author: BRIGHT, Circuit Judge.

text:
    FORT SMITH OUTERWEAR, INC., and H. L. Friedlen Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1587.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1974.
    Decided June 19, 1974.

      Anthony E. Dombrow, Chicago, 111., for petitioners.
    Corinna Metcalf, Atty., N. L. R. B., Washington, D. C., for respondent.
    Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.
   BRIGHT, Circuit Judge.

Petitioner, Fort Smith Outerwear, Inc. (Employer), a wholly-owned subsidiary of H. L. Friedlen Company, was the focus of a union organizational campaign during late 1971 and early 1972. This campaign culminated in an election on March 1, 1972, which the Union lost by a vote of 46 to 37. Thereafter, the Union filed objections to the conduct of the election and charged the Employer with unfair labor practices. After a hearing by an administrative law judge, the ease was presented to a three-member panel of the National Labor Relations Board. The Board found the Employer guilty of violating § 8(a) (1) of the National Labor Relations Act, 29 U. S.C. § 158(a)(1), and, contrary to the ruling of the administrative law judge, found a § 8(a)(3), 29 U.S.C. § 158(a) (3), violation in the Employer’s transfer of an employee to'a different job in retaliation for her pro-union activity. Finally, the Board sustained the determination of the administrative law judge that unfair labor practices made a fair rerun election unlikely and that the Employer violated § 8(a)(5), 29 U.S.C. § 158(a)(5), by refusing to bargain with the Union which, since December 13, 1971, represented an uncoerced majority of the employees in the. appropriate bargaining unit. The case comes before us on the Employer’s petition for review and the Board’s cross-application for enforcement of the order.

I.

On review of the record, we find substantial support for the Board’s findings that the Employer committed unfair labor practices during the pre-election campaign in violation of § 8(a)(1). We also find substantial evidence in the record for the Board’s finding that the Employer violated § 8(a)(3) when it transferred an employee to a different job in retaliation for her union activity. We deem any further discussion of these § 8(a)(1) and § 8(a)(3) transgressions as well as the underlying evidence to be unnecessary and having no precedential value. Thus, we enforce the Board’s order on these issues. See 8th Cir. R. 14. We disagree, however, with the Board majority on the § 8(a)(5) violation and hold the bargaining order unjustified in this case.

II.

We turn to a discussion- of the evidence‘forming the basis for the issuance of the bargaining order. At the hearing before the administrative law judge, the general counsel for the Union introduced union authorization cards for more than a majority of employees in the unit. These authorization cards were entitled “APPLICATION FOR MEMBERSHIP in the Amalgamated Clothing Workers of America, AFL-CIO,” and read:

I, the undersigned, hereby apply for membership in the Amalgamated Clothing Workers of America, and do hereby appoint and authorize the officers thereof, to represent and negotiate for me in all matters pertaining to wages, hours and other conditions of employment.

The administrative judge summarily excluded two of the introduced cards as representing employees not within the unit and heard evidence on challenges to 38 other cards, eventually sustaining two challenges. The two cards rejected by the administrative judge were explained as follows:

1. Vivian Gibbs — misstatement of purpose of card as not "signing up to become union.”
2. Violet Baker — misrepresentation that card only for election.

Since 23 cards were unchallenged and 36 (of 38) were sustained against challenge, the administrative law judge ruled that the Union represented an uncoerced majority of 59 employees out of 106 on the crucial date of December 13, 1971. The Board, however, further reduced that majority by invalidating the cards of three employees — Linda Moore, Colleen Buzzard, and Ruth Riddle. Thus, these determinations left the Union in the present stance of having a slim, two-card majority on which to justify a bargaining order.

Where the Employer’s conduct is not marked by “ ‘outrageous’ and ‘pervasive’ unfair labor practices,” but nonetheless tends to undermine majority strength and impede election processes, as in the instant case, the Board’s authority to issue a bargaining order requires a showing:

[T]hat at one point the union had a majority; in such a case, of course, effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehaviour. [N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 613-614, 89 S.Ct. 1918, 1940, 23 L.Ed.2d 547 (1969).]

See Arbie Mineral Feed Co. v. N. L. R. B., 438 F.2d 940, 943-945 (8th Cir. 1971).

We need detail our examination of only a few of the still-contested cards to resolve this issue. Imogene Steed and Juanita Anderson signed cards on December 3, 1971, without reading them when the Union solicitor told them “if enough people signed the cards they could have an election.” Hazel Turner signed, a card when the solicitor said the card “was to petition for an election.” Shirley Walls signed a card when she was told that if enough people signed there would be an election; in addition, she was told that if she signed and the Union won, she would not need to pay a union initiation fee. A similar waiver of initiation fee statement was made to Virginia Morris.

We find no real distinction in the representations which were made to and relied on by employees Steed, Anderson, Turner, and Walls when they signed their cards and the misrepresentations which were made to and relied on by employees Buzzard and Riddle, when they signed their cards. Yet in the former case the administrative judge and the Board majority found the cards to be valid but in the latter case the Board found them invalid.

In exercising its decision-making powers in a single case, the Board must not act in an arbitrary or capricious manner and should maintain a consistent standard for evaluating the evidence. Cf. Wilkinson Manufacturing Co. v. N.L.R.B., 456 F.2d 298, 304 (8th Cir. 1972). Thus, since the Board or the administrative law judge rejected the cards of four employees as already mentioned (Gibbs, Baker, Buzzard, Riddle) because it found that these parties had not consented to join the Union, but only sought an election, the Board for the same reasons should have rejected the additional cards of Steed, Anderson, Turner, and Walls. Where the solicitation of signatures for authorization cards is represented as being solely for the purpose of obtaining an election, the resultant signed cards cannot be included in the total number of cards representing employees who have agreed to be represented by the Union.

Additionally, the representations made to employees Walls and Morris that an initiation fee would be waived as to them if the Union won the election seems to violate the rule enunciated in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). In Savair, the Court held that the promise to waive union initiation fees, conditioned upon the signing of authorization cards prior to a union election, interfered with employee rights and therefore constituted an “unfair” labor practice by the Union under §§ 7, 8, and 9 of the National Labor Relations Act, 29 U.S.C. §§ 157, 158, and 159. Thus the validity of these two cards is doubtful for that reason.

The Employer has made a number of other card challenges. However, due to the fact that we have already invalidated six challenged cards — thereby reducing the number of valid cards below a majority — we need not consider these additional challenges of the Employer. Accordingly, we enforce the Board’s order insofar as the §§ 8(a)(1) and 8(a)(3) violations. We reject the § 8(a)(5) bargaining order and remand this case to the Board for further proceedings.

      . Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, hereinafter referred to as “Union.”

      . The Board’s opinion is found at 205 N.L.R.B. No. 74 (1973).

      . Board member Ralph E. Kennedy dissented on the § 8(a)(3), 29 U.S.C. § 158(a)(3), violation and dissented on the bargaining order since in his view the Union did not represent an uncoerced majority of the employees.

      . The Board’s explanation for invalidating these cards consisted of the following:
      The card of Linda Moore was signed on December 3, 1970. The Administrative Law Judge concluded that this card was misdated and was received by the Union during the organizational campaign that began on November 30, 1971. It is well settled that the burden of proof is on the General Counsel to establish when a card is signed. The General Counsel did not call as a witness Linda Moore or anyone who observed her sign the .card. There is thus no evidence to establish that the card was actually signed on a date other than December 3, 1970, and thus during the same organizational campaign which led to the request for recognition. In these circumstances, we conclude that the General Counsel has not met his burden of proof.
      As to Colleen Buzzard’s card, the Administrative Law Judge concluded that, although Buzzard signed a card after she heard Beulah Threadgill say that “the only purpose was to bring about an election if she would get enough employees to sign the card,” Threadgill did not solicit Buzzard to sign a card. The record shows that someone put some cards on a table where Buzzard was sitting and only Threadgill stated the cards’ purpose to Buzzard. Buzzard testified that she signed the card because of what Threadgill told her. On the basis of the foregoing, we conclude that Threadgill did solicit Buzzard to sign the card on the basis of Threadgill’s aforesaid misrepresentation.
      In regard to Ruth Riddle’s card, Riddle testified that she read and signed a card after Hester Khilling told her the card “was only to see if enough people would sign to get an election” and to see how many people wanted a union. Riddle also stated that she signed the card on the basis of Khilling’s assertion that the card was “only” for an election. We find this card invalid.

      . See n. 4, supra.

      . N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). See N.L.R.B. v. Savair Mfg. Co., 414 U.S 270, 279-280, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973).

      . The Board suggests a remand to determine whether a dues waiver was available to employees joining the Union after the election, and a practice not prohibited. In light of the overall record, we think the remand is unnecessary.


source: Caselaw Access Project

author: GIBSON, Circuit Judge.

license: Public Domain

text:
    Syntha ESSEX, Administratrix, dbn, cta of the Estate of Harry E. Judd, Deceased, Appellant, v. Richard P. VINAL et al., Appellees.
    Nos. 73-1709 to 73-1711.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1974.
    Decided June 6, 1974.
    Rehearings and Rehearings En Banc Denied July 17, 1974.

      Harry H. Foulks, Omaha, Neb., for appellant.
    William H. Brown, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.
   GIBSON, Circuit Judge.

These consolidated cases present a somewhat novel question for our review. The plaintiff, administratrix of the estate of Harry E. Judd, who died September 8, 1965, claims that estate taxes paid by the estate were not “taxes” but rather “deposits” as these taxes had not allegedly been assessed. These cases come before us from the District Court’s grant of the United States’ Motion to Dismiss for lack of subject matter jurisdiction.

In order to understand plaintiff’s contentions, the background details of this litigation must be set forth. The decedent, Harry E. Judd, died September 8, 1965. Int.Rev.Code' of 1954, § 6075 and Treas.Reg. § 20.6075-1 (1958) in effect at the time of decedent’s death required an estate tax return to be filed within 15 months after the date of death. On December 8, 1966 (the last day of the 15-month period), the estate made a $55,000 payment and requested an extension of time to file the estate tax return. This payment was assessed December 16, 1966. On January 9, 1967, the estate tax return was filed with a payment of the remaining tax shown as due on the return, $5,132.21, together with interest of $26.52. The above amount was assessed January 13, 1967. As a result of audit, a deficiency of $13,372.40 was determined by IRS. Statutory notice of deficiency was mailed March 10, 1969. After expiration of the 90-day period for seeking Tax Court review, the deficiency was assessed August 1, 1969. This amount, together with interest of $2,192.34, was paid September 15,1969.

A claim for refund of the above amounts was made to the Commissioner September 14, 1970. On December 13, 1970, this claim was disallowed. As to the $55,000 and the $5,158.73 payments, the reason for denial was that the statute of limitations in Int.Rev.Code of 1954, § 6511 had expired. The refund claim for the $13,372.40 deficiency was also denied by the Commissioner and a suit for refund of this payment, for which a timely refund claim had been made, is presently pending in federal district court. The plaintiff also, prior to the instant action, filed a suit in the district court for a writ of mandamus to compel the Internal Revenue Service to release its assessment records. Upon voluntary compliance this suit was dismissed by the District Court. The dismissal was affirmed on appeal under Local Rule 14. Essex v. Walters, 475 F.2d 1407 (8th Cir.), cert. denied, 412 U.S. 919, 93 S.Ct. 2732, 37 L.Ed.2d 144 (1973).

Plaintiff then brought the instant suits, styled as class actions, requesting recovery of some $28 million in toto. Her claim in each suit is identical. She alleges that each of the three payments was a deposit to be used to satisfy any tax liability assessed, but since no tax liability was assessed, these monies are being illegally retained by the Service. The District Court concluded that these suits were actually suits against the United States, that there had been no waiver of sovereign immunity, and thus it was without jurisdiction.

The decision in this case requires determination of three questions: (1) whether the suit is actually a suit against the United States; (2) whether the monies were actually a deposit or were paid as taxes; and (3) if the monies were paid as taxes, and the suit is actually against the United States whether sovereign immunity has been waived.

Plaintiff argues that this is not a suit against the sovereign because the actions of the defendants were ultra vires their statutory authority and thus fall into the first exception regarding the permissibility of maintaining suits against government officials restated in Dugan v. Rank, 372 U.S. 609, 621-622, 83 S.Ct. 999, 1007, 10 L.Ed.2d 15 (1963):

Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised'are constitutionally void.

We do not need to decide whether or not these acts were ultra vires for “the existence of a right to sue the officer is not the issue in this case * * * [but] [t]he issue here is whether this particular suit is not also, in effect, a suit against the sovereign.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949). We hold that it is. This is not a suit to recover damages for an agent’s personal actions, rather it requests the return of monies deposited in the United States Treasury. The relief sought is, in fact, relief against the United States for alleged wrongs committed by its subordinate officials and as such is barred, absent an effective waiver.

Since the sovereign may not be sued, it must also appear that the action to be restrained or directed is not action of the sovereign. The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet that requirement.

Larson v. Domestic & Foreign Commerce Corp., supra at 693.

Thus, before determining whether there has been any waiver of immunity in these cases, the character of the monies paid must be determined. Plaintiff asserts that the decisions in Rosenman v. United States, 323 U.S. 658, 65 S.Ct. 536, 89 L.Ed. 535 (1945), and Brafman v. United States, 384 F.2d 863 (5th Cir. 1967), require, a conclusion that these monies are deposits rather than payments of taxes.

It is clear that the monies paid were not intended as deposits but as taxes. The initial $55,000 payment was made on the due date for filing the estate tax return at the same time that an extension of time for filing was requested. The payment of $5,132.21 plus interest of $26.52 made January 9, 1967, was made as a payment of the remainder of tax due as shown on the return filed the same date. And the last payment of $13,372.40 plus interest of $2,192.34 in response to a statutory notice of deficiency was obviously intended as a payment of tax.

The Service treated these payments as taxes and not as deposits. The advance payment of $55,000 December 8, 1966, was assessed December 16j 1966, pursuant to the authority contained in Int. Rev.Code of 1954, § 6213(b)(3); Treas. Reg. § 301.6213-l(b) (3) (1954); and Rev.Proc. 64-13 allowing advance payments to be assessed upon receipt. The later payments also were assessed as taxes instead of being held as deposits by the Service.

The plaintiff’s legal argument boils down to the contention that these assessments made were void because Treas. Reg. § 301.6203-1 (1961) was not complied with. Int.Rev.Code of 1954, § 6203 specifies that an assessment

shall be made by recording the liability of the taxpayer in the office of the Secretary or his delegate in accordance with rules or regulations prescribed by the Secretary or his delegate.

Treas.Reg. § 301.6203-1 provides in pertinent part:

Method of Assessment. — The district director and the director of the regional service center shall appoint one or more assessment officers. The district director shall also appoint assessment officers in a Service Center servicing his district. The assessment shall be made by an assessment officer signing the summary record of assessment. (emphasis supplied).

The asserted noncompliance with • the regulation is the allegation that those officers who signed the assessment certificates were not in fact “assessment officers.” Accepting arguendo that this is so, we find nothing in Rosenman or Brafman to support the plaintiff’s legal contention that the assessments are thus void and the payments converted to deposits subject to recovery in the instant suit.

In Rosenman, the Commissioner’s claim was that the date of a $120,000 advance payment should govern the running of the statute of limitations for filing a claim for refund. This contention was rejected because the payment had been held in a special suspense account and was not considered as “payment” until the amount of tax due was actually assessed by Internal Revenue. There is no doubt that had the deposit been assessed upon receipt as was done in the present case, it would have been considered “payment” at that time.

Brafman is closer to plaintiff’s position. In Brafman, the Commissioner in 1962 attempted to impose transferee liability for estate taxes upon a beneficiary of the estate of a decedent who died in 1951. This liability was predicated upon an assessment certificate prepared August 1, 1956, after a Tax Court decision in favor of the Government. The Brafman court began with the proposition that there could be no transferee liability if there was no assessment within the statutory period, which in Brafman terminated September 28, 1957. The assessment certificate of August 1, 1956, was unsigned. Treas.Reg. § 301.6203-1, supra, was interpreted to require signature on the assessment certificate. An unsigned certificate was determined to be wholly void, thus there was no assessment upon which to base transferee liability.

So far as our research has disclosed, plaintiff presents an argument of first impression. Arguably, it would be permissible to interpret Treas.Reg. § 301.6203-1 to void a signed assessment if not signed by an authorized assessment officer. However, we think such an approach is totally unwarranted. The distinction, as we see it, between Brafman and the present case is that Brafman involved the facial invalidity of the assessment; any person familiar with the requirement that an assessment certificate be signed would at once recognize the invalidity of an unsigned assessment. In the present case the assessment are at the least de facto valid; no irregularity appears on the face of the assessment certificates. Even accepting plaintiff’s allegations as true, we think this would establish only that the assessment was erroneously or illegally made, not that no assessment was made. Provision for challenging an erroneous or illegal assessment is provided by 28 U.S.C. § 1346(a)(1). This section reads:

United States as defendant
(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or * * * any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws * * *.

The above provision is the only one upon which plaintiff may establish a waiver of immunity on behalf of the United States, yet this avails her little due to her failure to make a timely administrative claim. Int.Rev.Code of 1954, § 7422(a) provides:

(a) No suit prior to filing claim for refund. — No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or * * * of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.

Plaintiff’s administrative claim for refund of the first two payments was not timely filed in accordance with Int.Rev.Code of 1954, ■§ 6511, supra. The filing of a timely claim for refund under § 7422(a) is a prerequisite to a tax refund suit and is a jurisdictional requirement that cannot be waived. Canton v. United States, 388 F.2d 985, 986 (8th Cir. 1968); United States v. Rochelle, 363 F.2d 225, 231 (5th Cir. 1966). Thus whatever claim plaintiff has regarding the first two payments is barred by the limitation period. The final payment is the subject of a presently pending refund suit, in the district court. The District Court correctly concluded it was without jurisdiction to hear the instant cases.

Plaintiff incorrectly argues that 28 U.S.C. § 1340 and § 1361 constitute waivers of sovereign immunity. It is well settled that such is not the case. Regarding 28 U.S.C. § 1340, see Falik v. United States, 343 F.2d 38, 40 (2d Cir. 1965); Yannicelli v. Nash, 354 F.Supp. 143, 149 (D.N.J.1973); Quinn v. Hook, 231 F.Supp. 718, 719 (E.D.Pa.1964), aff’d 341 F.2d 920 (3d Cir. 1965). That § 1361 does not constitute a waiver, see White v. Administrator of G.S.A., 343 F.2d 444, 447 (9th Cir. 1965); Massachusetts v. Connor, 248 F.Supp. 656, 660 (D.Mass.1966), aff’d 336 F.2d 778 (1st Cir. 1966); Switzerland Co. v. Udall, 225 F.Supp. 812, 819-820 (W.D.N.C.), aff’d 337 F.2d 56 (4th Cir. 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 900, 13 L.Ed.2d 800 (1965).

The judgment of the District Court dismissing these actions is affirmed.

      . The Honorable Richard E. Robinson, Senior District Judge, District of Nebraska. Judge Robinson’s memorandum opinion appears at 362 F.Supp. 372 (D.Neb.1973).

      . The District Court’s legal conclusion was that this was a suit directed against the United States as sovereign without its consent, and that the Court lacked subject matter jurisdiction.

      . Int.Rev.Code of 1954, § 6511 provides in pertinent part:
      (a) Period of limitation on filing claim.— Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was [required to be filed (determined without regard to any extension of time) ] or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was, paid.
      (b) Limitation on allowance of credits and refunds.—
      (1) Filing of claim within prescribed period. — No credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) for the filing of a claim for credit or refund, unless a claim for credit or refund is filed by the taxpayer within such period.

      . Defendant Richard P. Vinal is District Director of Internal Revenue, Nebraska District, Arnold S. Dreyer is Director of the Midwest Regional Service Center. Johnnie M. Walters is the former Commissioner of Internal Revenue.

      . In view of the difficulties presented by advance payments when the amount of tax due could not be determined by the Service at the time of payment, the Commissioner issued Rev.Proc. 63-11, 1963-1 Cum.Bull. 497 setting forth how advance payments would be handled. This was superseded by Rev. Proe. 64-13, 1964-1 Cum.Bull. 674 in effect at the time these payments were made. Rev.Proc. 64-13, §§ 3.02 and 3.03 provide in pertinent part:
      .02 An advance payment made before the mailing of a statutory notice of deficiency (90-day letter), which is made by a taxpayer as a payment in respect of a pending deficiency, will also be assessed upon receipt or as soon thereafter as is practicable, provided the District Director of Internal Revenue is in a position to ascertain the amount of the deficiency s|: *
      .03 An advance payment received before the mailing of a statutory notice of deficiency which is not assessed will be treated as a deposit in the nature of a cash bond for the payment of taxes thereafter found to be due.

      . Our foregoing discussion assumes, only for the purpose of deciding plaintiff’s waiver of sovereign immunity argument, that an action on the allegedly illegal assessments might lie under § 1346(a)(1). We neither hold nor imply that the allegations of the complaint state any cause of action against the United States, even if timely brought.

      . 28 U.S.C. § 1340 provides :

        Internal Revenue; customs duties

      The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.

      . 28 U.S.C. § 1361 provides :

        Action to compel an officer of the United States to perform his duty

      The district courts shall have original jurisdiction of any action in the nature of mandamus to compel any officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.


author:
MOORE, Circuit Judge:
      ROBERT P. ANDERSON, Circuit Judge

text:
    ALFRED DUNHILL LIMITED and Alfred Dunhill of London, Inc., Appellees, v. INTERSTATE CIGAR COMPANY, INC., et al., Appellants.
    Nos. 346, 347, Dockets 73-1177, 73-1402.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 15, 1974.
    Decided June 27, 1974.

      Noel W. Hauser, Brooklyn, N. Y. (Hauser & Rosenbaum, Brooklyn, N. Y., of counsel), for appellants Interstate Cigar Co., Inc., Jamaica Tobacco & Sales Corp., M. Shapiro Sons Smoke Shop, Inc. and Seckler Bros., Inc.
    Victor S. Friedman, New York City (Fried, Frank, Harris, Shriver & Jacobson and Steven Kimelman, New York City, of counsel), for appellees Alfred Dunhill Limited and Alfred Dunhill of London, Inc.
    Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.
   MOORE, Circuit Judge:

This is an appeal by defendants from an order of the United States- District Court for the Southern District of New York, granting a permanent injunction prohibiting appellees from selling salvaged Dunhill brand tobacco without informing prospective purchasers of its origin and possible damaged condition and, in implementation thereof, further directing the appellees to permit Alfred Dunhill Limited and Alfred Dunhill of London, Inc. to label each tin of salvaged Dunhill tobacco in appellees’ possession with the legend: “Subjected to Possible Water Damage.”

Because we believe that plaintiffs have failed to state a claim upon which relief can be granted, we reverse and remand the decision of the District Court with instructions to vacate the injunction and dismiss the complaint.

Alfred Dunhill of London, Inc. (hereinafter “Dunhill”) is the exclusive distributor in the United States of the tobacco and tobacco products manufactured by Alfred Dunhill Limited, a British corporation.

In February 1972 a large container filled with two hundred and sixty-eight fiberboard cases of Dunhill brand tobacco arrived, after a transAtlantic voyage, at Dunhill’s New York warehouse in a damaged condition. Apparently, prior to delivery in New York, a hole had developed in the roof of the container in which ■ the cases of tobacco had been packed and an undetermined amount of water had entered. Upon inspecting the merchandise, Dunhill set aside one hundred and sixty-eight cases of tobacco which it considered likely to have been damaged by exposure to water. It retained the remaining one hundred cases and marketed their contents in the regular course of business.

After receiving the shipment, Dunhill made a claim on itb insurance carrier, William McGee & Company and Sun Insurance Company, for the water' loss. Dunhill’s' insurance agreement with McGee provided:

Partial loss: In case of partial loss or damage caused by a peril insured against, the proportion of loss shall be determined by a separation of the damaged portion of the insured property from the sound and by agreed estimate (by survey) of the percentage of damage of such portion; or if such agreement is not practicable, then by public sale of such damaged portion for the account of the owner of the property and by comparison of the amount so realized with the sound market value on the day of sale.

Worman & Company, Inc., William McGee & Company and Sun Insurance Company’s surveyor, examined the cases of allegedly damaged goods and, on behalf of the insurer, offered Dunhill twenty-five percent of the insured value of the one hundred and sixty-eight cases. Under the terms of its insurance contract, Dunhill was faced with the choice of either keeping the tobacco and settling for the immediate recovery of a fraction of its value or permitting the insurer to sell for its account the tobacco as salvage and collecting full face value. Dunhill agreed to the salvage sale and the goods were shipped to United Salvage Company (United) for disposition.

In June 1972, appellant Interstate Cigar Company, Inc., a wholesale merchant, .purchased the tobacco from United. At the time of the purchase, Interstate was fully aware that the tobacco was salvaged goods and had been subjected to possible water damage. The bill of sale read “Dunhill Tobacco — As Is — Salvage,” and the price paid was $8,000. No conditions were imposed upon resale of the tobacco.

On or about July 12, 1972, Dunhill received from Worman & Co. United’s check to the order of Dunhill, Inc., in the amount of $7,559.18, representing the proceeds of the sale less United’s commission. On or about August 23, 1972, Dunhill received a second check from William McGee & Company in the amount of $13,850.33 which apparently constituted the remainder of the invoice value and other costs of the damaged tobacco and non-tobacco merchandise and the amount received by Dunhill from United Salvage.

After the sale had been consummated and Interstate had received the goods, Walter Harris, Jr., president of Dunhill, and Sidney Spielfogel, president of Interstate, conversed over the telephone. Harris demanded that Interstate mark the cans as salvage or stop selling the tobacco. Spielfogel rejected this demand but offered to rescind the transaction and return the tobacco to Dunhill. Harris replied that he didn’t want the tobacco back. On June 23, 1972 and on August 9, Dunhill sent letters to Interstate and Interstate’s attorney, respectively, demanding that the tobacco be relabeled. No reply was made to either letter.

From June 1972 to September' 1972, Interstate sold quantities of this Dunhill tobacco to defendants Seckler Bros., Inc. and M. Shapiro Sons Smoke Shop, Inc. and to nine other • retailers. One of these retailers was Arnold’s Cigar Store in Miami Beach, Florida. In spite of the fact that on June 21, 1972, Interstate circulated a memorandum among its sales personnel advising them that customers should be warned that the merchandise was salvage, there is proof to the effect (and the District Court found) that on at least one occasion Interstate sold a quantity of the tobacco in question without advising its customer that the goods had been subject to possible water damage. Morever, several retailers, while they placed the tobacco on sale at unusually low prices, did not give their retail customers specific notice that the tobacco was salvaged merchandise and had been subjected to possible water damage.

On September 12, 1972, appellants filed their complaint in the United States District Court for' the Southern District of New York, together with affidavits in support of an application for a temporary injunction and a Temporary Restraining Order, asking that Interstate be forbidden from selling the salvaged Dunhill tobacco under the Dunhill trademark. A Temporary Restraining Order was granted on September 12, 1972. On October 12, 13 and 17, the District Court held a consolidated hearing on applications for a temporary injunction and a permanent injunction. The Temporary Restraining Order continued in effect until February 7, 1973, when the District Court issued its memorandum opinion.

The District Court held that defendants should be permanently enjoined from selling the tobacco “without taking effective steps to warn their customers that the tobacco had been subjected to possible water damage.” On February 23, 1973, the District Court issued an Order of Permanent Injunction prohibiting all defendants from selling the salvaged tobacco without informing prospective purchasers of its actual origin and possible damaged condition. Furthermore, the Court directed defendants to permit plaintiffs to label each tin of tobacco remaining in defendants’ possession with the legend: “Subjected to Possible Water Damage.”

Dunhill successfully argued to the court below that Interstate violated Section 43(a) of the Lanham Trade-Mark Act of 1946 when it resold the Dunhill brand tobacco without removing the Dunhill labels or without affixing" a warning to each of the cans cautioning potential customer's that the tobacco had been subjected to possible water damage. Section 43(a) of the Lanham Act provides that:

Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce . . . shall be liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

15 U.S.C. § 1125(a)(1970).

Although Dunhill concedes that Interstate never affixed to Dunhill containers false descriptions or representations or even used such descriptions or representations in connection with the sale of Dunhill tobacco products, it nevertheless asserts that the broad command of the Lanham Act was violated and a false impression was given consumers who purchased salvaged Dunhill tobacco, generally a high quality product, without being warned of the tobacco’s unusual history. The District Court agreed, finding that:

[Defendants have falsely represented the quality of the salvaged tobacco in violation of Section 1125(a). Sales of damaged tobacco in tins bearing trademarks associated with high quality tobacco, without adequate warnings to customers that the goods are damaged, involve false representations of their quality. False representations can be the product of affirmatively misleading statements, of partially correct statements or failure to disclose material facts. The public can be as easily misled by the purchase of damaged goods in their original containers which the purchasers do not know are damaged as they can be by statements that the goods are not damaged.

Alfred Dunhill Limited v. Interstate Cigar Co., 364 F.Supp. 366, 372 (S.D.N.Y.1973).

Section 43(a) of the Lanham Act was intended to expand the rights of those who were harmed by unfair competition. It was meant both to enlarge the category by activities which are proscribed by federal law and to expand the class of plaintiffs who could assert standing to sue under federal law. The scope of this piece of legislation was reviewed by Judge Hastie in L’Aiglon Apparel v. Lana Lobell, Inc., 214 F.2d 649 (3d Cir. 1954), where he wrote that, in addition to prohibiting “palming off” as judge-made law as had always been done, § 43(a) provided a federal remedy for the tort of “false advertising to the detriment of a competitor” as set forth in the Restatement of Torts. 214 F.2d at 651.

In the twenty years that have elapsed since the L’Aiglon decision, the courts have been careful to retain the integrity of Section 43(a) as'it was written. Although the Lanham Trade-Mark Act of 1946 was intended to expand the class of plaintiffs who could claim relief under federal law, it was not meant to provide standing to everyone who wished to seek relief thereunder. In Colligan v. Activities Club of New York, 442 F.2d 686 (2d Cir.), cert. denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971), after fully considering the history of the legislation and the objectives ,to be accomplished thereby, this court held with respect to Section 43(a) that:

We conclude, therefore, that Congress’ purpose in enacting § 43(a) was to create a special and limited unfair competition remedy, virtually without regard for the interests of consumers generally 26 and almost certainly without any consideration of consumer rights of action in particular. The Act’s purpose, as defined in § 45, is exclusively to protect the interests of a purely commercial class against unscrupulous commercial conduct, (footnote omitted).

442 F.2d at 692.

Similarly, although the Act was intended to enlarge the category of activities proscribed by federal law in 1946 and to be “broadly construed,” within that context, see Geisel v. Poynter Products, Inc., 283 F.Supp. 261 (S.D.N.Y.1968), the courts have been careful to recognize that § 43(a) does not have boundless application as a remedy for unfair trade practices but is limited to false advertising as that term is generally understood. See 1 Callman, Unfair Competition, Trademarks & Monopolies § 18.2(b).

The decision of the District Court, which held that the Lanham Act requires a seller to distinguish the product he sells, cannot be reached through an interpretation of the statutory language or legislative or judicial history of the Lanham Act. The court reached its result by reading the Lanham Act in conjunction with “unfair and deceptive trade practice” provisions of the Federal Trade Commission Act, — The Court wrote:

[W]hen consumers are deceived by misleading statements and a competitor engaged in commerce can show that it has been damaged by those misrepresentations, it has standing to challenge those practices under the Lanham Act. And it seems clear that the opinions of the Federal Trade Commission, an expert agency charged by Congress with the responsibility of protecting consumers and competitors from unfair trade practices, are rele- ■ vant where the claim is that deceptions of the public have harmed a person engaged in commerce.

Alfred Dunhill Limited, 364 F.Supp. at 372.

Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a), prohibits unfair methods of competition in commerce. The Federal Trade Commission, in the exercise of its power, has interpreted this provision to mean that it may require those who purvey goods to make affirmative disclosures about those goods where necessary to prevent the deception of the purchaser. See, e. g., In the Matter of Scott-Mitchell House, Inc., 56 FTC 1488 (1959); In the Matter of B&C Distributors Co., 55 FTC 866 (1958); In the Matter of Stanley Electronics Corp., 55 FTC 303 (1958). The courts have agreed with the Commission’s interpretation of the Commission’s power under the Federal Trade Act and have typically held that:

[F]ailure to disclose or mark or label material facts concerning merchandise, which, if known to prospective purchasers, would influence their decisions of whether or not to purchase, is an unfair trade practice violative of § 5 of the Federal Trade Commission Act, Haskelite Manufacturing Corp. v. Federal Trade Commission, 7 Cir., 127 F.2d 765, . . .

L. Heller & Son v. Federal Trade Commission, 191 F.2d 954, 956 (7th Cir. 1951). See also Ward Laboratories, Inc. v. Federal Trade Commission, 276 F.2d 952 (2d Cir. 1960).

Nevertheless, just as the Lanham Act clearly defines the category of those who may claim standing under its terms, the provisions of the Federal Trade Commission Act may be enforced only by the Federal Trade Commission. Nowhere does the Act bestow upon either competitors or consumers standing to enforce its provisions. Moore v. New York Cotton Exchange, 270 U.S. 593, 603, 46 S.Ct. 367, 70 L.Ed. 750 (1925); Holloway v. Bristol Myers Corp., 485 F.2d 986 (D.C.Cir.1973).

The Federal Trade Commission Act does not give competitors the right to sue for unfair advertising and the Lanham Act does not give anyone the right to sue for acts which constitute deceptive trade practices but which do not constitute unfair advertising. Even if this court were to accept the judgment of the District Court that Interstate has engaged in an unfair trade practice by not relabeling the tobacco tins, neither the Federal Trade Commission Act nor the Lanham Act provides relief for Dunhill under the circumstances. .

Not every possible evil has yet been proscribed by federal law. The fact that there are some acts which may arguably be wrongful and which are not prohibited by existing statutes does not license. courts to disregard the boundaries which Congress has written into its legislation.

Were we for a moment to ignore the barriers which stand in the way of the District Court’s merger of the Federal Trade Commission Act and the Lanham Act, Dunhill would still present a very poor claim as victim of an unfair or deceptive trade practice. This is not a case, as in J. C. Penney Co. v. Parrish Co., 335 F.Supp. 209 (D.Idaho 1971), where the defendant acquired plaintiff’s rejected merchandise from unknown third parties, see Finding No. 17, J. C. Penney Co. v. Parrish Co., supra, at 210, and then affirmatively touted it as first quality. See In the Matter of Stanley Electronics Corp., supra. Rather, Interstate acquired the tobacco from Dunhill, its insurer or agents, which had voluntarily relinquished title to the goods without attaching any conditions to their resale, and sold the tobacco at cut rates without making any affirmative claims to the effect that these were first quality goods.

If Dunhill had wished to distinguish the salvaged tobacco from that sold through its normal channels of distribution, it should have done so while the allegedly damaged tobacco was still under its control and before it was released into the salvage markets. From the beginning Dunhill was in the best position to effect the relabeling. It would be unfair, under the circumstances, for one party in the chain of distribution to impose upon another further down the line an obligation to decrease the value of the goods.

The District Court found that Dunhill had not waived its right to complain by failing to apprise Interstate of any resale conditions prior to Interstate’s purchase because it found that Dunhill was powerless to relabel the tobacco and “had no control over the terms of the sale of the tobacco by United Salvage.” 364 F.Supp. at 369. That finding all but ignores the facts that underlie this case. It is true that Dunhill relinquished possession of the goods to the representative of its insurance carrier and thereafter could not have relabeled the tins of tobacco. If it had done so, the insurance carrier would have been forced to suffer the loss occasioned by the branding of the goods. Dunhill knew full well that it could not insist that William McGee & Company and Sun Insurance Company take such a loss because it had refused to pay the extra insurance premium for “label and brand protection coverage” which would have permitted it, prior to the salvage sale, to remove its own labels from the tobacco. Nevertheless, to say that Dun-hill was powerless to relabel the tobacco ignores the fact that Dunhill made a free choice not to relabel when it agreed to the terms of its insurance coverage.

Because we find that neither the Federal Trade Commission Act nor the Lanham Act provides relief under the circumstances of this case and because we find that, even if they did, plaintiffs have waived their right to sue for an injunction, we reverse the decision of the District Court and remand with instructions to dissolve the permanent injunction and to dismiss the complaint for failure to state a claim upon which relief can be granted. Since we have found that the complaint fails to state a federal claim and since the District Court has not yet reached the pendent state claims alleged in this case, we direct it to dismiss those state claims for want of jurisdiction.

With respect to appellants’ request that this court should direct the District Court “to proceed with an assessment of damages sustained by the defendants as a result of the granting of injunctive relief, as well as with their counterclaims” (Applts’ Br. at 35), this matter is not before us and appellants are relegated to whatever relief, if any, may be available under any bond, or otherwise, in an appropriate forum.

ROBERT P. ANDERSON, Circuit Judge

(concurring in the result):

I concur in the result.

Had the rejected and damaged tins been acquired by the seller from an independent third-party, it seems to me that Dunhill would be entitled to seek relief under the Lanham Act against such a vendor for selling a tin of tobacco with Dunhill’s label on it under circumstances in which it would be reasonable for the purchaser to assume that he was getting Dunhill’s standard quality tobacco.

      . The tobacco was retailed in two ounce and four ounce vacuum sealed tins. There were anywhere from eight to sixteen such tins enclosed in light cardboard cartons. Twenty such cartons were packed in each of the one hundred and sixty-eight cases purchased by Interstate.
      It is impossible to determine whether the contents of a particular tin are damaged unless that tin is opened by breaking the airtight rubber seal, an event which causes the tobacco to deteriorate. Nevertheless, there was a high incidence of rusted tins among those purchased by Interstate and that indicates that the tins had been exposed to water. In spite of the fact that the tins are air-tight, it is possible for water to seep underneath the lid and destroy the rubber seal after which the tobacco immediately begins to deteriorate.

      . On February 2, 1973, almost four months after the consolidated hearing, defendants moved in the United States Court of Appeals to vacate the District Court’s Temporary Restraining Order. This motion was denied on February 13, 1973.

      . 60 Stat. 427, 15 U.S.C. §§ 1051-1127 (1970).

      . This section [43(a)] is a marked enlargement of the corresponding provisions of the Trade-Mark Act of 1920. The older section dealt only with “a false designation of origin” affixed to “an article of merchandise”; it applied only against persons who used such designations “willfully and with intent to deceive”; and it gave an action only to persons “doing business in the locality falsely indicated as that of origin” or associations of such persons.
      Bunn, The National Law of Unfair Competition, 62 Harv.L.Rev. 987, 998 (1947).

      . One who diverts trade from a competitor by fraudulently representing that the goods which he markets have ingredients or qualities which in fact they do not have but which the goods of the competitor do have, is liable to the competitor for the harm so caused, if,
      (a) when making the representation he intends that it should, or knows or should know that it is likely to, divert trade from the competitor.....
      Restatement of Torts § 761 (1934).


author: SWYGERT, Chief Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. URBAN TELEPHONE CORPORATION, Respondent.
    No. 73-1094.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 21, 1973.
    Decided June 17, 1974.

      Peter G. Nash, Gen. Counsel, William M. Bernstein, Attys., N. L. R. B., Washington, D. C., for petitioner.
    Robert K. Drummond, Urban Telephone Corp., Milwaukee, Wis., for respondent.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CHRISTENSEN, Senior District Judge.

       Senior District Judge A. Sherman Christensen of the District of Utah is sitting by designation.

   SWYGERT, Chief Judge.

The NLRB has applied to this court pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), for enforcement of its October 26, 1972 order issued against the respondent Urban Telephone Corporation [hereinafter referred to as the company]. The decision is reported at 199 NLRB No. 119.

The company is a Wisconsin corporation which provides telephone service. The union, International Brotherhood of Electrical Workers, AFL-CIO, petitioned the NLRB for certification as the bargaining representative for a stipulated unit of employees. On April 16, 1971, the NLRB conducted a secret ballot election. Of the thirty-three eligible voters, seventeen cast ballots in favor of the union and fifteen voted against. The company filed three objections to conduct affecting the election results:

(1) During the period before the election an individual acting on behalf of petitioner intimidated, threatened and/or coerced an eligible voter. Such conduct thereby unfairly affected the results of the election.
(2) On the day of the election a Union representative engaged in last minute electioneering directed toward no less than two eligible voters in the relative vicinity of the polls shortly before the opening thereof. Such conduct unfairly affected the results of the election.
(3) During the twenty-four hour period before the holding of the election, a Union representative met on company time with eligible voters in violation of the Board’s Peerless Plywood rule. [107 NLRB 427]

The Regional Director after an administrative investigation recommended that the second and third objections be overruled and that a hearing be held on the company’s first objection. The Board adopted those recommendations. A hearing officer then conducted a hearing on the first objection, found it to be without merit, and recommended that it be overruled and that a certification representative be issued to the union. On April 3, 1972, the Board, with one member dissenting, overruled the objections to the hearing officer’s report filed by the company and adopted his findings and recommendations and certified the union as the exclusive bargaining representative. 196 NLRB No. 6. The company refused to bargain with the union and thereafter the Board’s General Counsel issued a complaint that the company had committed unfair labor practices in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1), by refusing to bargain. The company answered and raised the same objections as it had previously raised. The Board found an unlawful refusal to bargain and ordered the company to bargain with the union upon request and to post appropriate notices. 199 NLRB No. 35. This application for enforcement followed.

The company raises three issues: (1) the Board failed to consider relevant evidence dealing with the second and third objections and denied due process of law to the company by refusing to order a hearing on these objections; (2) the Board abused its discretion by holding that the threats and coercion referred to in the first objection did not warrant setting aside the election; and (3) the Board failed to consider the combined effect of the acts alleged in the three objections.

Because of our resolution of the second issue, it is unnecessary to reach the other issues. The company alleged that George Rodriguez, an employee, had threatened on a number of occasions pri- or to the election to harm other employees. The conclusions of the hearing officer which were adopted by the Board were: (1) that Rodriguez was not an agent of the union and his statements therefore, were not attributable to the union, and (2) that the threats did not create a general atmosphere of fear and reprisal rendering the free choice of representatives impossible.

Rodriguez had been employed by the company for over three years as a lineman and repairman. He is physically large, one of the largest men in the bargaining unit. He had a reputation for fighting, although the company did not know of any problems that he had with fellow employees.

Rodriguez initiated the contact with the union and asked the union organizer, Marvin Devries, to speak to the employees about the union. Devries and the union business manager, De Wayne Wruck, testified that Rodriguez did not hold any official position in the union and was not authorized to speak on its behalf. He was, however, one of three men selected by the union to be a “contact man.” As “contact man” he received no benefits from the union but served on a volunteer basis. He acted as a liaison between the employees and the union in order to relay information. At the request of other employees, the union replaced Rodriguez as contact man shortly before the election. Rodriguez did ask the company for permission to speak on behalf of the union at one meeting of the employees in order to invite them to attend a later scheduled union meeting. But Devries and James Conway, the union lawyer, had informed the employees at one of the meetings that only they were authorized to speak on behalf of the union.

Based on Rodriguez’ affidavit and the testimony of John Schafer, the company vice president, which he found to be truthful, the hearing officer found four incidents involving Rodriguez in threats to other employees.

The first incident occurred two days before the election at a company meeting of all the employees. At the meeting, Schafer overheard Rodriguez tell a group of four or five employees that if the union did not get in, and he found out who voted against the union, there would be some “smashed faces.” The hearing officer concluded that the statement did not interfere with the election because the employees apparently reasoned that Rodriguez could not carry out his threat. In reaching that conclusion, the hearing officer relied on Schafer’s failure to respond, on the lack of complaint from any employee, and on the inability of Rodriguez to carry out his threat due to the election being by secret ballot.

In the second incident, Rodriguez admitted that on the same day at a different location he told a group of at least three employees that “he would kick ass and take names if we [the union] don’t win the election.” Rodriguez stated that all the people that he spoke with were good friends and prounion although he was not certain who was present. Two days after the election, an employee came to Schafer’s office and told him he had overheard the statement. He asked to speak to Schafer in confidence about the matter. Schafer testified that the man was definitely afraid. The hearing officer discredited the incident concluding that Rodriguez’ statement, made to good friends, was not sufficient to prevent or impair a free and unfettered choice of representatives.

The third incident occurred in early May. Another employee approached Schafer and told him in confidence that he was under a lot of pressure prior to the election to attend union meetings and that Rodriguez and an unidentified person told him that if he did not go, he would be in "big trouble.” The employee told Schafer that he did not report this earlier since he did not think that there was anything the company could do.

The hearing officer found Rodriguez’ latter two statements to be devoid of any threat to the employees. Since the company offered no evidence as to the context in which the statements were made, he found the statements to be ambiguous with a likely interpretation being that the employee would be sorry to lose the benefits of union representation.

Both parties to this proceeding agree that the standard of review is whether the Board abused its discretion in finding that the company’s objections did not warrant setting aside the election. Congress “entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946). Pursuant to that discretionary authority, the Board formulated a standard by which to judge the fairness of elections: “[Wjhether the election was conducted under such circumstances and under such conditions as were conducive to the sort of free and untrammeled choice of representatives contemplated by the Act.” Diamond State Poultry Co., 107 NLRB 3, 6 (1953). We agree with the Fifth Circuit’s explanation of that test stated in NLRB v. Zelrich Company, 344 F.2d 1011, 1015 (1965):

For conduct to warrant setting aside an election, not only must that conduct be coercive, but it must be so related to the election as to have had á probable effect upon the employees’ actions at the polls.

In applying the test for free elections, the Board has established a stricter standard of conduct for the union and the company than for third parties. In Orleans Manufacturing Company, 120 NLRB 630, 633-34 (1958), the Board set forth the differentiated standard and the policy behind it:

While the Board will consider conduct not attributable to any of the parties in determining whether an election should be set aside, the Board accords less weight to such conduct than to conduct of the parties. The Board believes that the conduct of third persons tends to have less effect upon the voters than similar conduct attributable to the employer who has, or the union which seeks, control over the employees’ working conditions. Furthermore, were the Board to give the same weight to conduct by third persons as to conduct attributable to the parties, the possibility of obtaining quick and conclusive election results would be substantially diminished. The employer and the union are deterred from election misconduct by the unfair labor practice provisions of the Act and by the trouble and expense which repeated elections impose upon them. The absence of similar deterrents against third persons who wish to forestall a conclusive election may make them more prone to engage in conduct calculated to prevent such a result.

The Board strenuously argues that Rodriguez’ statements are not attributable to the union since he was not an agent. Counsel for the Board did, however, admit at oral argument that Rodriguez was a “conduit” of information from the employees to the union and from the union to the employees. Devries, the union organizer, testified that the union exercised authority over Rodriguez in his selection as a “contact man” and later by his replacement by someone else when the company employees asked for a change. Rodriguez, it must be remembered, initiated the union organizing by asking Devries to speak to the employees about the benefits of the union.- He was one of the leaders if not the leader in bringing in the union.

Devries admitted to hearing of threats being made against employees opposed to the union but attributed them to rumors being started by the company. He asked at one meeting about the threats, but no employee admitted knowledge of the threats. Although Devries raised the subject, he never repudiated the alleged threats. The Board argues that a disavowal was unnecessary. But it was. If the union wanted to avoid having Rodriguez’ statements attributed to it, it was required that Devries after learning of the threats disclaim any part in their making. It would be unreasonable for the union after learning of the threats to put the burden on the employees at the meeting to come forward and accuse Rodriguez of making threats before a disavowal on its part was required. This principle is nothing new; it was applied to an employer in Hamburg Shirt Corp., 156 NLRB 511, 523 (1965), when the company “did not completely disavow the threats [to close the plant] uttered by [third parties] when the employees called them to [the company’s] attention.” See also Colson Corporation v. NLRB, 347 F.2d 128, 136-137 (8th Cir. 1965).

As mentioned before, the Board strenuously argues that Rodriguez was not an agent. The National Labor Relations Act, 29 U.S.C. § 152(13), provides:

In determining whether any person is acting as an “agent” of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.

When applying that definition to •an employer, the courts have always liberally construed the principles of agency, NLRB v. Arkansas-Louisiana Gas Company, 333 F.2d 790, 795 (8th Cir. 1964). Justice Douglas’ language in International Association of Machinists v. NLRB, 311 U.S. 72, 80, 61 S.Ct. 83, 88, 85 L.Ed. 50 (1940), about agents for employers is equally apropos to unions:

The employer, however, may be held to have assisted the formation of a union even though the acts of the so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of respondeat superior. We are dealing here not with private rights (Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738) nor with technical concepts pertinent to an employer’s legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer’s compulsion, domination, or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees’ choice and for which the employer may fairly be said to be responsible. Thus where the employees would have just cause to believe that solicitors professedly for a labor organization were acting for and on behalf of the management, the Board would be justified in concluding that they did not have the complete and unhampered freedom of choice which the Act contemplates.

The Board poses the question: Was Rodriguez an agent? We believe the better formulation to be whether Rodriguez’ conduct is attributable to the union. We conclude that it was because of his close connection with the union and the union’s failure to repudiate his threats.

The Board argues that Rodriguez’ threats were merely “tough talk”; that Rodriguez was a “blustery individual”; and that there were no specific statements made to any particular persons, and that similar statements are part of many union organizing campaigns. We, of course, are not dealing with other organizing campaigns — only the one involved here. The election was as close as possible. If one employee because he feared physical harm voted for the union rather than against, the election result was tainted since, otherwise, the union would have lost the election. The Board has emphasized the conditional nature of Rodriguez’ threats: If the union lost and if Rodriguez found out who voted against the union, then he would smash fáces. The Board contends that the employees did not have to fear that their votes would be revealed since they knew that the election would be by secret ballot. Here was a relatively small group of employees who knew each other fairly well. Rodriguez knew certain employees to be prounion and stated so in his affidavit. It would be relatively easy in a group of that size to figure out who voted which way by knowing the tally. Granted that this is not a foolproof method, an employee may still have voted out of fear rather than free choice so as to avoid being suspected of being against the union and risking retaliation from Rodriguez.

In the above circumstances, we conclude that Rodriguez’ threats were coercive and attributable to the union and had a probable effect upon the votes of the • other employees in the representation election. The Board abused its discretion validating the election.

The application for enforcement is denied.


author: CECIL, Senior Circuit Judge.

text:
    William STILLE, Plaintiff-Appellee, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.
    No. 73-2134.
    United States Court of Appeals, Sixth Circuit.
    Argued April 12, 1974.
    Decided June 25, 1974.

      William Kanter, Dept, .of Justice, for defendant-appellant; Irving Jaffe, Acting Asst. Atty. Gen., John P. Milanowski, U. S. Atty., Washington, D. C., on brief.
    Don R. Craft, Reamon, Williams, Klukowski & Craft, Grand Rapids, Mich., for plaintiff-appellee.
    Before PECK and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.
   CECIL, Senior Circuit Judge.

On this appeal we review the proceedings in the United States District Court for the Western District of Michigan to determine whether the district judge erred in finding that the decision of the Appeals Council of the Social Security Administration, for the Secretary of the Department of Health, Education and Welfare, was not supported by substantial evidence.

William- Stille, appellee herein, filed a disability application in July, 1970. He alleged that he had become unable to work in December 1967, at age 31, due to a blood clot in his left leg. His claim was initially and upon reconsideration denied by the Social Security Administration. Upon request of the appellee, a hearing was held before a Hearing Examiner of the Bureau of Hearings and Appeals.

In a comprehensive written decision the Hearing Examiner denied the appellee’s claim for a Period of Disability and Disability Insurance Benefits. In his decision he' made the following Findings of Facts and Conclusions of- Law.

1. The claimant is 35 years old. He has a 10th grade education. He has worked as a spot welder, as a filer of castings for auto lights, as a construction laborer and as a carpentry joiner.
2. The claimant met the special earnings requirements for disability purposes under the Act on and prior to December, 1967, the date on which he alleges he became unable to work, and continued to meet said requirements through the date of this decision.
3. The claimant has the residual functional capacity to perform one of his previous occupations as a filer.
4. The claimant has not established an inability to engage in a previous occupation by reason of any medically determinable physical or mental impairment which has lasted or could be expected to last for a continuous period of not less than 12 months.
5. The claimant was not under a “disability” as defined in the Act as amended at any time prior to the date of this decision.

The Appeals Council sustained the decision of the Hearing Examiner and it therefore became the final decision of the Secretary. Thereupon the appellee commenced an action in the District Court pursuant to the provision of the Social Security Act (Sec. 405(g), Title 42, U.S.C.) for review of the final decision of the Secretary in denying his. claim for disability benefits.

In December 1967, the appellee suffered injury to his knee and ankle by jumping off a scaffold. He was hospitalized when his leg became swollen and it was discovered that he had blood clots in his left leg. He was in the hospital for fourteen days and was discharged on December 27, 1967, after the pain and swelling in his leg had subsided. After he was discharged from the hospital he remained at home under his doctor’s order and treated his leg by elevation and heat baths. In July of 1968 the doctor informed him that he could return to work.

The appellee then went to work for Bay Castings Company as a filer. This was primarily a sitting job and he was paid $3.20 an hour. He worked on this job for about six months until he quit in February 1969. He quit Bay Castings in order to go back to construction work. The doctor had given him a rubber stocking and he thought he would be able to do construction work. He worked only three days on a construction job and found he could not make it because of the swelling in his leg. Following this, he went back to his old construction job (Walkers) and worked for three and a half days. This company discharged him when it found he had made a claim for workman’s compensation. (He received $3,500.00 as a lump sum settlement for his injury.) The appellee also worked at Trenway (sp.) for about three months until January 1970. This involved spot welding and while it was not heavy work it required standing. The appellee was paid $2.75 per hour for this work.

Section 405(g), supra, provides for judicial review by the District Court and limits that review to a consideration of the administrative record. It is further provided that the findings of the Secretary as to any fact, if supported by substantial evidence, is conclusive. Lane v. Gardner, 374 F.2d 612 (C.A.6), Ross v. Richardson, 440 F.2d 690 (C.A.6).

To be entitled to a period of disability and disability benefits a claimant must bring himself within the provisions of the various sections of the Social Security Act which define those terms.

Section 423(d)(1), Title 42, U.S.C.,

“The term ‘disability’ means (a) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months;”

(2) (A),

“* * * an individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.”

(3) ,

“A ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

(5),

“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.” (Emphasis added.)

While we have great respect for the analysis and conclusion of the district judge we are not bound by them. We consider first the medical evidence.

After being hospitalized in December, 1967, and remaining at home under treatment until July of 1968, Doctor Helbing advised the appellee that he could return to work. The only medical evidence in the record before the Hearing Examiner is a written report of Dr. Helbing as follows:

“I .don’t feel Mr. Still will ever have a secure future as a laborer. Although he performs well now, with heavy work, lifting and straining, he runs a definite risk of attacks of thrombophlebitis. These would probably increase in severity, leaving Mr. Stille eventually with a chronically swollen and inflammed lower extremity.”

This refers to appellee’s future as a laborer. It says he presently performs well with heavy work, lifting and straining. He runs the risk of thrombophlebitis. This does not appear to us to establish present disability. It is incumbent on the claimant appellee to submit adequate medical evidence of disability. On this state of the record it was not necessary for the Secretary to submit counter medical evidence of disability.

As to the ability to work, the question is not whether the appellee can return to his former work of construction but whether he has the ability to engage in any substantial gainful activity. The appellee himself testified that he could do the type of work that he did at Bay Castings.

“Q. * * * how about the type of work you were doing at Bay Casting? Could you do the job of a filer? Sitting at a bench and filing off the * * *?
A. Yes.
Q. * * * the rough parts of, ah, * * *
A. Uh-huh.
Q. * * * auto parts ? Think you could do that?
A. Yes.
Q. And if you, if you could get that kind of job, you think you could manage it?
A. Yes. I don’t see why I couldn’t.”

Upon this testimony the Hearing Examiner found, “The claimant has the residual capacity to perform one of his previous occupations as a filer.” For this work the appellee received $3.20 an hour for a forty hour week. Section 423 (d)(2)(A) supra, provides,

“* * * an individual * * *” is not under a disability if he can “ * * engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.”

We would consider that such a job of filing would be of such a common nature that certainly it would exist in the national economy.

We have carefully examined.the record in this case and conclude that the findings of the Secretary are supported by substantial evidence.

The judgment of .the District Court is reversed and the case remanded with instructions to dismiss the complaint.


author: BROWNING, Circuit Judge:

text:
    STANDAGE VENTURES, INC., an Arizona corporation, et al., Plaintiffs-Appellants, v. STATE OF ARIZONA and County of Pinal, Defendants-Appellees.
    No. 72-2766.
    United States Court of Appeals, Ninth Circuit.
    June 12, 1974.

      Gove L. Allen (argued), Standage & Allen, Mesa, Ariz., for plaintiffs-appellants.
    Stanley Z. Goodfarb, Donald O. Loeb, Asst. Attys. Gen. (argued), Gary K. Nelson, State’s Atty. Gen., Phoenix, Ariz., for defendants-appellees.

       Honorable Charles B. Renfrew, United States District Judge, Northern District of California, sitting by designation.

   OPINION

Before BROWNING and DUNIWAY, Circuit Judges, and RENFREW, District Judge.

BROWNING, Circuit Judge:

Appellants filed this action against the State of Arizona in a court of that state. Arizona removed it to the United States District Court under 28 U.S.C. § 1441(b) on the ground that the action “arises under the . . . laws . of the United States.” 28 U. S.C. § 1331(a). The district court denied appellants’ motion to remand. The case was tried, and Arizona prevailed on the merits. Appellants contend that the action was not within the jurisdiction of the district court. We agree.

To establish jurisdiction under 28 U.S.C. § 1331(a), it must appear from the face of the complaint, “affirmatively and distinctly” and not merely “argumentatively,” that the suit “really and substantially involves a dispute or controversy respecting the validity, construction, or effect of [a law of the United States], upon the determination of which the result depends.” Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912). “To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.” Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) (citations omitted).

The complaint alleges the following. Appellants are the owners in fee simple of certain described real property. Title rests on patents from the United States. The land conveyed by the patents “by operation of law [was] subject to a right-of-way for U.S. Highway Route 80 which right-of-way has [sic] 100 foot in width.” This is the only right-of-way in favor of Arizona over the property. Arizona commenced reconstruction of U. S. Highway North 80. It occupied property outside the 100-foot right-of-way, and changed the grade of the highway, taking some and damaging other of appellants’ property. Arizona asserts a right, title and interest in this property adverse to appellants. Appellants pray for a decree that Arizona has a 100-foot-wide right-of-way across the property, and no more, for an award of compensation for the taking of their property outside the 100-foot right-of-way, and for damages resulting from the change in grade.

The complaint does not expressly allege that any law of the United States is directly or indirectly involved in the dispute; it is not alone enough that appellants’ title is traceable to such a law. Shulthis v. McDougal, supra, 225 U.S. at 569-570; Joy v. City of St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906); Blackburn v. Portland Gold Mining Co., 175 U.S. 571, 579, 20 S.Ct. 222, 44 L.Ed. 276 (1900).

Arizona argues that various federal questions are either necessarily implied in the present allegations of the complaint, or would appear if the complaint contained the allegations Arizona considers essential to a proper statement of appellants’ claim. It is unnecessary to determine precisely what questions would have been presented by a properly pleaded complaint, for it is clear that if the controversy between Arizona and appellants had been alleged in the complaint in the fullest detail, no federal question sufficient to support jurisdiction would have been disclosed.

The question litigated in the court below was whether prior to the issuance of patents to appellants under the Small Tract Act, 43 U.S.C. § 682a, Arizona had obtained a 400-foot right-of-way across the lands under 43 U.S.C. § 932. There was no dispute as to the meaning or effect of either statute. All parties agreed that 43 U.S.C. § 932 was self-executing, and that a right-of-way came into existence automatically when a public highway was established across public lands in accordance with the law of the state. The issue was whether Arizona had established a public highway 400 feet in the width across these lands in accordance with the laws of Arizona. The resolution of this issue required an interpretation of Arizona' law as to what was required to establish a public highway, and a factual inquiry as to whether Arizona officials had complied with these requirements.

The only conceivable theory upon which it could be argued that these issues arose under federal law is that 43 U.S.C. § 932' incorporated state law regarding the establishment of public highways into the body of the federal law. But this theory has been rejected as a basis for federal question jurisdiction even where the federal statute expressly provided that local law should control. “The recognition by Congress of local customs and statutory provisions as at times controlling the right of possession does not incorporate them into the body of Federal law.” Shoshone Mining Co. v. Rutter, 177 U.S. 505, 508, 20 S.Ct. 726, 727, 44 L.Ed. 864 (1900). See Blackburn v. Portland Gold Mining Co., supra, 175 U.S. at 587-588. See also Hoadley v. San Francisco, 94 U.S. 4, 24 L.Ed. 34 (1876).

In all of the cases relied upon by Arizona there was a dispute as to the meaning of an Act of Congress, the resolution of which controlled the outcome of the litigation. There was no such dispute here.

Appellees make the general assertion that “[t]he issue of the specific extent of the right of way granted to the State under the provisions of 43 U. S.C. § 932 and the extent of the grant made to Plaintiffs or their predecessors in title under the Small Tract Act, 43 U.S.C. § 682a are the essence of this law suit.” As to section 932, as we have said, the real substance of the controversy as to the extent of Arizona’s right-of-way under this section turns entirely upon disputed questions of law and fact relating to compliance with state law, and not at all upon the meaning or effect of the federal statute itself. The record is also bare of any dispute as to the meaning of section 682a. The only possibly related issue raised at trial was that the absence of an express reservation in appellants’ patents barred any section 932 right-of-way. But this question is not substantial (State v. Crawford, 7 Ariz.App. 551, 441 P.2d 586, 590 (1968)), particularly since an official plat disclosing the easement was referred to in the patents and thereby incorporated by reference. United States v. Otley, 127 F.2d 988, 993 (9th Cir. 1942). Such a palpably insubstantial claim will not support federal jurisdiction. Montana Catholic Missions v. Missoula County, 200 U.S. 118, 130, 26 S.Ct. 197, 50 L.Ed. 398 (1906); 1 Barron & Holtzoff, Federal Practice & Procedure § 25, at 122-123 (Wright ed. 1961).

Appellees refer to a number, of other possible federal questions on the apparent theory that these might have given rise to dispositive disputes in the litigation, though in fact they did not. But before a federal question may provide the basis for jurisdiction, “[a] genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto.” Gully v. First National Bank, supra, 299 U.S. at 113.

Reversed.

      . 43 U.S.C. § 932 reads: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”

      . For example, whether the patented lands were “unreserved public lands” within the meaning of 43 U.S.O. § 682a; and whether federal officials complied with federal regulation in issuing the patents.


author: SPRECHER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Terry SMITH, Defendant-Appellant.
    No. 74-1176.
    United States Court of Appeals, Seventh Circuit.
    Argued June 13, 1974.
    Decided June 28, 1974.
    William M. Coffey, Milwaukee, Wis., for defendant-appellant.
    David B. Bukey, U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
    Before STEVENS, SPRECHER and TONE, Circuit Judges.
   SPRECHER, Circuit Judge.

The questions raised by this appeal are the sufficiency of the affidavits presented to support the issuance of a search warrant and the denial of an evidentiary hearing upon defendant’s motión to suppress evidence on the ground that the affidavits contained false material allegations.

Defendant Terry Smith was indicted for conspiracy in violation of 21 U.S.C. § 846 to manufacture and possess with intent to manufacture amphetamines, controlled substances, in violation of 21 U.S.C. § 841(a)(1). A jury found defendant guilty and he was sentenced to two years’ imprisonment with a special parole term of two years. Defendant has appealed on two grounds relating to the district court’s denial of his motion to suppress.

I

The warrant to search the house .located at 5500 North 60th Street, Milwaukee, Wisconsin, was issued by a United States magistrate on the basis of two affidavits, one by Richard L. Ripley, a special agent for the Bureau of Narcotics and Dangerous Drugs (BNDD), and the other by Joseph P. Del Campo, a special agent for the Federal Bureau of Investigation.

The two affidavits “must be read in pari materia.” United States v. Noreikis, 481 F.2d 1177, 1178 (7th Cir. 1973), cert. denied, 415 U.S. 904, 94 S.Ct. 1398, 39 L.Ed.2d 461 as to two defendants and judgment vacated as to third on other grounds, 42 U.S.L.W. 3467 (1974).

Ripley stated that in his capacity as a BNDD agent he had participated in numerous investigations concerning the manufacture of amphetamines and that ether, lithium aluminum hydride and hydrochloric acid are components particularly used in such manufacture, and that beakers, thermometers and other assorted glassware also are implements so used.

Either Ripley or Del Campo, or both, personally observed the following events on April 26, 1973, the day before the issuance of the search warrant:

(1) Defendant, Harasymiw and an unidentified female entered a black and brown Cadillac automobile, with a license registered to defendant, located at 1523-A North 30th Street, Milwaukee.

(2) The three persons drove to Laabs Pharmacy, a pharmacy and chemical supply company, at 911 North 27th Street, Milwaukee, where Harasymiw went inside and later returned to the Cadillac with a package.

(3) The three persons then drove to 4850 North 91st Street, Milwaukee.

(4) Defendant entered and then left the 4850 address carrying a covered, flat, pan-like object and got into the Cadillac and drove to 5500 North 60th Street, Milwaukee.

(5) Defendant alone got into the Cadillac at the 5500 address; he- drove to the Drug Fair Pharmacy, 6354 West Silver Spring Drive, where he went into the pharmacy; he returned to the car with a small package; and returned to 5500 North 60th Street.

(6) Defendant left the 5500 address and returned to 4850 North 91st Street.

(7) Copies of sales receipts obtained from Laabs, Inc. indicated that within the past week Harasymiw had purchased beakers, filter paper, a thermometer, quantities of hydrochloric acid, ethyl ether anhydride, ammonium hydroxide, sodium hydroxide and spatulas.

(8) The Milwaukee County Register of Deeds office indicated that the premises located at 5500 North 60th Street were owned by defendant Terry Smith and Sandra Smith.

Ripley stated that in the afternoon and early evening of April 26, he walked down the alley behind the house at 5500 North 60th Street, observed that all the window shades were drawn and many windows were open, and he detected the smell of ether emanating from the house.

Del Campo’s affidavit stated that he had received information from a reliable informant within the past week. He established the reliability of the informant by the fact that the informant had advised him that Cerae-Pure, Inc., located at N 56 W 13460 Silver Spring Drive, Menomonee Falls, Wisconsin, had been recently burglarized and that a quantity of chemicals had been taken. Del Campo had learned from another FBI special agent that Cerac-Pure had indeed recently found a quantity of lithium aluminum hydride missing and that it appeared that the company’s premises had been burglarized.

The informant gave Del Campo the following information:

(1) On April 24, 1973, defendant and Harasymiw were present when a substance was tested for quality as amphetamine by “shooting up.”

(2) On April 25, defendant, Harasymiw and two unidentified females were involved in the testing by ingestion and sniffing of a substance believed to be a type of amphetamine.

(3) On April 26, the premises at 5500 North 60th Street were being used by defendant and Harasymiw as a laboratory for the production of “mini-meths” and on the premises were located various glassware, vials, ether, chemicals, a pill machine and a pasty substance.

(4) The informant was advised by either defendant or Harasymiw that the pasty substance contained methamphetamine in a final stage of production.

Ripley concluded in his affidavit that on the basis of the surveillance conducted by him and Del Campo and upon the information contained in Del Campo’s affidavit, “I have reason to believe that the premises located at 5500 North 60th Street, Milwaukee, Wisconsin, is currently being used to manufacture methamphetamines.”

In support of his motion to suppress the evidence obtained in the search on April 27, 1973 of the premises located at 5500 North 60th Street, defendant submitted three affidavits.

In separate affidavits by defendant and Harasymiw each denied that he ever advised anyone that the premises were being used as a “mini-meths” laboratory or that glassware, vials, ether chemicals or a pill machine were on the premises or that a pasty substance containing methamphetamines was on the premises. Defendant also stated that the distance between the alley and house at 5500 North 60th Street was about fifty feet.

The third affidavit was that, of a chemist who stated that the temperature in Milwaukee on April 26 was about forty-six degrees and the wind velocity about twelve miles per hour. He also stated:

[,T]hat given the weather conditions present on April 26, 1973, and due to the volatile nature of ether and its tendency to rise rather than move laterally in the air as it evaporates it would be very unlikely that an observer could detect the odor of ether emanating from inside a house at the distance of 50 feet and that if it were possible it would require a very large quantity of the chemical placed in an open container inside the home. ******
. . [T]hat unless the person smelling the odor is a trained chemical observer, it is very possible to confuse the odor of ether with other solvents such as turpentine or some cleaning fluids or even gasoline.

II

Defendant’s first argument attacked the sufficiency of the affidavits supporting the issuance of the search warrant. The Fourth Amendment requires that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation.”

Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), requires that when an affidavit includes hearsay information, “the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was ‘credible’ or his informantion ‘reliable.’ ”

The informant gave Del Campo information that on April 26, 1973 defendant and Harasymiw were using the premises located at 5500 North 60th Street as a laboratory for the production of “mini-meths,” that necessary laboratory equipment was located there, and that the informant was advised by defendant or Harasymiw that a pasty substance also located there contained methamphetamine in a final stage of production. Insofar as Del Campo was concerned the first two statements were hearsay and the third statement, referring to a pasty substance, was hearsay upon hearsay.

Defendant and Harasymiw supported the motion to dismiss with their affidavits that neither of them ever “advised anyone” that 5500 North 60th Street was being used as a “mini-meths” laboratory or that equipment was located there or that a pasty substance contained methamphetamines. Of the three statements, as set forth in the Del Campo affidavit, only the last one referring to the pasty substance depended upon the advice of defendant or Harasymiw. The other two statements can be inferred to have been personal observations of the informant. Accepting the affidavits of defendant and Harasymiw as true, they cast doubt only on the veracity of the “pasty substance” allegation and tend to support the other allegations as being within the personal knowledge of the informant rather than hearsay relayed by the informant to Del Campo.

If there was probable cause to believe that a “mini-meths” laboratory was operating on the premises, it is immaterial whether defendant or Harasymiw advised the informant about the pasty substance.

Mr. Justice Clark said in Rugendorf v. United States, 376 U.S. 528, 532, 84 S.Ct. 825, 828, 11 L.Ed.2d 887 (1964), that “assuming, for the purpose of this decision, that such attack [upon the facial allegations of the underlying affidavit] may be made . . ..”

[t]he factual inaccuracies depended upon by petitioner to destroy probable cause — i. e., the allegations in the affidavit that petitioner was the manager of Rugendorf Brothers Meat Market and that he' was associated with his brother Leo in the meat business —were of only peripheral relevancy to the showing of probable cause, and, not being within the personal knowledge of the affiant, did not go to the integrity of the affidavit.

The credibility of the informant and the reliability of the informant’s information is corroborated in several ways. First, the information regarding the burglary of the Menomonee Falls company was given credence in the established manner of supportive information from another government agent. Rugendorf v. United States, 376 U.S. at 530, 84 S.Ct. 825 (1964).

Second, the surveillance functions of Ripley and Del Campo supported the informant’s information. Suspicious activities such as purchasing the principal components or precursors for the manufacture of a controlled substance, bringing such materials, or some of them, into the premises, drawn blinds, and the odor of ether emanating from the premises all tend to establish probable cause. These activities were tied closely to the defendant by personal observance of him in relation to them, by the operation of an automobile registered to him and by the premises themselves which were owned by him jointly with another person.

Third, the informant’s details, particularly as supported by defendant’s and Harasymiw’s affidavits ruling out hearsay acquisition of knowledge by the informant, sufficiently indicated direct observation and personal knowledge by the informant. United States v. Squella-Avendano, 447 F.2d 575, 581 (5th Cir. 1971). This, in turn, indicated that informant was an eyewitness, victim, co-conspirator or a citizen rather than a professional informant and that the information carried some of its own indicia of reliability and credibility. United States v. Unger, 469 F.2d 1283, 1287 n. 4 (7th Cir. 1973).

Ill

Defendant’s second argument was that the district court erred in denying an evidentiary hearing upon his motion to suppress inasmuch as his affidavits in support thereof constituted an “initial showing” entitling him to a hearing, United States v. Carmichael, 489 F.2d 983, 988 (7th Cir. 1973).

We have shown that defendant’s and Harasymiw’s affidavit did not tend to taint, but indeed tended to support, all of the facts proffered by the informant with the exception of the irrelevant factor of the pasty substance. Furthermore, under Carmichael a defendant “may not challenge the truth of hearsay evidence reported by an affiant.” 489 F.2d at 989. Therefore all that remained for consideration was the chemist’s affidavit.

The Supreme Court has not yet decided whether a search warrant and its supporting affidavits, adequate on their face, may later be impeached. Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); North Carolina v. Wrenn, 417 U.S. 973, 94 S.Ct. 3180, 41 L.Ed.2d 1144 (1974) (White, J., dissenting from denial of certiorari). However we have permitted such impeachment in this circuit, United States v. Roth, 391 F.2d 507 (7th Cir. 1967), provided that the defendant makes an “initial showing” by affidavit or other satisfactory means that a government agent has made an intentional misrepresentation or a negligent misrepresentation of a material fact. United States v. Carmichael, 489 F.2d at 988.

The chemist’s affidavit alleged that given the weather conditions on April 26, 1973, “it would be very unlikely that an observer could detect the odor of ether emanating from inside a house at the distance of 50 feet” and “it is very possible to confuse the odor of ether with other solvents such as turpentine or some cleaning fluids or even gasoline.”

To say that a subjective fact, such as .whether a particular person can detect a particular odor, is unlikely or possibly subject to confusion, does not constitute an initial showing sufficient to entitle the defendant to an evidentiary hearing, particularly where, as here, the subjective fact is one of many elements constituting probable cause.

Judgment of conviction is affirmed.

Affirmed.

      . James W. Harasymiw and Earl O. Waite were named as unindicted co-conspirators.

      . United States v. Noreikis, 481 F.2d 1177, 1178-1179 (7 Cir. 1973), cert. denied as to two defendants and judgment vacated as to third on other grounds, 415 U.S. 904, 94 S.Ct. 1398, 39 L.Ed.2d 461 (1974); United States v. Moore, 452 F.2d 569, 572 (6th Cir. 1971).

      . United States v. Ventresca, 380 U.S. 102, 104, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

      . Newcomb v. United States, 327 F.2d 649, 653 (9th Cir. 1964).

      . United States v. Moore, 452 F.2d 569, 572 (6th Cir. 1971); United States v. Sterling, 369 F.2d 799, 801-802 (3d Cir. 1966). See United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965) : “A qualified officer’s detection of. the smell of mash has often been held, a very strong factor in determining that prohable cause exists so as to allow issuance of a warrant.”