicating an awareness that reinstatement depended on the availability of jobs. The Companies, in turn, demanded that the strikers make individual requests for reinstatement. An employer is not permitted to delay reinstatement by insisting on such a procedure. A collective request for reinstatement made through the Union is sufficient. Retail Union v. NLRB, 151 U.S.App.D.C. 209, 466 F.2d 380 (1972); see Olin Industries, Inc. v. NLRB, 191 F.2d 613 (5th Cir. 1951), cert. denied, 343 U.S. 919, 72 S.Ct. 676, 96 L.Ed. 1332 (1952); Serv-Air, Inc. v. NLRB, 395 F.2d 557 (10th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968). Once such a request is made, the burden is on the employer to offer reinstatement to employees for whom positions are available. See NLRB v. Transport Co., 438 F.2d 258 (5th Cir. 1971); American Machinery Corp. v. NLRB, 424 F.2d 1321 (5th Cir. 1970). That the mass application at the plant door occurred at a time other than the beginning of a shift does not satisfy the employer’s burden under American Machinery to demonstrate “legitimate and substantial business justification for denying reinstatement.”

It is clear from the record that neither Engraving nor NPC had eliminated or had filled with permanent replacements all positions vacated by the strikers. Engraving violated sections 8(a)(3) and 8(a)(1) by refusing their employees’ unconditional request for reinstatement. Backpay to the date they should have been reinstated is appropriate for all employees, including those who must be placed on a preferential hiring list because they were replaced before their request for reinstatement. See C. H. Guenther & Son, Inc. v. NLRB, 427 F.2d 983 (5th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246 (1970); American Machinery Corp. v. NLRB, 424 F.2d 1321 (5th Cir. 1970); Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970). Since sympathy strikers are entitled to the same protection afforded the workers with whom they sympathize, NPC employees who honored the picket line are entitled to the same remedy unless, as NPC contends, these workers were subject to enforceable no-strike obligations.

IV. ALLEGED NO-STRIKE OBLIGATIONS

NPC argues that it was not required to reinstate striking members of the Stereotypers and Pressman Unions and was permitted to discharge them for engaging in a sympathy strike because they were in violation of no-strike clauses in their contracts. See NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1953). The Board rejected the argument as to each Union. The Board’s construction of collective bargaining agreement clauses will stand if it is warranted by the record and has a reasonable basis in law. Employing Lithographers v. NLRB, 301 F.2d 20 (5th Cir. 1962); see NLRB v. C & C Plywood Corp., 385 U.S. 421, 430-431, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967).

A. THE STEREOTYPERS

NPC contends that the Stereotypers were bound by the preamble of the collective bargaining agreement then in effect not to engage in sympathy strikes. The preamble read:

Witnesseth: This agreement is entered into for the purpose of preventing misunderstanding between the parties; to establish a wage scale, working hours and working conditions; to prevent lockouts, boycotts and strikes, and to provide for conciliation if necessary.

The Board held that the preamble merely stated the purposes of the contract and fell “patently short” of a waiver by the Stereotypers of their right to strike. This is a reasonable interpretation and one which we shall not disturb on this record. Relinquishment by collective bargaining agreement of individual Union member’s right to observe other Unions’ picket lines must be expressed in “clear and unmistakable language.” Compare Kellogg Co. v. NLRB, 457 F.2d 519 (6th Cir.), cert. denied, 409 U.S. 850, 93 S.Ct. 58, 34 L.Ed.2d 92 (1972) (no sympathy strike shall be caused or sanctioned by Union) with Monongahela Power Corp. v. Local 2332, IBEW, 484 F.2d 1209 (4th Cir. 1973) (no employee shall participate in any work stoppage or interference); cf. NLRB v. Item Co., 220 F.2d 956 (5th Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 73, 100 L.Ed. 746 (1955).

B. THE PRESSMEN

NPC asserts that the Pressmen were obligated not to participate in a sympathy strike in 1969 by virtue of either (1) the continuing effect of two arbitration agreements, both of which expired December 31, 1967, or (2) an oral or implied agreement to continue during negotiations the terms of an arbiter’s contract that terminated on September 30, 1968.

NPC first argues that the Pressmen were forbidden to strike because the interaction of the arbiter’s contract and the International Arbitration Agreement (made applicable by the Individual Arbitration Agreement) created an obligation to arbitrate disputes and a duty not to strike, until such time as the arbiter’s contract had been renewed. The Board rejected this argument, holding that there was no contractual relationship between NPC and the Pressmen when members of that Union honored the picket line. This is a reasonable interpretation of the various agreements involved.

The International Agreement provided that the duty to arbitrate would continue after the Agreement’s expiration only until then existing local contracts had been renewed. When the Agreement expired on December 31, 1967, the parties’ last signed contract had expired September 30, 1965, and the terms of a new agreement were still in arbitration. The contract awarded in that arbitration was not in existence until June 1968. Thus, rather than being a local contract which had to be renewed before the International Agreement’s arbitration obligation was extinguished, the award itself terminated that duty. In accordance with the parties’ stipulation the contract awarded in arbitration terminated September 30, 1968. Its no-strike provision was limited to the life of the agreement. Accordingly, we uphold the Board’s determination that the International Arbitration Agreement’s no-strike guarantee was not binding on the Pressmen in August 1970 when they honored the picket line.

NPC’s second contention is that the Pressmen had agreed to continue the terms of the arbiter’s contract, including the no-strike provision, during negotiations for a new collective bargaining agreement. Although there is some support in the record for this position, other evidence supports the Board’s view that there was no express or implied pledge against sympathy strikes. Under the substantial evidence test, therefore, we must uphold the Board. NPC’s reliance on Silbaugh v. NLRB, 139 U.S. App.D.C. 82, 429 F.2d 761 (1970), is misplaced. That case merely applied the substantial evidence test to the Board’s determination on conflicting evidence that a Union had agreed to extend the terms of an expired contract during negotiations for a new one. It does not provide authority for reversing the Board here.

The petition for review is denied and the order of the Board is enforced.


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe E. SIMMONS, Defendant-Appellant.
    No. 73-2664.
    United States Court of Appeals, Fifth Circuit.
    Nov. 7, 1974.
    Rehearing Denied Dec. 6, 1974.

      Allen I. Hirsch, Atlanta, Ga., for defendant-appellant.
    William J. Schloth, U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

Appellant, Joe E. Simmons, was convicted on two counts of furnishing false statements to a federal land bank in violation of Title 18, U.S.C., Section 1014. He appeals on the following four grounds: (1) certain damaging testimony as to a prior occurrence should not have been admitted into evidence at trial; (2) a jury instruction regarding “accomplice” testimony should not have been given; (3) the insufficiency of the evidence to support a conviction under Count Two of the indictment; and (4) prejudice before the jury resulting from the attitude and demeanor of the trial judge, viewing the record as a whole. We fail to find that reversible error occurred at the trial, and affirm.

In October of 1971, Simmons applied to the Federal Land Bank Association of Madison, Georgia for a loan in the amount of $135,000. The bank requested a financial statement and some verification of claimed income. Simmons responded by furnishing a financial statement and his 1969 income tax return, both of which from their face indicated they were prepared by his accountant, Herbert E. Woll. These two statements were the underlying documents for the two counts of the indictment upon which Simmons was charged and convicted.

The financial statement in question was in three parts — (1) the preamble, which included Woll’s signed statement of professional verification, (2) the statement of net worth, which purported to include total assets and liabilities, (3) the itemized breakdown of two assets included in the statement of net worth, entitled “Investments in Controlled Companies” and “Investments in Real Estate.” The specific portions of the financial statement challenged as false were the evaluations of the two assets in part 3.

The income tax return was challenged on two separate grounds, first that the represented gross income and tax credits were knowingly false, and second that the return itself was a knowingly false representation in that it had never been filed and hence was not what it purported to be, a copy of a valid income tax return.

Simmons’s first contention on appeal concerns testimony elicited from the last of the 24 government witnesses called at trial, Fred Judd. Judd testified, over timely objection, that in 1969 he was the vice president of a corporation in which Simmons was the largest stockholder. The corporation sought a loan from a bank which, in turn, requested the corporate principals, including both the witness and Simmons, to furnish a financial statement. Although Simmons refused to comply personally with the bank’s request, Judd’s testimony was that he, Simmons, undertook to teach Judd how to mislead the bank by means of a false financial statement. Simmons’s position is that this testimony was erroneously admitted into evidence because it did not meet the requirements established in United States v. Broadway, 5 Cir. 1973, 477 F.2d 991, for the admission of proof of a separate offense to show guilty knowledge or intent. We think this position is unsound because Judd did not testify as to a prior criminal offense, but rather simply as to a similar earlier occurrence.

Evidence of acts similar to those charged is often tendered to establish a required mental ingredient of the offense charged. The test of admission is the traditional balancing of probative value against prejudicial effect. See, United States v. Scanland, 5 Cir. 1974, 495 F.2d 1104. When the acts sought to be admitted constitute a prior criminal offense the inherent danger of prejudicing the jury against the defendant is so great that unless the evidence of the other similar crime is reasonably necessary to the government’s case, United States v. Goodwin, 5 Cir. 1974, 492 F.2d 1141, and is plain, clear and conclusive, United States v. Broadway, supra, its probative value will not be held to outweigh its possibility or prejudice. United States v. Miller, 5 Cir. 1974, 500 F.2d 751. Thus we have held evidence of a prior offense admissible to show intent or guilty knowledge only if the prior offense included the essential physical elements of the offense charged, and these physical elements, but not necessarily the mental element of the offense, are clearly shown by competent evidence. United States v. Shadletsky, 5 Cir. 1974, 491 F.2d 677; United States v. Fonseca, 5 Cir. 1974, 490 F.2d 464. But this is not to say that proof only of acts which amount to a criminal offense are admissible. We have never held that a defendant’s intent or guilty knowledge can be proved only by evidence of prior acts rising to the level of a criminal offense. See, United States v. Scanland, supra.

In order to meet its burden of proof in any prosecution pursuant to Title 18, U.S.C., Sec. 1014, the government must show (1) that a statement has been supplied by the defendant to a specified lending institution which is capable of influencing the institution’s decision to loan funds, and (2) that the statement is knowingly false. United States v. Kay, 1968, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607; United States v. Goberman, 3 Cir. 1973, 458 F.2d 226. Simmons’s intent or guilty knowledge was, therefore, a primary ingredient of the government’s case. Moreover, since Simmons did not deny that he supplied the statements to the bank, but defended instead on the grounds that they were not knowingly false, his intent or guilty knowledge became the primary contested ingredient of the offense in the case. Since Judd’s testimony was plain, clear and conclusive that Simmons possessed the requisite knowledge to falsify a financial statement to be presented to a bank in conjunction with a loan, we deem Judd’s testimony to be admissible as probative of Simmons’s guilty knowledge or intent. We conclude also that the probative value of the evidence was not clearly outweighed by its prejudicial effect on the jury.

The trial judge’s inaccurate reference to this evidence as a prior offense was unfortunate but not controlling. We conclude because of the strong nature of the government’s proof that any error created by improper judicial characterization was harmless beyond a reasonable doubt. Simmons is entitled only to a fair trial, not necessarily a perfect one. Lutwak v. United States, 1953, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593; Samuels v. United States, 5 Cir. 1968, 398 F.2d 964. We decline, in the peculiar factual context present, to exalt form over substance by concluding that prejudicial error occurred in this regard.

Simmons’s second contention concerns the trial court’s giving the jury an accomplice instruction respecting the testimony of Woll. Each of the statements set forth in Count One and Count Two of the indictment on its face identified Woll, Simmons’s accountant, as the preparer. Regarding Simmons’s purported 1969 tax return, (Count Two) Woll denied having prepared or signed it, although what appeared to be his signature was located in the space provided on the form for “preparer other than taxpayer.” Regarding the financial statement, (Count One) Woll testified in substance that he had prepared it with the help of Simmons. More specifically, Woll testified that almost the entire financial statement was based solely on Simmons’s evaluations of his own assets. When confronted with his signed statement of professional verification, Woll explained it as an inadvertent signing of a “standard letter form that we use all the time.” At one point during the direct examination, the district judge asked Woll whether at the time he prepared the financial statement he had been advised by Simmons that it would be used in conjunction with a loan application to a federal bank. • Woll answered :

“No, he didn’t advise me such, but I probably figured he was going use it for credit purposes of some sort.
I would say generally speaking he brought them in for various reasons, but basically they use financial statements to show his net worth to various people for various things.”

The court thereupon reminded Woll of the putative criminal status of an aider and abettor, and informed him of his constitutional right against self-incrimination. At the conclusion of Woll’s testimony, prior to the next witness being presented, the trial judge turned to the jury and said:

“Ladies and Gentlemen, the Court is not going to instruct you all until the end of the case and the fact that I may mention some things during the case is not intended to overemphasize it but to keep the trial in perspective. And one of the things the Court is going to tell you at the end of the case is that an accomplice is someone who unites in the commission of a crime. It would be possible for you ladies and gentlemen, if you find that a crime has been committed, to find that the witness that has just left the courtroom may be an accomplice. And it would be possible legally, if you find that'he is an accomplice, then for you to be confronted with the question of what weight, if any, to give the testimony of an accomplice.
I just simply point that out. The Court will instruct you as to that at the end of the case.”

In his charge to the jury at the end of all evidence, the trial judge included the customary charge as to the weight to be accorded testimony of an accomplice, directing that it be received and weighed with caution, and referred to Woll by name.

There is no substance to Simmons’s claim that the giving of these instructions was harmful to him and constituted reversible error because Woll was not a “principal, accessory or associate in guilt.” If a witness is subject to indictment as a principal or accessory to the offense for which the defendant is charged, he is an accomplice. United States v. Nolte, 5 Cir. 1971, 440 F.2d 1124, 1126; Phelps v. United States, 5 Cir. 1958, 252 F.2d 49, 52. An individual who aids or abets another in the commission of a crime against the United States is punishable as a principal. Title 18, U.S.C., Sec. 2(a). The evidence sufficiently shows that Woll could have been indicted for aiding or abetting Simmons in the latter’s deception.

We also find groundless Simmons’s contention that the charge was unnecessary. Whether an accomplice testifies for the prosecution or for the defense, “it is within the trial judge’s discretion to instruct the jury to accept an accomplice’s testimony with caution.” United States v. Nolte, supra, 440 F.2d at 1126-1127. Woll’s testimony if credited by the jury was highly damaging to Simmons. It is difficult to discern error harmful to Simmons in directing the jury to weigh it with caution.

Simmons’s next ground of appeal questions the sufficiency of the evidence to support the conviction under the second count of the indictment. Simmons asserts that there was no proof whatsoever at trial as to any false statement in the tax return. We disagree. For instance, the return showed a prepaid tax of $20,000 and a net income of approximately $311,000. The testimony of Simmons himself adequately demonstrated the falsity of these two figures. The evidence also showed that the return was not as represented, a genuine return. It was never filed with the Internal Revenue Service. Viewing the evidence in the light most favorable to the government, as we must, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Warner v. United States, 5 Cir. 1971, 441 F.2d 821; Peters v. United States, 5 Cir. 1967, 376 F.2d 839, we are left without serious doubt as to the sufficiency of the evidence to support the conviction under Count Two.

Lastly, the appellant urges that the hostile attitude and demeanor of the trial judge throughout the trial, including his remarks at appellant’s sentencing, prejudiced his right to a fair trial. A thorough perusal of the record, including the instances cited on brief convinces us that this point is unsupported by the record. Further discussion is not warranted.

Despite discerning no merit in any point raised by Simmons o» appeal, we find it necessary to remand for correction of an error occurring in the imposition of sentence. Simmons was directed to serve concurrent three year confinement sentences and to pay fines of $5,000 as to each count. Title 18 U. S.C. Sec. 1014 directs that the penalty for conviction be a fine of not more than $5,000, or imprisonment for not more than two years, or both. For the limited purpose of the sentence being corrected to conform to the statute, this cause is remanded to the district court.

Affirmed and remanded for correction of sentence.

      . Sec. 1014 states, in pertinent part:
      “Whoever knowingly makes any false statement or report ... for the purpose of influencing in any way the action of (an extensive list of institutions here follows, among which is a Federal land bank) . . . upon any application or loan . . . shall be fined not more than $5,000 or imprisoned not more than two years, or both.”

      . Mr. Gus Johnson, president of the bank, had asked Simmons for his most recent tax return, which should have been 1970. Simmons explained that the Internal Revenue Service had given him an extension of time for filing his 1970 return due to an automobile accident in which he was injured and his 1970 return had, therefore, not yet been prepared. Simmons’s 1969 return was accepted by Johnson, together with his approved application for the 1970 extension.

      . Tlie following preamble constituted the cover letter attached to the financial statement:
      “In accordance with the terms of my engagement, I have examined the records and supporting data of Joe and Joellen Simmons. After such tests as were deemed necessary, the accompanying financial statement as of July 31, 1971 was prepared.
      Stock certificates were examined and current market values were verified with quotes from a reputable brokerage firm.
      The controlled corporations have large land holdings in Newton County, Georgia. The values for this acreage was determined with the help of various real estate agents who were familiar with land values in the area.
      Several of the corporations have borrowed funds from the C & S Bank and the Peoples American Bank. Joe Simmons has a contingent liability on these loans of $275,000.00. The real estate corporations and controlled corporations have mortgages in the amount of $271,887.43 on which Joe Simmons is a co-maker. These are against the real estate.
      Subject to the above comments, the accompanying financial statement fairly presents the financial condition of Joe and Joellen Simmons as of July 31, 1971, in accordance with generally accepted accounting principles.”
      /s/ Herbert E. Woll.

      . Judd testified as to this incident, occurring two years before the transaction under indictment :
      A. Mr. Simmons indicated that the way to fill out a financial statement would be to show a large number of shares with a believable value per share of perhaps three to five dollars, but to show a large number of shares so that the total value shown would be supremely large and even if the banker discounted the total value substantially from five million to one million, he would still be in the banker’s mind showing a million dollars.
      Q. Was there any discussion as to whether or not you owned the stock you were trying to evaluate and what Mr. Simmons advised you in regard to that?
      A. Well, Mr. Simmons told me at the time that I owned some stock that I didn’t know about in a company called Federal Franchise Corporation.
      Q. Did you ask him whether or not you should put that down on the financial statement?
      A. Yes, and he said definitely put it down.
      Q. Even though you didn’t own it?
      A. He said, “you will own it, and you do own it.” I said, “Well, I don’t have it,” and he said, “Well, put it down.”
      * * * x *
      Q. Did he indicate what impression he may have had of bankers in general?
      A. He just felt like they would always lend some credence to what was put down on the statement even though. it might be very small. No matter how conservative or dumb or whatever they might be, that they would still believe something that was on the paper, that nobody would ever suspect going from zero to ten million. They might believe going from a million to ten million.

      . THE COURT: Was there any source other than Mr. Simmons for any of the information shown in this entire financial statement?

        WOLL: No, not as far as the original information.
      THE COURT: Well, how about the remainder of the information on the (financial statement) ? Where did that information come from beginning with “Investment in Real Estate Schedule 2?”
      WOLL: Joe Simmons.
      THE COURT: Any source other than Mr. Simmons?
      WOLL: No.
      THE COURT: Was there any source other than Mr. Simmons for any of the information shown in this entire financial statement?
      WOLL: No, not as far as the original information.
      THE COURT: What do you mean “not as far as the original — ”
      WOLL: The original information as to ownership of land, how many acres.
      THE COURT: What information is there to your knowledge that came from anybody other than Mr. Simmons that’s in that financial statement?
      WOLL: The valuation of the land in Newton County.
      THE COURT: Who put the figure on it?
      WOLL: I put the figure on the valuation of it per acre.

      . THE COURT: Then I would further assume that you were aware that under the laws of the state pertaining to aiding and abetting others that if it were to appear that you had any responsibility for anything that is materially false in this document that you too could be criminally responsible?
      WOLL: I understand, but to the best of my knowledge we were very careful not to make any.
      THE COURT: I understand. I am not suggesting one way or the other.
      WOLL: I understand.
      THE COURT: I think it is a Judge’s duty to apprise every witness of where he stands in a case and I am simply pointing that out to you and advising you that if you feel that there is any possibility of your implication that under the Constitu-ción. you, yourself do not have to incriminate yourself by your own testimony.
      WOLL: I understand.
      The district judge reminded Woll a second time of his right against self-incrimination in connection with Woll’s testimony as to his statement of professional verification. When the witness was asked whether he had in fact verified any stock certificates with brokerage firms as his statement said, Woll admitted that he had not.

      . It is interesting to note that after returning its guilty verdict, the jury made a formal request to the trial court that Woll be indicted for aiding Simmons in the deception.

      . Count Two of the indictment alleged that Simmons furnished to the federal land bank a false and fraudulent 1969 income tax return which return in fact had never been filed.

      . We quote from the cross-examination of Simmons:
      Q. Now, did you look at this return, Mr. Simmons, before you handed it to Mr. Johnson?
      A. I signed it, yes sir.
      Q. You signed it? Now, you see down here on No. 22 where it says estimated 1969 tax payments?
      A. Yes, I see it now.
      Q. And you see that $20,000?
      A. Yes sir.
      Q. Did you pay $20,000 to the government in 1969?
      A. I did not.
      ij: * * 5k 5k
      Q. Is $311,000 an accurate reflection of your income in 1969?
      A. No sir.
      Q. It is not?
      A. It is not.

      . As to the remarks at sentencing, Transcript pp. 401-409, consultation of the record indicates that these comments were based in part upon the pre-sentence report then before the judge and in part upon his recollection of the trial testimony. Coming when they did, they indicate no prejudice on the judge’s part against the appellant. Even though the trial judge was in error as to the maximum lawful confinement sentence under Title 18, U.S.C. Sec. 1014, two years (see text, infra), his direction that the sentences under Counts One and Two be served concurrently, rather than consecutively, seems to us a contra-indication of prejudice against the accused.


author: BARNES, Senior Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Walter Earl EDWARDS, Appellant.
    No. 74-1903.
    United States Court of Appeals, Ninth Circuit.
    Sept. 19, 1974.

      Thomas C. Horne (argued), of Lewis & Roca, Phoenix, Ariz., for appellant.
    Ronald A. Lebowitz, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
   OPINION

Before BARNES, Senior Circuit Judge, CARTER, Circuit Judge, and LINDBERG, District Judge.

BARNES, Senior Circuit Judge:

Appellant appeals his conviction of knowingly and intentionally distributing on February 8, 1973, without a prescription, 31 grams of heroin, a narcotic drug “controlled substance,” in violation of 21 U.S.C. § 841(a)(1). The heroin was purchased by a government agent, Greenlee, from one Earl A. Jones (identified as defendant Edwards). The sale was arranged through the cooperation and assistance of an informant, one Sherfield. Also present was one Stephen Dennis Chesley, charged as co-defendant, who was also convicted of distributing the heroin, but did not appeal.

On February 14, 1973, a second purchase was arranged, but the substance delivered by “Jones” was not heroin. Attempts to locate “Jones,” the seller, were unsuccessful.

On April 23, 1973, Agent Greenlee saw and arrested appellant, after recognizing him as the seller, “Jones.”

The appellant’s sole defense was mistaken identity, i. e., that he, Edwards, was not “Jones.” The jury found he was.

Appellant states that the whole appeal may be summarized by three words, “Is Edwards Jones?” However, two errors are urged by appellant as reasons for reversal: First, did the trial court err in refusing to require the government to furnish the name of a second informant? and Second, was the defendant entitled to the cautionary instruction requested by his counsel, rather than the cautionary instruction given by the Court?

We answer both questions in the negative, and affirm the conviction.

I. A short resume of the facts may be helpful.

Appellant was positively identified by two persons: Agent Greenlee and the primary informer Sherfield. Two other special agents (Ivie and Parra) on surveillance outside the building when the February 8, 1973 sale took place, at about 7:30 p. m., saw the supposed seller, took a “fairly close look at him,” but could not “make a positive identification of him” due to darkness and the lack of street lights.

Sherfield had seen “Jones” on three occasions; Greenlee on two, Sherfield (the informer) had carefully noted “Jones” had a certain kind of hair, had a peak on his forehead, and that his complexion was unusual: — “a striking complexion for a black person, very clear, very clear, clean skin.” Sherfield had been an informer for about two years and in about ten cases, and made it a habit to pay “particular attention to the individuals involved that are under suspicion or under investigation.”

Greenlee saw “Jones” for about an hour on February 8, 1973, and was with him for over one-half hour on February 13 (or February 14), 1973.

On April 23, 1973, Agent Greenlee saw defendant Edwards in the Federal Building, recognized him as “Jones,” followed him outside the building and stopped him, asking for identification. “As soon as I approached him and looked straight at him, I told the other agents that this was definitely Earl Jones.”

When the defendant was asked for identification on April 23, 1973, he gave his name as Robert Terryl Allen. He showed two Social Security cards with that name on them; and one with the name Ishmael Ali Muhammad. Appellant also had an envelope on him addressed to Ishmael Ali Muhammad from “E. Jones, P. 0. Box, Philadelphia, Penn.” After arrest, and having been notified of his rights, appellant “Jones” said his name was Walter Earl Edwards.

II. Naming of Informants.

Appellant’s counsel moved to have the government disclose the name of any person or persons who furnished evidence that defendant Edwards possessed heroin for sale. The government had disclosed when appellant had sought bail, that “Agents advise that defendant sells from 2-4 oz. of heroin in the Phoenix area on a weekly basis.” Appellant charged the information came from informant SN 420005. Appellant also charged that a second informant SN 420003 “set up and was present at the meeting between Jones and Greenlee.” (C.T. 32-33)

Appellant conceded below that under some circumstances, the government has the privilege to withhold the identity of informants. This, because of the language in the leading case of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

That case holds that “[w]here the disclosure of an informant’s identity . is relevant and helpful to the defense of an accused,” the trial court may require disclosure. Id. at 60-61, 77 S.Ct. at 628. On the other hand, the opinion is authority only on the particular facts existing in the case then ruled upon. In Roviaro, the informer “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.” Id., at 55, 77 S.Ct. at 625. “Under the circumstances [there] present” the Supreme Court held the trial court erred in refusing to require the government to name the informer.

The trial judge here originally ordered the government to disclose the identity of both informants (C.T. 44); later changed his ruling to require disclosure of informer SN 420003, but quashed his order as to informer SN 420005 (C.T. 48), and reaffirmed his order quashing two days later (C.T. 49). Informer SN 420003 was the witness Sherfield.

These orders were made in the proper exercise of the court’s judicial discretion, and there was no abuse of that discretion in the court so ruling. The Supreme Court has emphasized that

“ . . .no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U.S. at 62, 77 S.Ct. at 628 (emphasis added).

Cf. also: United States v. Connolly, 479 F.2d 930 (9th Cir. 1973); United States v. Alvarez, 472 F.2d 111 (9th Cir. 1973); United States v. Alvarez, 469 F.2d 1065 (9th Cir. 1972).

“A suspicion that an informer may be of some help is not sufficient to overcome the public interest in the latter’s protection. United States v. Kelly, supra, 449 F.2d [329] p. 330; United States v. Estrada, supra” [441 F.2d 873]. 472 F.2d at 113 (emphasis added)

The government complied with the court’s order, and appellant failed to meet his burden of proof as to the necessity to disclose the identity of the second informer.

III. Instructions.

We turn to appellant’s charge of error in instructing the jury as to the care they must exercise in considering identification evidence.

The defendant requested but one instruction. It was given in toto as to paragraphs one and three. Paragraph two, as requested, read:

“In considering the identification testimony, you are to keep in mind that such testimony should be considered with great caution. No class of testimony is more uncertain and less to be relied on than that as to identity.” (C.T. 71)

The trial judge struck the second sentence of this paragraph, but added the words “and weighed with great care,” to the first sentence of paragraph two.

Appellant’s counsel, at trial, cited as authority for the whole proposed instruction “Devitt & Blackmar, § 11.32 (as modified) United States v. Edward, 439 F.2d 150, 151 (3rd Cir. 1971).” The instruction, as offered, bore but a slight resemblance to Devitt & Blackmar’s § 11.32.

In United States v. Edward, supra, the defendant attacked the court’s failure to give the admonition “that identification evidence should be considered with great caution.” The court held the lack of such customary language was cured by the language here requested and deleted by the court. It did not hold that the language requested must or should be used.

Further, the Third Circuit itself commented (later in the same year it decided Edward, supra) in United States v. Barber, 442 F.2d 517 (1971) that the language herein stricken was requested in Cullen v. United States, 408 F.2d 1178 (8th Cir. 1969), was refused by the trial court, and that such refusal was not error because of other adequate instructions. (Barber, supra at 526) A thorough discussion then appears, concluding with the indented paragraph on page 528 of Barber, which is presented verbatim in Devitt & Blackmar, 1973 Pocket Part, pp. 99 and 100.

In Amsler v. United States, 381 F.2d 37 (9th Cir. 1967), the court said:

“A court is not bound to accept the language of a requested instruction proffered by counsel nor to give a proposed requested instruction if the court gives it in substance.” (Id. at 52)

And in Rivers v. United States, 368 F.2d 362 (9th Cir. 1966), the court said:

“If proper and adequate instructions are given, defendant has no right to have his choice of language used in the way he prefers it. Tucker v. United States, 151 U.S. 164, 170, 14 S.Ct. 299, 38 L.Ed. 112 (1893).” 368 F.2d at 364.

We hold the instruction given was adequate and not prejudicial to defendant in any way.

The remaining discussion in appellant’s brief as to the lack of a “lineup” to permit identification of the defendant by the surveillance officers (who would not testify that the defendant was Jones because their observation of him was at night, and made at varying distances); and the complaint that the informer Sher field (revealed to counsel for appellant by court order) refused to voluntarily appear at defendant’s counsel’s office to face Edwai’ds (the person he identified as “Jones” on the two purported heroin “buys”), are better arguments before a jury than to this court. Suffice it to say no error appears.

Defendant received a fair trial, and was convicted by a properly instructed jury.

We affirm.

       Honorable William J. Lindberg, Senior Judge, Western District of Washington, sitting by designation.

      . We note the fact that trial counsel for appellant voluntarily brought out the fact (sic) that “people who sell drugs . . . use pseudonyms, false names.”


author: CLARK, Circuit Judge:

text:
    Jan BURES, Plaintiff-Appellee, v. The HOUSTON SYMPHONY SOCIETY, Defendant-Appellant, Houston Professional Musicians Association, Local No. 65, Lawrence Foster and Paul Ellison, Defendants.
    No. 74-2605
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 11, 1974.
    Robert S. Bambace, Neil G. Martin, Houston, Tex., for defendant-appellant.
    Ronald D. Cohen, Houston, Tex., for plaintiff-appellee.
    W. Wiley Doran, Houston, Tex., for Local No. 65.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 13, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   CLARK, Circuit Judge:

Appellee Bures, a utility French horn player, filed suit in the United States District Court for the Southern District of Texas for damages and equitable relief against his employer, the Houston Symphony Society (Symphony), and his union, the Houston Professional Musicians Association, Local No. 65 (Union), alleging that his employment rights under the union contract were prejudiced by the conduct of the Symphony and the Union.

Pursuant to the terms of a collective bargaining agreement entered into by the Symphony and the Union, the Symphony may elect not to renew the contract of a musician whom the Symphony conductor finds to be lacking in musical competence. The conductor must give written notice of non-renewal to the musician, who, in turn may appeal to the Players Committee, a group composed of nine musicians chosen by the members of the orchestra. The decision of the Players Committee is final and binding. Accordingly, the conductor notified Bures in writing of the proposed termination of his employment. Bures appealed to the Players Committee, which requested that he audition before it. Bures refused to appear. After further investigation, the committee denied the appeal.

The district judge granted a preliminary injunction restraining the defendants from discharging Bures after concluding that Bures had demonstrated a reasonable probability of success upon a hearing on the merits, having offered at least a prima facie case of violation of the duty of fair representation by the Union, and that irreparable injury would result if a preliminary injunction was not ordered. The record in this case contains no evidence of a breach by the Union of its duty to fairly represent the appellee, nor does it disclose that ap-pellee would have suffered irreparable injury if the injunction had not been ordered.

The district judge apparently misconstrued the requirements governing a union s duty of fair representation. In determining the validity of a grievance, a union is not required, as intimated by the district judge, to employ those due process procedures necessary to satisfy the Fourteenth Amendment. In the absence of some unusual circumstance, a grievance-procedure agreement between union and private employer involves no state or federal action, therefore neither the Fourteenth or Fifth Amendments would be applicable. See, e. g., United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); and Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

“[TJhere is no requirement of formal procedures. The fiduciary principle precludes arbitrary conduct, but it must not be stretched so as to ‘judicialize’ the conduct of the affairs of the Union, and to cut athwart a common sense and practical approach toward resolution of problems and disputes that is fair in its essence without being rigid in its procedures.” Waiters Union, Local 781 v. Hotel Ass’n, 498 F.2d 998, 1000 (D.C.Cir. 1974). “[A] breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967) . “A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953). This rule of allowing unions discretion in the adoption and application of grievance procedures has been adhered to by this circuit in prior decisions. E. g., Turner v. Air Transport Dispatchers’ Ass’n, 468 F.2d 297 (5th Cir. 1972) (Unions have considerable discretion to control the grievance and arbitration procedure.); and Stewart v. Day & Zimmerman, Inc., 294 F.2d 7 (5th Cir. 1961) (Union officials are given wide discretion and latitude in representing employee grievances.). •

The district judge concluded that the Players Committee failed in its duty to appellee by agreeing to deny his appeal after only a perfunctory investigation in exchange for the conductor’s guaranty that another musician would be hired to replace the appellee. However, the record reveals only that the replacement guaranty was a condition precedent to the committee’s agreement to investigate appellee’s musical capabilities. There is no evidence that the committee’s subsequent evaluation of appellee was tainted by its extraction of this collateral agreement. The proof does disclose that ten months prior to the present incident, the conductor similarly notified Bures of his dismissal and Bures appealed to the Players Committee. At this time the committee learned that if Bures’ appeal was denied the Symphony did not plan to replace him with another horn player. Thereupon, the committee, without investigation, upheld Bures’ appeal and his employment continued. While this insistence upon an extraneous guarantee of maintaining the French horn section at its six-player level was detrimental to the Symphony’s rights, it does not, without more, establish arbitrariness, discrimination or bad faith on the part of the local union in assessing the appellee’s competence.

To meet his burden of showing a reasonable probability of success upon the merits, Bures must prove arbitrary or bad faith conduct (the absence of honest purpose and judgment or the presence of hostility or discrimination) by the union. Vaca v. Sipes, supra, 386 U.S. at 193, 87 S.Ct. at 918. His proof of unfair representation must demonstrate “substantial evidence of fraud, deceitful action or dishonest conduct.” Amalgamated Ass’n of Street Employees v. Lockridge, 403 U.S. 274, 299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473 (1971), reh. denied, 404 U.S. 874, 92 S.Ct. 24, 30 L.Ed.2d 120 (1972). The subjective suspicions aroused by the Players Committee’s actions do not rise to this level.

The district judge further erred in concluding that appellee would suffer irreparable injury if not granted the preliminary injunction. Appellee proved only that he will suffer loss of wages under the contract during the period prior to a decision of this controversy upon the merits. If he should prevail on the merits, the sum of earnings lost can be easily ascertained and granted to him. Appellee has failed to meet his burden of showing that he will suffer irreparable injury for which an adequate remedy at law does not exist. See Brittingham v. United States Commissioner of Internal Revenue, 451 F.2d 315, 318 (5th Cir. 1971).

We expressly pretermit any decision as to the Players Committee’s status as an agent of the local union.

The preliminary injunction appealed from is

Vacated.

      . A list of highly technical musical questions relating to Bures’ musical competency were drawn up and asked individually to the other five members of the French horn section and to two members of the brass section wlio were familiar with Bures’ playing abilities. After reviewing the responses to these questions, the Committee, by secret ballot, voted to deny his appeal.