author: MacKINNON, Circuit Judge: WILBUR K. MILLER, Senior Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHIP SHAPE MAINTENANCE CO., INC., Respondent.
    No. 71-1849.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 22, 1972.
    Decided Dec. 1, 1972.
    Wilbur K. Miller, Senior Circuit Judge, dissented in part and concurred in part.

      Mr. Jonathan G. Axelrod, Atty., N. L. R. B., with whom Mr. Marcel Mallet-Prevost, Asst. Gen. Counsel, and Mrs. Nancy M. Sherman, Atty., N. L. R. B., were on the brief, for petitioner.
    Mr. Michael E. Jaffe, Washington, D. C., for respondent. Messrs. Allen G. Siegel and Lee M. Modjeska, Washington, D. C., were on the brief for respondent.
    Before WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN and Mac-KINNON, Circuit Judges.
   MacKINNON, Circuit Judge:

The National Labor Relations Board (Labor Board) has petitioned this court for enforcement of a remedial order entered against the Ship Shape Maintenance Company (hereinafter the “Company”), which resulted from the Labor Board’s finding that the Company had violated certain unfair labor practice provisions of the National Labor Relations Act, as amended (N.L.R.A.). The Company has challenged both the sufficiency of the evidence supporting the Labor Board’s unfair labor practice determinations and the propriety of a portion of the Board’s remedial order. For the reasons discussed below, we grant enforcement of the Labor Board’s order, as modified by our rejection of its proposed bargaining order.

I

The Company is a Maryland corporation which provides janitorial services in approximately 35 office buildings in Washington, D. C. On October 19, 1969, the Company obtained the contract to clean the building at 500-550 12th Street, S.W. (hereinafter the “500-550 building”), and it commenced work at this location on the evening of October 20. The nature of the Company’s business is such that it generally has a high rate of employee turnover. It employs approximately 600 persons at all of its locations. During 1969, it employed about 1800 different individuals, only 300 of whom were relatively permanent employees, to fill these 600 positions. Between January 1, 1970, and July 9, 1970, it employed 149 different persons at the 500-550 building, with an average work complement of 35-40.

Before the Company obtained the 500-550 building contract, Service Employees International Union, Local 536, AFL-CIO (hereinafter the “Union”) had been engaged in a campaign to organize the employees of the predecessor supplier of janitorial services there. When the Company assumed its cleaning duties, the Union altered its organizing campaign to concentrate on the new Company personnel. Within several days, the Union obtained authorization cards ostensibly signed by 17 Company employees.

On October 24, the Union wrote to the Company, claiming to represent a majority of the 28 statutory “employees” at the 500-550 building and demanding recognition. The Company did not respond to the Union’s request. Simultaneous with its letter to the Company, the Union filed a representation petition with the appropriate Regional Office of the Labor Board, requesting a representation election among the Company employees at the 500-550 building. The Regional Office mailed notification of the Union’s petition to the Company on October 27.

Sometime during November, 1969, Company President James Netterstrom decided to utilize the 500-550 building as a training facility for new employees, before transferring them to other locations where the Company performs janitorial services. However, at no time did Netterstrom or the Company’s attorneys reveal to the Labor Board or to the Union that the Company considered the 500-550 building to be a training site and that, consequently, employees would work there only temporarily prior to being reassigned to other Company locations. Nor did the Company ever disclose this decision to the realty management firm with which it had contracted to clean the 500-550 building, or to the Company employees working there.

On December 2, the Company and the Union executed a stipulation for certification consent election agreement, which was approved by the Board’s Regional Director on December 3, covering the 500-550 building employees of the Company. This stipulation limited voting eligibility to those employees working in the proposed unit during the week ending November 22, excluding “any employees who have since quit or been discharged for cause.” The election was scheduled for the evening of January 9, 1970, in the basement storeroom of the 500-550 building.

On December 5, 1969, Netterstrom mailed to the Regional Office the list of employees required under the Labor Board’s “Excelsior” doctrine. This list, which contained 32 names, purported to cover the Company’s employees at the 500-550 building as of November 22, 1969.

By January 2, 1970, one week before the scheduled representation election, 16 of the 32 persons named on the Excelsior list had left the Company’s employ for reasons not at issue here. On the evening of January 2, 15 of the 16 persons on the Excelsior list who were still in the company’s employ worked their final shift at the 500-550 building. Three of these persons quit on that day, and two more were terminated for reasons not relevant here. The remaining 11 persons on the Excelsior list were informed on January 2 that they were being transferred to other Company locations. One other employee who had been hired into the 500-550 building unit after November 22, 1969, and who was therefore not on the Excelsior list or eligible to vote in the representation election, was also included in the transfer order.

All but one of the 11, a supervisor, were ordered to report on Monday evening, January 5, to one or another of the other buildings where the Company performed cleaning services. Two of these employees did not report for work as ordered, and they never worked for the Company again. Eight reported to their new assignments on January 5, and were working at their new locations on the date of the January 9 election. Subsequently, one of these eight quit at the end of January, 1970, and another quit in March, 1970. During the week of January 5, 1970, the Company performed its chores at the 500-550 building with a full complement of approximately 30 employees, all of whom had been hired after the November 22, 1969, representation election eligibility date.

On January 9, 1970, the Labor Board’s election agent endeavored to conduct the scheduled representation election, despite notification from the Company’s attorney that it considered none of the employees on the Excelsior list eligible to vote, due to the fact that all of the named individuals were no longer employed at the 500-550 building. Only one person named on the Excelsior eligibility list appeared, . and she was only permitted to cast a challenged ballot. No other persons voted in the election.

Shortly after the election, the Union filed timely objections to conduct which allegedly affected the results of the election. On January 19, 1970, the Union filed an unfair labor practice charge with the Labor Board, alleging violations of sections 8(a)(1), (3), and (5) of the N.L.R.A., and a complaint was issued pursuant to this charge. The election objections were consolidated with the unfair labor practice complaint “for the purpose of hearing, ruling and decision by a Trial Examiner.”

In July, 1970, a hearing was held before Trial Examiner Benjamin Blackburn, wherein the above-described factual circumstances were presented. Company President Netterstrom admitted during his testimony that not he, but Melvin Shumaker, general manager, operations manager, and Company vice president, made the actual decision to transfer the employees in question. Netterstrom indicated that only Shu-maker really had personal knowledge of the particular reasons underlying individual transfer selections. However, despite the fact that the General Counsel of the Labor Board subpoenaed Shumaker, he did not appear in response to the subpoena; neither was he called as a witness by the Company.

The Trial Examiner determined that the Company violated sections 8(a)(1) and (3) of the N.L.R.A., by transferring 10 employees on January 2, 1970, from the 500-550 building in order to remove all remaining eligible voters from the proposed unit and thus preclude the holding of the Board representation election on January 9, 1970. The Trial Examiner, however, dismissed the section 8(a)(5) part of the complaint, since he concluded that only 14 of the 17 authorization cards proffered by the Union were in fact valid, thus causing the Union to fall one vote short of the requisite majority of the 28 statutory “employees” who were found to have been employed in the appropriate unit on the date the rejected demand for recognition had been made by the Union.

The Labor Board completely affirmed the Trial Examiner’s 8(a) (1) and (3) determination, concerning the Company’s discriminatory transfer of all eligible voters on January 2. However, it reversed the Examiner’s section 8(a)(5) finding. The Board validated all 17 of the Union’s proffered authorization cards, and it concluded that the Company violated section 8(a)(5) by refusing to accede to the Union’s demand for recognition in October, 1969.

The Labor Board adopted the Trial Examiner’s proposed remedial order which ordered the Company to cease and desist from violating the N.L.R.A. and which affirmatively ordered the Company (1) to offer those employees who were discriminatorily transferred in violation of the Act and who were still in the Company’s employ, immediate transfer back to their former positions at the 500-550 building, discharging, if necessary, presently employed persons; (2) to make whole all eight discriminatorily transferred employees who remained in the employ of the Company following their transfer, for any losses they may have sustained as a direct result of the Company’s illegal action; (3) to bargain, upon request, with the Union concerning the wages, hours, and working conditions of the employees in the appropriate bargaining unit at the 500-550 building; and (4) to post appropriate notices.

The immediate enforcement action was necessitated by the Company’s refusal to comply with the Labor Board’s remedial order.

II

The Company has asserted that there is insufficient evidence in the record to support the Labor Board’s unfair labor practice findings. However, we conclude that there is adequate factual basis for the 8(a)(1) and (3) determination of the Board, which adequately supports the modified remedial order which we are enforcing.

Although there is no direct evidence of the Company’s illegal discriminatory intent with respect to its preelection transfer of all. of the eligible voters who then remained in the 500-550 building unit, there is substantial evidence in the record considered as a whole to support its 8(a)(1) and (3) determination. See section 10(e) of the N.L.R.A., 29 U.S.C. § 160(e) (1970); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). See also International Union, United Automobile, Aerospace and Agricultural Implement Workers v. N. L. R. B., 129 U.S.App.D.C. 196, 200, 392 F.2d 801, 805 (1967), cert. denied, 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968).

It would indeed be the unusual case in which the link between the [discriminatory action] and the [protected] activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the Board is free to draw any reasonable inferences.

N. L. R. B. v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965).

The Company was aware of the Union’s claimed majority status concerning the 500-550 building employees by the latter part of October, 1969. Sometime in November of 1969, Company President Netterstrom decided to utilize this building as a training facility, which would necessitate the regular transfer of the employees working there to other building locations as they became adequately trained. Nevertheless, when the Company thereafter conferred with Union representatives and a Labor Board agent to arrange for the representation election requested by the Union, the Company did not inform them of the new personnel policy at the 500-550 building, notwithstanding the fact that the new policy’s concomitant high rate of regular turnover might greatly affect the composition of the proposed unit. Since the agreed-upon election date of January 9, 1970, was approximately a month and a half after the November 22, 1969, voter eligibility date, it should have been obvious to the Company that its new policy could affect the election — as subsequent events demonstrated — and it was reasonable for the Trial Examiner and the Labor Board to view the Company’s silence on this point as some evidence of bad faith on its part.

The timing and actual composition of the transfers similarly support the Labor Board’s determination regarding sections 8(a)(1) and (3). Only one week before the scheduled representation election, the Company transferred every single eligible voter out of the 500-550 building unit, yet only one ineligible employee was included in the transfer order. This is certainly strong indication of a Company desire to frustrate entirely the holding of the scheduled election, thereby depriving the Union and the employees of the representation opportunity which they sought. Furthermore, as the Labor Board properly recognized, it was justifiable for it to draw an adverse inference from the fact that Shumaker, the Company official with actual knowledge of the specific reasons for the particular transfers, refused to appear to testify, despite the fact that he was subpoenaed. See International Union, United Automobile, Aerospace and Agricultural Implement Workers v. N. L. R. B., 148 U.S.App.D.C. 305, 311-315, 459 F.2d 1329, 1335-1339 (1972) and cases cited therein; N. L. R. B. v. A.P.W. Products Co., 316 F.2d 899, 903 (2d Cir. 1963).

We therefore find that substantial evidence on the record considered as a whole supports the Labor Board’s 8(a)(1) and (3) determination, concerning the Company’s unlawful effort to frustrate the holding of the representation election which the-Union had requested.

Ill

Although we have affirmed the Labor Board’s finding regarding sections 8(a) (1) and (3), and are therefore enforcing the portions of its remedial order pertaining to this unfair labor practice violation, we are unable to grant enforcement to the Board’s proposed bargaining order.

The controlling principles to be applied concerning the propriety of bargaining orders in eases of this type, were enunciated by the Supreme Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Although the Court approvingly noted the Labor Board’s recognition of the fact that “secret elections are generally the most satisfactory — indeed the preferred ■ — -method of ascertaining whether a union has majority support,” it indicated that bargaining orders based upon majority authorization card support would be appropriate in certain situations to remedy section 8(a)(5) violations which were accompanied by other independent unfair labor practices. See 395 U.S. at 610-615, 89 S.Ct. 1918, 23 L.Ed.2d 547. However, the Court expressly noted that bargaining orders would not be appropriate in all such cases, and it carefully delineated the factors which the Labor Board must consider in determining whether a bargaining order should issue in a particular case.

[T]he Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election * * * by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue * * *.

The Court emphasized that “there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order.” 395 U.S. at 615, 89 S.Ct. at 1940.

When the Gissel Packing standards are applied to the facts of the instant case, it becomes apparent that the Labor Board’s bargaining order was improperly issued, and it must therefore be denied enforcement. The violation of sections 8(a)(1) and (3) which the Company committed was not of such a substantial nature, considering all of the relevant circumstances, to warrant issuance of a bargaining order.

We are cognizant of the fact that the Company’s discriminatory transfer of all eligible voters one week before the representation election scheduled for January 9, 1970, effectively rendered the meaningful holding of that particular election impossible. However, this does not mean that the effects of this unfair labor practice were sufficiently pervasive and lingering to warrant a determination that a subsequent election could not be held which would be reasonably free from the adverse influence of the Company’s unlawful action.

No overt anti-union animus on the part of the Company was demonstrated to any of its employees. All of them were merely informed that they were being transferred to other Company locations as a result of an apparently valid change in Company operating procedures. Furthermore, it is important to note that the record indicates no history of other anti-union behavior on the part of the Company. Under these circumstances, there is clearly no reason to believe that there will be any further unfair labor practice violations by the Company in the future. We therefore conclude that “the possibility of erasing the effects of past practices and of ensuring a fair election * * * by the use of traditional remedies,” which we herein enforce, is so strong as to warrant our rejection of the Labor Board’s proposed bargaining order in favor of the “preferred” election process. See N.L.R.B. v. Gissel Packing Co., supra, 395 U.S. at 602, 614, 89 S.Ct. 1918, 23 L.Ed.2d 547. Other considerations support our determination.

It must be carefully remembered that the Gissel Packing decision “placed bargaining orders based on a card majority in a special category: an extraordinary remedy available to the Board to overcome the polluting effects of the employer’s unfair labor practices on the electoral atmosphere. * * * It is not, therefore, the type of remedy which is automatically entitled to enforcement at any time after the occurrence of the unfair labor practice.” N.L.R.B. v. American Cable Systems, Inc., 427 F.2d 446, 448 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 356, 27 L.Ed.2d 266 (1970). See Clark’s Gamble Corp. v. N.L.R.B., 422 F.2d 845, 847 (6th Cir.), cert. denied, 400 U.S. 868, 91 S.Ct. 100, 27 L.Ed.2d 108 (1970). Although normal employee turnover in a proposed bargaining unit is not generally sufficiently ground for refusing to enforce an otherwise valid bargaining order, we believe that the extraordinary rate of turnover indigenous to the Company’s 500-550 building operations greatly strengthens our conclusion that the adverse effects of the Company’s unfair labor practice violation concerning sections 8(a)(1) and (3) should be reasonably and adequately dissipated, prior to the holding of a new representation election, through the utilization of the traditional remedies which we are enforcing, thereby obviating the necessity for resort to a bargaining order. Furthermore, the rights of the large number of employees hired subsequent to the Company’s commission of the unfair labor practice violation must be considered.

“[T]he purpose of a remedy must be restoration of the status quo to the greatest extent practicable; however the basic purpose of restoring the status quo is to redress the injury done to employees.” Local 57, International Ladies Garment Workers Union v. N.L.R.B., 126 U.S.App.D.C. 81, 86, 374 F.2d 295, 300, cert. denied, 387 U.S. 942, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967), and see cases cited therein. Where a remedial order has the primary effect of negating the rights of current employees rather than furthering them, it defeats, rather than effectuates, the policies of the N.L.R.A. In the instant case, enforcement of the Labor Board’s proposed bargaining order would impose representation upon a current unit of employees, the vast majority of whom were neither employed by the Company at the time of its unfair labor practice violation nor meaningfully affected by its commission. Such enforcement would ignore the fact that the N.L. R.A expressly protects the right of employees to refrain from organizational activities if they so desire.

We believe that the proposed bargaining order would not be remedial, but rather only punitive — i. e., it would merely punish the Company for its unfair labor practice indiscretion. “It has been established, however, that the purpose of Board remedies is to rectify the harm done the injured workers, not to provide punitive measures against errant employers. ‘[T]he power to command affirmative action is remedial, not punitive.’ Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 * * * (1940).” Local 57, International Ladies Garment Workers Union v. N.L.R.B., 126 U.S.App.D.C. 81, 89, 374 F.2d 295, 303, cert. denied, 387 U.S. 942, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967). See Local 60, United Brotherhood of Carpenters and Joiners of America v. N.L.R.B., 365 U.S. 651, 655, 81 S.Ct. 87, 6 L.Ed.2d 1 (1961). We are therefore unable to grant enforcement to the Labor Board’s proposed bargaining order.

The remedial order of the Labor Board is hereby enforced, except with respect to those portions imposing a direct bargaining obligation upon the Company. The case is otherwise remanded to the Board with instructions for it to schedule an appropriate representation election for the Company’s 500-550 building unit on an expeditious basis.

Judgment accordingly.

WILBUR K. MILLER, Senior Circuit Judge:

I dissent from Section II of the majority opinion, and concur in Section III thereof.

      . Ship Shape Maintenance Co., Inc., 189 NLRB No. 58, 1971 CCH NLRB ¶ 22,879 (1971).

      . See section 2(3) of the N.L.R.A., 29 U.S.C. § 152(3) (1970), for the statutory definition of the term “employee.”

      . Some of these other Company locations have already been organized, while others have not.

      . The bargaining unit was defined to include :
      All employees employed by the Employer at its 500-550 12th Street, S.W., Washington, D.C. location working as maids, porters, janitors, charwomen, waxers and buffers but excluding office clerical employees, guards and supervisors as defined in the Act.
      The Company conceded that this unit was appropriate for collective bargaining, and the Labor Board agreed.

      . In Excelsior Underwear, Inc., 150 NLRB 1236 (1966), the Board announced a new practice of requiring employers to provide the names and addresses of eligible employees to candidate labor organizations prior to Board representation elections. This policy was approved by the Supreme Court in N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969).

      . This supervisor was told on January 2 to report for work at another building on January 7, instead of January 5. She reported to the new location as ordered, but quit about a week later for reasons immaterial to this case. See note 10, infra.

      . Two or three other employees of the Company appeared at the polls, but after ascertaining that they had all been hired after the November 22, 1969 eligibility date, the Labor Board election agent informed them that they were ineligible to vote.

      . 29 U.S.C. § 158(a) (1970) provides:
      (a) It shall be an unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: . . .
      * # ;}; *

        (5) to refuse to bargain collectively wit]» the representatives of his employees, subject to the provisions of section 159(a) of this title.
      The pertinent part of 29 U.S.C. § 357 (1970) is set out in note 30, infra.

      . Under the Labor Board's Irving Air Chute rule, where the Board has held an election which the union has failed to win, pre-election violations of sections 8(a)(1) or (5) of the Act will not be remedied by a bargaining order, which the Union requested in the instant case, unless the election is set aside. Irving Air Chute Co., Inc., Marathon Division, 149 NLRB 627, 629-630 (1964), enfd., 350 E.2d 170 (2d Cir. 1965). This is the reason the Union filed objections seeking to hnve the January 9, 3970 representation election set aside.

      . The eleventh transferee was a “supervisor” within the meaning of section 2(11) of the N.L.R.A., 29 U.S.C. § 152 (11) (1970), who was therefore ineligible to vote in the “employee” representation election. Section 2(3) of the Act, 29 U.S.C. § 152(3) (1970) defines “employee” so as to expressly exclude “any individual employed as a supervisor.”

      . The Trial Examiner concluded that 3 of the proffered authorization cards were not adequately authenticated.

      . The Labor Board based its bargaining order in substantial part upon its finding of a section 8(a)(5) violation by the Company. Although the Trial Examiner had recommended dismissal of the section 8(a) (5) portion of the complaint, due to his determination that the Union had not obtained authorization cards from a majority of unit employees, he had still recommended issuance of a bargaining order, since he concluded that such a remedy was necessary to rectify the continuing effects of the Company’s violation of sections 8(a) (1) and (3) of the Act. In its decision, the Labor Board expressly indicated that, contrary to the view of the Trial Examiner, the facts of this case did not warrant issuance of a bargaining order based upon the 8(a)(1) and (3) violation alone. See Ship Shape Maintenance Co., Inc., 189 NLRB No. 58, 1971 CCH NLRB ¶ 22,879 (1971) slip op. at 2 n. 3, 5.

      . Since we are denying enforcement of the bargaining order portion of the Labor Board’s remedial order (see Part III of this opinion, infra), there is no need for us to resolve the highly controversial section 8(a) (5) refusal to bargain findings which formed the basis for the Labor Board’s bargaining order. The Board’s 8(a) (1) and (3) determination, which we herein affirm, forms an adequate basis to support the remaining parts of the remedial order which we are wholly enforcing. See note 18, infra.

      . We must remember that “‘[t]he judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body’ * * * [, for] the findings of the Board and the Trial Examiner, especially when, as in the instant case, they [have] concurred], are not lightly to be disregarded.” International Union, United Automobile, Aerospace and Agricultural Implement Workers v. N.L.R.B., 129 U.S.App.D.C. 196, 200, 392 F.2d 801, 805 (1967), cert. denied, 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968).

      . See, e. g., N.L.R.B. v. Sutherland Lumber Co., 452 F.2d 67, 69 (7th Cir. 1971): “The abruptness of a discharge and its timing are persuasive evidence as to motivation.” See also N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (2d Cir.), cert. denied, 355 U.S. 829, 78 S.Ct. 40, 2 L.Ed.2d 41 (1957). We believe that this same reasoning is applicable to a pre-election transfer of all eligible voters from a proposed bargaining unit.

      . See, e. g., N.L.R.B. v. Dinion Coil Co., 201 F.2d 484, 486 (2d Cir. 1952), wherein the court indicated that “the fact that * * * more than 90% of those discharged * * * were members of the union suffices to make not unreasonable the Board’s inference that respondent discriminated against union members * * * ”. In the instant case, over 90% . of those notified on January 2, 1970, that they were being transferred to other locations were eligible to vote in the representation election scheduled for January 9, 1970. The inference which could reasonably be drawn from this fact supports the Labor Board’s conclusion that the Company’s pre-election transfer decision was motivated, at least in part, by a desire to frustrate the statutory right of the eligible employees to take part in the scheduled representation election. See note 17, infra.

      . Although the Company has attempted to justify the imbalance between eligible and ineligible voters in the transfer group by arguing that the eligible voters had been at the training site (i. e., the 500-550 building) for a greater length of time than had been the ineligible personnel, we believe that the over-all record adequately supports the Labor Board’s adverse interpretation regarding this factor. Very strong support for the Board’s determination derives from the fact that none of the eligible voters had been provided with any pre-transfer indication that they might be so transferred. It is also informative that neither the Union nor the Board election agent was informed of the new Company policy prior to the time of its actual implementation one week before the scheduled representation election. Finally, the adverse inference which could reasonably be drawn from Shumaker’s refusal to testify concerning the specific reasons for the particular transfers provides additional support for the Board’s determination.

      . It is clear that the portions of the Board’s remedial order which we herein enforce are within the area of broad remedial discretion provided it in section 10(e) of the N.L.R.A., 29 U.S.C. § 160 (e) (1970). See Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); Virginia Electric & Power Co. v. N.L.R.B., 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943); Amalgamated Clothing Workers of America v. N.L.R.B., 125 U.S.App.D.C. 275, 281, 371 F.2d 740, 746 (1966); Office and Professional Employees International Union, Local 425 v. N.L.R.B., 136 U.S.App.D.C. 12, 19-20, 419 F.2d 314, 321-322 (1969). See note 13 and accompanying text, supra.

      . 395 U.S. at 602, 89 S.Ct. 1918, at 1934, 23 L.Ed.2d 547.

      . Although the Gissel Packing decision also noted that in “exceptional” cases where there have been extremely pervasive and substantial unfair labor practice violations, a bargaining order might properly be ordered by the Labor Board even in the absence of a section 8(a) (5) refusal to bargain violation, and without need of inquiry into the question of majority status, where such a remedial order would be the only available, effective remedy (see 395 U.S. at 613-614, 89 S.Ct. 1918, 23 L.Ed.2d 547), the Board expressly found that the instant case did not constitute such an exceptional situation to warrant application of this particular principle. See Ship Shape Maintenance Co., Inc., 189 NLRB No. 58, 1971 CCH NLRB ¶ 22,-879 (1971) slip op. at 2 n. 3. See also note 12, supra.

      . 395 U.S. at 614-615, 89 S.Ct. at 1940 (emphasis supplied). See New Alaska Development Corp. v. N.L.R.B., 441 F.2d 491, 494 (7th Cir. 1971).

      . Under the principles enunciated in Gissel Paching, “[t]he employer’s subjective motivation is [not] of controlling importance. Instead, attention must be focused on the casual relationship between the unfair practices and the election process.’* N.L.R.B. v. Drives, Inc., 440 F.2d 354, 364 (7th Cir. 1971), cert. denied, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1972).

      . Although we recognize that it is generally for the Labor Board, and not the reviewing courts, to make the determination of whether the circumstances of a particular case warrant issuance of a remedial bargaining order, see N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 612, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Pranks Brothers Co. v. N.L.R.B., 321 U.S. 702, 704, 64 S.Ct. 817, 88 L.Ed. 1020 (1944), we believe that our immediate resolution of the bargaining order issue is proper with respect to the case at bar, due to the simplicity of the factual circumstances involved and our desire to avoid further delay through needlessly protracted litigation. See N.L.R.B. v. Kostel Corp., 440 F.2d 347, 352 (7th Cir. 1971).

      . For the purposes of our evaluation of the appropriateness of the Labor Board’s proposed bargaining order under the Gis-sel Paelcing rules, we assume, arguendo, the correctness of the Board’s section 8(a) (5) determination. However, since we conclude that the factual circumstances of the instant case do not warrant enforcement of the proposed bargaining order even accepting the Board’s 8(a) (5) findings, we need not — and do not — resolve that complex and controversial refusal to bargain issue. See note 13, supra.

      . Some of the other Company locations are in fact already organized.

      . See Franks Brothers Co. v. N.L.R.B., 321 U.S. 702, 703-705, 64 S.Ct. 817, 88 L.Ed. 1020 (1944); N.L.R.B. v. Brown Specialty Co., 436 F.2d 372, 375 (7th Cir. 1971).

      . Between January 1 and July 9 of 1970, the Company employed 149 different individuals at the 500-550 building, with the average work complement being only 35-40.

      . In some unfair labor practice cases, “[t]he interests of the employees do not necessarily parallel the union’s and, therefore, should be separately considered.” N.L.R.B. v. Drives, Inc., 440 F.2d 354, 366-367 (7th Cir. 1971), cert. denied, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1972). This admonition is particularly apropos to the case at bar, since the Union never represented a substantial majority of the employees in the 500-550 building unit, even if all 17 of the proffered authorization cards were accepted — an issue not decided — and there has been extremely rapid post-unfair labor practice employee turnover.

      . Section 10(c) of the N.L.R.A., 29 U.S.C. § 160(c) (1970), only authorizes the Labor Board to require an unfair labor practice violator “to take such affirmative action * * * as will effectuate the policies of [the N.L.R.A.] * * * ” (emphasis supplied). Regarding the remedial authority of the Board, see eases cited in note 18, supra.

      . Section 7 of the Act, 29 U.S.C. § 157 (1970), provides, inter alia:

      Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of suoh activities * * * [emphasis supplied] .

      . Sections 1(b) and 2(c) of the Labor Board’s proposed order must therefore be deleted. See Ship Shape Maintenance Co., Inc., 189 NLBB No. 58, 1971 CCH NLRB ¶ 22,879 (1971) slip op. at 7-10.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    In the Matter of the Conviction of James J. Laughlin, Appellant. James J. LAUGHLIN, Appellant, v. UNITED STATES of America.
    Nos. 22996, 71-1142.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 12, 1972.
    Decided Dec. 19, 1972.
    Rehearing Denied March 1,1973.
    Certiorari Denied June 11, 1973.
    See 93 S.Ct. 2784.

      Mr. James J. Laughlin, pro se.
    Mr. James F. McMullin, Asst. U. S. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee in No. 71-1142. Mr. Oscar Alt-shuler, Asst. U. S. Atty;, also entered an appearance for appellee in No. 71-1142.
    Mr. Edmund L. Jones, Washington, D. C. , with whom Messrs. Milton W. King and Preston C. King, Jr., Washington, D. C., were on the brief for appellee Committee on Admissions and Grievances for the United States District Court.
    Before MacKINNON and WILKEY, Circuit Judges, and WILLIAM J. JAMESON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to Title 28, U.S.C. Section 294(d).

   PER CURIAM:

On appellant’s motion we heard argument on these two cases together because they are both based on the appellant’s long-continuing efforts to reverse his criminal convictions and resulting disbarment.

In No. 22,996 (the disbarment proceeding), Mr. Laughlin appeals from the December 20, 1969 order of the United States District Court for the District of Columbia disbarring him from the practice of law in the District of Columbia. His disbarment was based on final judgments of conviction entered in that court in two criminal cases: (1) on July 26, 1965 in Criminal No. 600-63, for conspiracy to obstruct justice and attempting to influence a witness in a criminal trial, and (2) on July 8, 1966 in Criminal No. 406-65, for perjury committed before the grand jury.

In No. 71-1142 (a coram nobis proceeding) Mr. Laughlin appeals from orders entered by the District Court on December 9, 1970 dismissing his complaint for collateral review of his two criminal convictions styled as a writ of error coram nobis, and on December 24, 1970 denying a motion for reconsideration of the foregoing that was based on an affidavit of personal bias by the trial judge against appellant. We affirm each of the orders of the District Court from which appeals were taken.

I. No. 22,996 — The Disbarment Proceeding

In his brief on this appeal, appellant contends that the Committee on Admissions and Grievances is not bound by the judgments of conviction in the District Court for the criminal offenses, as affirmed by this court, but rather that the Committee can itself assess those judgments and reach an independent decision of their validity and thereby reinstate appellant to active practice. He cites no authority in support of this assertion; indeed he pursues it no further than to state it and move on to his attack on the merits of his convictions.

Nonetheless, the proposition is at least an arguable one, for the controlling statute at the time of his convictions was not mandatory in its language:

When a member of the bar of the United States District Court for the District of Columbia is convicted of an offense involving moral turpitude, and a duly certified copy of the final judgment of the conviction is presented to the court, the name of the member so convicted may thereupon, by order of the court, be struck from the roll of the members of the bar, and he shall thereafter cease to be a member thereof.

However, at the time of his disbarment the statute had been amended to make its language mandatory. Section 199 of the District of Columbia Court Reform and Criminal Procedure Act of 1970 amended D.C.Code § 11-2103 to cover the transition period between the date of its enactment, July 29, 1970, and April 1, 1972, when supervision of the local bar was shifted from the U.S. District Court to the District of Columbia Court of Appeals. The amended statute, in effect on the date of appellant’s disbarment, provides:

If a final judgment of conviction is certified to the court, the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and he shall thereafter cease to be a member. Upon the granting of a pardon to a member so convicted, the court may vacate or modify the order of disbarment.

We need not decide, however, which of these statutes controlled the District Court’s exercise of its supervisory powers over the local bar, nor whether appellant’s construction of even the non-mandatory version is correct. Appellant conceded at oral argument that this appeal rests wholly on our evaluation of the propriety of his criminal convictions, and that if we deny his appeal in the coram nobis proceeding, No. 71-1142, then this appeal, too, must fail. Since his convictions were for obstruction of justice and perjury, two offenses which belie the basic character qualification required of a lawyer, his concession recognized the reality of his situation. We find no error either in his convictions or in the District Court’s orders appealed from in No. 71-1142 and the order of the District Court disbarring appellant is therefore affirmed.

II. No. 71-11U2 — The Coram Nobis Proceeding

A. Background

In Criminal No. 741-61, United States v. Forte, appellant served as counsel for Forte who was being tried on charges of procuring and attempting to procure abortions for a Jean Smith. The trial resulted in an acquittal of Forte on February 20, 1963.

During Forte’s trial appellant and Forte alleged that the arresting officer, Samuel Wallace, had attempted to “shake-down” Forte, and they demanded a grand jury investigation of Wallace’s alleged solicitation of bribery. During the course of the grand jury investigation subsequently held, one of the officers who had investigated the original abortion charges, Mrs. Bernice Gross, revealed the involvement of appellant and Forte in attempts to have her solicit false testimony from Mrs. Smith at Forte’s trial. After these relevations, Mrs. Gross was pressured into making several recorded telephone conversations with appellant. When he was called to testify before the grand jury, however, appellant denied having ever known or spoken with Mrs. Gross:

“Q. Do you even know Bernice Gross ?
“A. No, I wouldn’t say I know her if I saw her on the street. I heard her name because it came out during the trial. I would not know her if I met her on the street.
“Q. Have you ever talked to Bernice about this case ?
“A. At no time.
“Q. Ever talked to her on the telephone at all?
“A. No.”

United States v. Laughlin, 222 F.Supp. 264 (D.D.C.1963). The grand jury returned two indictments against appellant. In Criminal No. 599-63 (the perjury indictment) he was charged with perjury for his grand jury testimony regarding his knowledge of Mrs. Gross. In Criminal No. 600-63 (the obstruction and conspiracy indictment) he was charged with conspiracy to obstruct justice and with influencing and attempting to influence a witness in a criminal trial with respect to his and Forte’s and Mrs. Gross’ attempts to obtain false testimony from Mrs. Smith in connection with Forte’s triál.

No. 599-63, the perjury charge, came on for trial before Judge Youngdahl. After playing the tape recordings of the calls between Mrs. Gross and appellant in open court, cross-examination of her revealed that she had been coerced into making the recorded calls by threats of prosecution if she did not cooperate. Upon revelation of this information Judge Youngdahl ruled that the recordings were inadmissible and declared a mistrial. United States v. Laughlin, 222 F.Supp. 264 (D.D.C.1963).

Appellant then filed a motion to dismiss the indictments in both Nos. 599-63 and 600-63 because of the impropriety of the recorded telephone calls and the fact that they had all been played before the grand jury. On November 13, 1963 Judge Curran ruled on these motions, denying the motion regarding No. 600-63 (the conspiracy and obstruction indictment), but granting the motion to dismiss the indictment for perjury in No. 599-63. United States v. Laughlin, 223 F.Supp. 623 (D.D.C.1963). Judge Curran reasoned that without the recordings the Government in the perjury trial could present only the uncorroborated testimony of Mrs. Gross, and “[pjerjury cannot be proved by the uncorroborated testimony of one witness, since .the falsity of one person’s oath cannot be established by another person’s oath alone.” 223 F.Supp. at 625.

The Government requested reconsideration of this order arguing primarily that the telephone company records of the calls constituted sufficient corroboration of Mrs. Gross’ testimony concerning the calls to warrant at least trial on the question rather than dismissal of the indictment. Judge Curran denied this request, finding that the bare telephone records established no more than that calls were made between two numbers, and such records did not provide sufficient corroboration of the identity of the persons who had been parties to those calls to meet the special independent corroboration test for a perjury conviction. United States v. Laughlin, 226 F.Supp. 112 (D.D.C.1964). An appeal from this decision was noted, but was subsequently dismissed on the Government’s own motion.

In No. 600-63, the conspiracy and obstruction indictment, trial was had before Judge Hart. In this trial the tape recordings were admitted over appellant’s objections, Judge Hart having ruled that Mrs. Gross’ consent was freely given and not coerced. The resulting conviction was reversed by this court on appeal. Laughlin v. United States, 120 U.S.App.D.C. 93, 344 F.2d 187 (1965). We held that under the doctrine of collateral estoppel the issue of Mrs. Gross’ consent and the admissibility of the recordings had been decided adversely to the Government by Judges Youngdahl and Curran in the earlier perjury trial and that it was reversible error to have admitted them in the trial on the conspiracy and obstruction charges.

On retrial of the conspiracy and obstruction charges before Judge Jones, appellant was again convicted in No. 600-63. This conviction was affirmed on appeal in a long and carefully considered opinion authored by Judge Coffin of the First Circuit sitting by designation with a panel of this court. Laugh-lin v. United States, 128 U.S.App.D.C. 27, 385 F.2d 287 (1967). A petition for rehearing en banc was denied by the entire court, and the Supreme Court denied certiorari, 390 U.S. 1003, 88 S.Ct. 1245, 20 L.Ed.2d 103 (1968).

Following dismissal of the perjury indictment in No. 599-63, new proceedings were initiated before a different grand jury. Neither the tainted tape recordings nor the telephone company records were presented before this grand jury, yet a new perjury indictment was nonetheless returned in No. 406-65 on the basis of new independent evidence. Trial on this indictment before then District Judge Spottswood Robinson resulted in a conviction which was affirmed by this court. Petitions for rehearing en banc and for certiorari before the Supreme Court were denied. Laughlin v. United States, 128 U.S.App.D.C. 35, 385 F.2d 295 (1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1245, 20 L.Ed.2d 103 (1968).

Appellant subsequently filed Civil Action No. 1441-69, pursuant to 28 U.S.C. § 2255, collaterally attacking both his convictions in Nos. 600-63 and 406-65, and the substantiality of the direct review of those convictions in this court. This motion to vacate and set aside his two convictions and sentences was separated, and Judge Jones denied the request with regard to .No. 600-63, and Judge Robinson (acting pursuant to 28 U.S.C. § 291(c)) denied it as to No. 406-65. The opinions of both Judges Jones and Robinson are set out in the appendix to the Government’s brief on this appeal.

Both judges found that virtually all of the many contentions raised by appellant had been previously raised, argued, and decided at trial, on direct appeal, on the petition for rehearing, or at all three stages. Judge Rob'inson carefully examined the doctrine concerning collateral challenges under Section 2255 raising previously litigated issues and concluded

that my function is not to reconsider those claims if, in the exercise of a sound discretion, I should conclude that “the ends of justice would not be served by reaching the merits of the [present] application.”

Brief for appellee at 24 (citing Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) and quoting from Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)). Applying this standard to the Section 2255 motion before him with regard to the perjury conviction, he held:

In sum, all of petitioner’s current contentions have received extensive attention, at both the trial and the appellate levels, save only the complaint as to appellate review, and the latter seems clearly unavailing. It bears repeating that petitioner has had the advantage of duplicate scrutiny, at both levels, of the points common to the perjury and conspiracy cases. Thus trial and appellate judges in some number have examined petitioner’s current claims, and with complete unanimity have found them wanting. With the exhaustive consideration already given petitioner’s arguments, and with the single exception hereinafter considered, I am unable to see how the ends of justice will be served by still another undertaking to reexamine their merits in the light of legal principles that have since remained unchanged.

Brief for appellee at 25 (footnotes omitted). That one exception was the applicability of decisions of the Supreme Court, rendered subsequent to the appeals in the perjury conviction, that arguably affected appellant’s case. After examining this point, Judge Robinson rejected it too and denied appellant’s Section 2255 motion.

B. The Present Appeal

On August 20, 1970 appellant filed Civil Action No. 2503-70 attacking his convictions in a complaint styled as a writ of error coram nobis. Included in the complaint were allegations that Judge Jones had been improperly influenced by Judge Hart (whom appellant had previously charged with bias and personal prejudice against himself), so, with Judge Robinson now sitting on this court, the case was assigned to Judge Pratt rather than either of the trial judges as would have normally been the ease.

The Government filed a motion to dismiss the complaint on October 15, 1970, and on December 9 Judge Pratt granted the motion as follows:

Granted — assuming jurisdiction, the issues raised with one possible exception (appellate review) have all been raised in § 2255 motions decided by Jones, J. and S. Robinson, J. There must be an end to litigation and that point has been reached in these cases.

Appellant filed a motion for reconsideration of Judge Pratt’s December 9 order, and for reassignment of the case to another judge. The motion for reassignment was based on appellant’s attached “Affidavit of Bias and Prejudice.” Both motions were denied by Judge Pratt on December 24, 1970 with the notation: “Denied — supporting affidavit a fabrication.” This appeal from the December 9 and 24 orders followed.

1. Jurisdiction.

One ground alleged by the Government’s motion for dismissal was that the District Court was without jurisdiction to hear the case as a writ of error coram nobis. There is room for confusion on this point. Federal Rule of Civil Procedure 60(b) expressly abolished the writ of coram nobis in civil litigation in the federal courts, and the Reviser’s Note to 28 U.S.C. § 2255 reported that: “This section restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis.” However, Section 2255 applies only to prisoners presently in federal custody and the Supreme Court, in essence, revived the writ in criminal cases in which federal custody had terminated by holding in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), that Section 2255 did not wholly replace coram nobis.

Since appellant is no longer held in actual custody under his sentences, the Government contended below that appellant’s supervision under his parole board constitutes federal custody that makes Section 2255 rather than coram nobis the exclusive source of jurisdiction in the District Court. They urged a dismissal without prejudice to filing a new Section 2255 motion. In granting his dismissal on the merits, Judge Pratt “assum[ed] jurisdiction,” presumably, though not expressly, by treating the papers as a Section 2255 motion. The Supreme Court in Kaufman v. United States, 394 U.S. 217, 230-231, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), adopted the broad rationale in support of collateral review expressed by Judge Wright’s dissent in Thornton v. United States, 125 U.S.App.D.C. 114, 123, 368 F.2d 822, 831 (1966). Under such rationale and the Reviser’s intent in drafting Section 2255 to make that Section a restatement of the coram nobis procedures, any fine, technical distinction between coram nob-is and Section 2255 may properly be resolved by treating the two as substantially equivalent alternatives wherever, as here, this can be accomplished without contravening the express terms or doctrines of either procedure.

2. The standard of review.

Treating the case as a Section 2255 motion, the standards governing repetitive 2255 actions prescribed in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), and extensively discussed in Judge Robinson’s opinion on appellant’s prior 2255 motion, control our review of Judge Pratt’s order:

Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.
-X- -X X X X
(3) Even if the same ground was rejected on the merits on a prior application, it is open to the applicant to show that the ends of justice would be served by permitting the redetermination of the ground. If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair; we canvassed the criteria of a full and fair hearing recently in Townsend v. Sain, [372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770,] supra, and that discussion need not be repeated here. If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. Two further points should be noted. First, the foregoing enumeration is not intended to be exhaustive; the test is “the ends of justice” and it cannot be too finely particularized. Second, the burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground.

373 U.S. at 15-17, 83 S.Ct. at 1077-1078 (footnotes omitted). Thus for any ground of relief that was presented in appellant’s prior Section 2255 action and determined on the merits therein, rede-termination of that ground was dependent upon Judge Pratt’s exercise of his sound discretion to find that the “ends of justice” would be served thereby. Accordingly, we can reverse his decision on such grounds only upon finding an abuse of that discretion.

One of the points argued by appellant before this court was that Judge Pratt erred in failing to accord a hearing on this action. As set forth in note 11, supra, and the preceding paragraph, no hearing is required where the District Court finds either that the files and records of the case conclusively determine the issues raised, or that the grounds for relief have been previously determined on the merits and the “ends of justice” do not require redetermination. It is clear that Judge Pratt found both of these conditions satisfied and we hold that appellant has not carried his burden under Sanders of showing that that decision was in error. We conclude that no hearing was required in the circumstances of this case. Under Sanders, we need go no further, but we do so that we will consider all appellant’s argument, even though repetitious, in the hope of reaching a final decision.

3. Disposition of this appeal.

Appellant’s long, discursive, and frequently irrelevant briefs and memoranda present a serious challenge to careful, logical analysis. Yet even our most minute examination of the extensive materials filed in this case has failed to reveal a single point or issue that has not been argued, considered, and decided at some previous point — and generally in many such points — in appellant’s litigation. The sole remaining question to be decided is whether Judge Pratt abused his discretion by not finding that the ends of justice required re-determination of any of these issues.

As for the factual issues presented here, appellant has wholly failed to demonstrate that he has been denied a full and fair hearing on these questions. In his prior Section 2255 action no hearing was accorded by either of the two trial judges because of their findings that the files and records of the case conclusively disclosed that appellant was entitled to no relief. Both judges dismissed as wholly frivolous appellant’s contention that the direct appellate review of his convictions was in any way inadequate, and in the opinion reviewing the conspiracy conviction was an express finding that “the trial was conducted in an exemplary manner, with notable concern to protect the appellants’ rights.” 128 U.S.App.D.C. at 35, 385 F.2d at 295. We believe Judge Pratt properly concluded that no further review of any factual issues was necessary.

Only one of the legal questions raised by appellant here presents even an arguable claim for redetermination. Appellant contends that Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), decided subsequently to all prior proceedings except Judge Robinson’s Section 2255 opinion (and not mentioned therein), requires reconsideration of his collateral estoppel arguments. We find, however, that the issues decided in Ashe do not alter the principles of the collateral estoppel doctrine in any respect that would require reconsideration of the appellant’s convictions.

Ashe decided only (1) that the doctrine of collateral estoppel is embodied within the Fifth Amendment’s double jeopardy protection, and (2) that in applying the doctrine to a criminal conviction rendered on a general verdict, the evidence and arguments at trial must be closely examined to determine what specific factual issues were contested and decided thereby, thus establishing the estoppel. Here, the estoppel appellant seeks to establish concerns issues which were expressly considered and ruled upon by Judge Curran in deciding appellant’s motions to dismiss the indictments in Nos. 599-63 and 600-63. Thus there is no question of seeking to interpret a general verdict — the issues are clearly focused and were expressly decided in the proceedings before Judge Curran. 223 F.Supp. at 625-26. The other issue decided by Ashe is not relevant here at all.

We are left, then, with a simple issue concerning the application of the basic principle of collateral estoppel— “that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, supra, 397 U.S. at 443, 90 S.Ct. at 1194. This was precisely the doctrine applied by this court in reversing appellant’s first conspiracy conviction in No. 600-63, 120 U.S.App.D.C. at 95-98, 344 F.2d at 189-192, and in affirming his second conspiracy conviction, 128 U.S.App.D.C. at 33, 385 F.2d at 293.. It is also precisely the theory unsuccessfully urged by appellant at trial and on direct appeal from his perjury conviction in No. 406-65, and in his Section 2255 action with regard to all his convictions in both Nos. 600-68 and 406-65. Ashe has no effect whatsoever on this aspect of the doctrine and thus presents no intervening change in the law that would require re-determination of an issue that has already been so exhaustively examined in this litigation.

III.

Having reached the foregoing conclusions we comment briefly on the points raised in appellant’s current briefs which we have fully considered.

First, appellant contends that the Committee on Admissions and Grievances has the right to take issue with the judgments rendered in the criminal convictions if it is shown that they were entered in disregard of appellant’s rights. The general rule is that a judgment of conviction in federal court for a felony is binding upon the District Court and the Circuit Court of Appeals and is not subject to collateral attack in a disbarment proceeding. However, a collateral attack upon the judgments of conviction, of the type appellant postulates, is not involved here because we find that said judgments were not “entered in disregard of appellant’s constitutional rights.” Other aspects of the point are fully discussed and disposed of at pages 446-447, supra.

Second, appellant contends that the Government was collaterally es-topped from offering the telephone company record cards of the alleged long distance telephone calls between Mrs. Gross’ telephone and various Laughlin telephones because the same records were ruled inadmissible in the earlier perjury case, United States v. Laughlin, 226 F.Supp. 112 (D.D.C.1964). This exact point was raised in the earlier case, Laughlin v. United States, 128 U.S.App.D.C. 27, 33, 385 F.2d 287, 293 (1967) and we there pointed out the court in the perjury trial

held only that the telephone record cards did not constitute convincing corroboration. But that is not to say that they do not constitute permissible corroboration in a nonperjury case.

We see no reason to alter our prior decision.

Third, is a claim that the grand jury was biased “due to false information given the grand jury by the prosecutor.” This claim is fully discussed and decided adversely to appellant at 128 U.S.App.D.C. at 31-32, 385 F.2d at 291-292. We there held that no general bias of the grand jury was shown to exist, that what is alleged as bias was basically a natural reaction by the jury to believing the evidence which incriminated appellant, and that since there was ample competent evidence before the grand jury to support the indictment he was not substantially prejudiced by any inadmissible evidence. We have reevaluated our prior holding and adhere thereto.

Fourth, appellant claims the indictment in the conspiracy and obstruction ease should have been dismissed because the recordings of the telephone conversations were played for the grand jury and thus tainted the indictment. As we pointed out in our prior decision (128 U.S.App.D.C. at 31, 385 F.2d at 291), the indictment was presumptively valid, was supported by ample substantial evidence before the grand jury, was substantiated at trial by ample valid evidence and that appellant suffered no ultimate prejudice. We accordingly adhere to our prior decision on this point.

Fifth, appellant again argues that the trial court in the conspiracy and obstruction case committed reversible error when it allegedly refused to instruct the jury as to his theory of the case to the extent that it is supported by the evidence and the law, but a claim that the jury should be instructed to acquit the defendant if the defense testimony denying guilt is believed can hardly be elevated to the status of a “theory.” What is required before the theory of the case rule comes into play is a more involved theory involving “law” or fact, or both, that is not so obvious to any jury. This was the gist of our earlier holding on this point (128 U.S.App.D.C. at 34 n. 4, 385 F.2d at 294 n. 4), and nothing has been added that convinces us we should change our decision.

Sixth, with respect to appellant’s argument that the Government improperly disclosed some income tax information in connection with the grand jury proceeding, see our discussion of this point in note 12, supra, and particularly the federal regulation which permitted such use of the information in a case where the United States, as here, is interested in the result.

Finally, we set • forth the appendices from the August 8, 1969 opinion of Judge Jones in the conspiracy and obstruction case, and the October 20, 1970 opinion of Judge Spottswood W. Robinson III in the perjury case, specifying the prior instances when points raised in their respective cases had been previously raised.

IV

For the reasons set forth above we are constrained to conclude that these appeals, as well as the coram nobis proceedings in the District Court, were wholly without merit. Appellant’s indiscriminate and repetitive challenges to convictions that have already been exhaustively scrutinized for any indicia of impropriety border on an abuse of the judicial process but are understandable when one considers the vital effect of the convictions and disbarment upon appellant. As a result, he is deprived, late in life, of his ability to practice his profession. We appreciate fully the seriousness of the situation in which he has placed himself but we find no basis to justify our arriving at a different disposition of his case. While the ancient rule relied upon by Judge Pratt — “there must be an end to litigation” — surely must fall in cases where significant changes in the law or newly discovered facts or errors are revealed, such is not this case which raises no new facts, law, or arguments.

The orders of the District Court denying the writ of error coram nobis and denying reconsideration in No. 71-1142, and the order of disbarment in No. 22,996, are hereby

Affirmed.

      . D.C.Code § 11-2103 (1967) (emphasis added).

      . July 29, 1970, Pub.L. 91-358, Title I, Part E, § 199(b)(1), 84 Stat. 597.

      . The new D.C.Code section covering disbarment from the D.C. Court of Appeals for criminal convictions is also mandatory in its terms. D.C.Code § 11-2503 (1967 ed., Supp. V 1972).

      . Pub.L. 91-358, § 199(b)(1), 84 Stat. 597, printed at note following D.C.Code § 11-2503 (1967 ed. Supp. IV 1971) (emphasis added).

      . In its literal terms appellant’s argument cannot be correct because the Committee had no power to disbar or reinstate. Their function was simply to make investigations and recommendations to the District Court. It was solely the court which had the power to alter appellant’s status as a member of the bar. The Committee could, however, arguably have lent its support and its substantial influence before the court on behalf of appellant if his construction of the statute were correct.

      . The indictment had included similar counts regarding a Dorothy Birge, but the counts were severed and appellant represented Forte only with respect to the charges involving Mrs. Smith.

      . Appellant had filed an untimely affidavit of personal bias and prejudice against Judge Hart during the first trial, and the case was reassigned for the second trial.

      . 28 U.S.C. note following- § 2255.

      . See Owensby v. United States, 353 F.2d 412, 416-417 (10th Cir. 1965), cert. denied, 383 U.S. 962, 86 S.Ct. 1234, 16 L.Ed.2d 305 (1966); Thomas v. United States, 106 U.S.App.D.C. 234, 238, 271 F.2d 500, 504 (1959); Mathias v. United States, 246 F.Supp. 116, 118-119 (E.D.N.C.1965), rev’d on other grounds, 369 F.2d 43 (4th Cir. 1966).

      . Further support for considering Judge Pratt’s assumption of jurisdiction as his having treated the papers as a Section 2255 motion comes from the nature of appellant’s complaints. Gormn nobis was available at common law only to correct errors of fact in very limited situations, United States v. Morgan, 346 U.S. 502, 507-11 (1954), and though the range of errors has been greatly broadened, the writ remains limited to the correction of factual errors. See 7 J. Moore, Federal Practice U 60.14 (1971); 18 Am.Jur.2d, Coram Nobis §§ 1-3 (1965). The bulk of appellant’s contentions here, however, relate to challenged conclusions of law— e. g. applicability of the doctrine of collateral estoppel, legality of the prosecutor’s actions before the grand jury, pro-, priety of jury instructions, etc. — that could not have been reached through coram nobis. Section 2255 does provide an avenue for such challenges.

      . The Court in Sanders noted
      that these rules are not operative in eases where the second or successive application is shown, on the basis of the application, files, and records of the case alone, conclusively to be without merit. ... In such a case the application should be denied without a hearing.
      373 U.S. at 15, 83 S.Ct. at 1077 (citation omitted). A denial without hearing based on a finding “that the files and records conclusively resolved these issues” constitutes a determination on the merits of such grounds. Id. at 16, 83 S.Ct. at 1077.

      . The two other points most urgently argued in appellant’s papers were squarely considered and rejected in prior proceedings, and appellant has raised neither new arguments nor intervening changes in the law to support reconsideration of them here. The contention that Judge Jones improperly denied a requested instruction on the defense theory of the case was expressly rejected on appeal. 128 U.S.App.D.C. at 34 & n. 4, 385 F.2d at 294 & n. 4. The contention that the Assistant U. S. Attorney’s revelation of income tax information to a grand jury witness was illegal under Int.Rev.Code of 1954 § 7213 was expressly rejected in Judge Robinson’s opinion denying Section 2255 relief. Brief for appellee at 20-21 & n. 33. In any event, such use of income tax information is expressly authorized by Treas.Reg. § 301.6103 (a)-1(h) (Cum.Pocket Supp.1967). The regulation authorizes personnel of the Internal Revenue Service to furnish income tax returns of individuals to United States Attorneys for official use in proceedings before a United States grand jury or in litigation in any court and for use in preparation for such proceedings or litigation if the United States is interested in the result. This is sufficiently broad to authorize disclosure of the contents of relevant income tax returns to juries and Government witnesses in such proceedings. The aforesaid regulation was added by T.D. 6543, 26 F.R. 563, Jan. 20, 1961.

      . In re Tinkhoff, 101 F.2d 341 (7th Cir. 1938), cert. denied, 308 U.S. 552, 60 S.Ct. 99, 84 L.Ed. 464 (1939); In re Braverman, 148 F.Supp. 56 (D.Md.1957); see also, In re Teitelbaum, 13 Ill.2d 586, 150 N.E.2d 873, 875, cert. denied, 358 U.S. 881, 79 S.Ct. 121, 3 L.Ed.2d 111, reh. denied, 358 U.S. 923, 79 S.Ct. 287, 3 L.Ed.2d 242 (1958); In re Welansky, 319 Mass. 205, 65 N.E.2d 202, 204 (1946).

      . It is reversible error for a trial court to refuse to instruct the jury on the defendant’s theory of the case when pi-op-erly requested by counsel and when the theory is supported by the evidence. Bird v. United States, 180 U.S. 356, 361-362, 21 S.Ct. 403, 45 L.Ed. 570 (1901). Salley v. United States, 122 U.S.App.D.C. 359, 360, 353 F.2d 897, 898 (1965); Levine v. United States, 104 U.S.App.D.C. 281, 282, 261 F.2d 747, 748 (1958); Marson v. United States, 203 F.2d 904, 912 (6th Cir. 1953).

      . See note 12, supra.

      .
      Civil Action No. 1441-69
      Criminal No. 600-63
      APPENDIX I
      Appellant’s Brief Petition Reply for Amicus Brief Rehearing Brief
      1. Unlawful Tape Recordings Were Played Before the Grand Jury ...................... 23 4 13-15 3-23
      2. Grand Jury Bias...........23-29 4 33-34
      3. Violation of Criminal Statutes In The Procurement of Evidence ......................33-35 7-11 7-15 6-23
      4. Coercion of a Government Witness ...................36-37 11-14 16-17 24r-32
      5. Fundamental fairness.......42-44 14
      6. Failure to adhere to Department of Justice Directive .... — 7
      7. Public Policy..............40-41 14 —
      8. Collateral Estoppel (Receipt In Evidence of Telephone Records) ......................19-22 3-4 16 —
      9. No proof of conspiracy.....45-46 14-15
      10. The Matter of other offenses ..................... 8-15 1-2 16 —
      (Reading paragraph 6 of Count 1 to the Jury)
      11. Failure to Instruct on Defendant’s Theory of the Case...................... 47 17 4-6

      .
      Civil Action No. 144-69
      Criminal No. 406-65
      APPENDIX
      PRESENT POINTS RAISED ON PRIOR APPEAL
      Appellant’s Brief Appellee’s Brief Reply Brieii Petition For Rehearing
      1. Governmental Eavesdropping .................. ..... 12-15 18-21 1-7 5-11
      22 1A-15
      2. Grand Jury Bias....... .....20-21 30-34 19-26 11-14
      3. Violations in Procuring Evidence ................. .....12-15 18-21 1-7 5-11
      4. Coercion of Government Witness .................. ..... 17-18 21-23 15-19 14-16
      5. Fundamental Fairness ... .....15-17
      6. Department of Justice Directive................... .....12-15 1-7 11-14
      7. Public Policy........... ..... 15-17
      8. Collateral Estoppel...... .....19 23-29 12-13 1-2
      14