author: WIDENER, Circuit Judge:

text:
    GREAT COASTAL EXPRESS, INC., Plaintiff-Appellee-Cross Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, an unincorporated association, Defendant-Appellant-Cross Appellee.
    Nos. 73-2393, 73-2448.
    United States Court of Appeals, Fourth Circuit.
    Argued April 3, 1974.
    Decided Jan. 21, 1975.

      Sidney Dickstein, Washington, D. C. (George Kaufmann, Anthony’ F. Troy, Ira R. Mitzner and Dickstein, Shapiro & Morin, Washington, D. C., on brief), for defendant-appellant in No. 73 — 2393 and for plaintiff-appellee in No. 73 — 2448.
    J. W. Alexander, Jr., Charlotte, N. C. (James M. Minor, Jr., Richmond, Va., and John O. Pollard, Charlotte, N. C., on brief), for plaintiff-appellee in No. 73-2393 and for defendant-appellant in No. 73-2448.
    Before RUSSELL, FIELD and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This suit, originally filed in a Virginia state court, was removed to federal- district court pursuant to 28 U.S.C. § 1441(b) as a claim arising under §§ 301 and 303 of the Labor Management Relations Act, 29 U.S.C. §§ 185 and 187.

This appeal results from two jury trials in which the appellant-defendant union, International Brotherhood of Teamsters, etc. (IBT), was found to have been responsible for damages resulting from illegal secondary boycotts conducted by three of its local unions in violation of 29 U.S.C. § 158(b)(4).

The employer, Great Coastal Express, Inc. (the company), contended throughout both trials that all of its damages, alleged to be $942,065, resulted from the illegal acts of IBT because the company had not suffered damage until IBT supplemented its legal tactics with illegal ones. The first jury returned a general verdict against IBT for $1,300,000, which the district court set aside on IVT’s motion for judgment non obstante veredicto, or in the alternative for a new trial, as being excessive. See 350 F.Supp. 1377 (E.D.Va.1972). A new trial was ordered to reconsider the issue of damages, and the verdict reached at the second trial was for $806,093, upon which the district court entered judgment.

IBT contends on appeal that the court wrongfully allowed the issue of whether or not the local unions, and their officers and members, were the agents of IBT to go to the jury in the first trial; that the company should not recover any damages because it failed to particularize its losses to those caused by illegal activity as distinguished from losses caused by legal union activity; that the court erred in restricting the second trial to damages; and that the instructions to the second jury were erroneous. For reasons which follow, we affirm the judgment of the district court. Because of our resolution of the case, it will not be necessary to reach the issue of the violent conduct of the unions raised on cross appeal by the company.

The company is an interstate truck common carrier, based in Richmond, whose business consists primarily of transporting general commodity freight from twenty-six Virginia counties into New Jersey and parts of New York, Connecticut and Pennsylvania. The company had been a party to the National Master Freight Agreement with IBT from 1964 until expiration of the 1967 contract on March 31, 1970. The parties reached an impasse during negotiations for a new contract, and the company refused to become a party to the new National Master Freight Agreement. Richmond Local 592 applied for strike benefits from IBT on August 6, 1970 and went on strike August 9, 1970. IBT approved payment on the strike benefits on August 10, 1970, and, on August 13, Local 107 in Philadelphia and Local 641 in Jersey City, New Jersey also went on strike against the company. Retroactive strike benefit payments were also approved by IBT for the latter two locals. All three locals were striking over the company’s refusal to become a party to the National Master Freight Agreement, and no contention is made that the cause for the strike was not quite a legal reason.

The strike initially had little or no effect on the company. It was able to continue all its operations by using office employees, salesmen, supervisors, and newly-hired replacement drivers. Employees not on strike willingly crossed union picket lines at Richmond, and the company began making direct pickups and deliveries in its northern territories so that the picketed Jersey City terminal was practically unused. At the end of the seven or eight month continuance of the strike, however, the company’s freight-hauling business had been effectively shut off. The argument between the parties is over the legality of a roving picket operation, and the extent to which illegal secondary boycott activities damaged the company.

The company’s attack in the first trial was two-pronged, in that it sought damages for alleged secondary boycott activities in violation of LMRA § 303, 29 U.S.C. § 187, and also damages for various alleged acts of violence and sabotage. At the close of the company’s evidence, the court granted defendant’s motion for a directed verdict as to the violence aspect of the case, holding that the burden of proof for finding IBT liable for acts of violence committed is the higher standard of proof of clear and convincing evidence, rather than a preponderance, and that the company had failed to meet this higher standard. See U.M.W. v. Gibbs, 383 U.S. 715, 735, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), construing Norris-LaGuardia Act, § 6, 29 U.S.C. § 106.

We should say here, and we emphasize, that the union does not contest the fact that there was evidence from which a jury could find an illegal secondary boycott. Indeed, the matter is admitted to be clearly a jury question. And the matter having been decided in favor of the plaintiff under proper instructions, it is, in all events, removed from our consideration. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946). The only question before us as to that finding is whether or not a partial new trial was proper.

The company offered evidence as to illegal secondary activities by representatives of customers it had serviced during the strike, and drivers it had hired to replace the strikers, as well as from its own executives and other employees and the president of the Richmond local and an international director of the union.

The principal witness concerning the amount of the company’s damages was a Certified Public Accountant, Lepp, who testified that he had worked with Great Coastal for several years and had examined the books of Great Coastal for periods before, during and after the strike. Lepp stated that he noted a disruption in the company’s general pattern of receipts and profits after the strike started. On the basis of the company’s business growth pattern and operating ratio over a period of time prior to the strike, Lepp projected a figure of anticipated profit during the seven months of the strike as being $322,438. He added to this the actual loss incurred by the company during the strike, $274,895, to reach a total damage figure of $597,333 during the strike. Lepp then computed a projected profit figure of $495,715 for the period from the end of the strike to the end of 1971, subtracted $150,983 actual profit which the company showed in this post-strike period, and added the additional damage figure of $344,732 to $597,333 in arriving at the total damage estimate of $942,065.

The key witness for IBT with respect to union activity after the strike began was William A. Hodson, president of the Richmond Local No. 592. Hodson testified that he generally was in charge of the strike, and was personally involved in the picketing on occasion. The union began utilizing roving, or ambulatory, pickets to follow company trucks to customer business locations, and Hodson testified that these pickets were assigned on a weekly basis to go throughout the company’s territory. All of the roving pickets’ expenses were paid, in addition to strike benefit payments, by the union; Hodson testified that over $49,000 in strike benefits were paid, and that Local 592 had also received $10,000 from IBT, $10,000 from the Eastern Conference of IBT, and $2,500 from various Joint Councils of IBT, apparently in addition to authorized strike benefits, to further assist in financing the strike. Hodson sent a letter to all of the company’s customers, advising them that Local 592 was on strike against Great Coastal because of its unfair labor practices, expressing a desire to lawfully picket on their premises when Great Coastal trucks were present, and requesting their cooperation during the strike. He further testified that a purpose of the roving pickets was to receive assistance or cooperation from the company’s customers, and that he had complained to IBT about sister Teamster locals, not employed by the company, who refused to respect their picket lines. At the first trial he admitted that a purpose of the roving pickets was to induce employees of Great Coastal customers not to unload Great Coastal freight, and at the second trial he admitted such was their primary purpose. Taken as a whole, Hodson’s testimony left little doubt that Local 592 tried to get all IBT local unions, whether they represented Great Coastal employees at other locations or not, to assist in this strike in refusing to unload Great Coastal freight, and that non-teamster unions had also been asked to help.

Evidence, in addition to Hodson’s testimony, indicated that Local 592 kept close contact during the strike with both the Eastern Conference of IBT and IBT headquarters itself, and that almost all of Local 592’s requests for assistance, financial or otherwise, were complied with. IBT was advised on numerous occasions of the existence of the roving pickets. On one occasion, Eastern Conference director and IBT director and vice president Trerotola wrote to over 100 other teamster locals advising them that the roving pickets had not been entirely successful and requested any assistance they could legally give. He enclosed a list of Great Coastal customers.

The gist of Trerotola’s testimony as to IBT’s involvement and assistance during the strike may be summarized in short order; Trerotola stated consistently that he was a busy man, that it was his signature on various letters written to Local 592 and IBT, but that he did not specifically recall signing the letters because of the bulk of correspondence his office receives and the fact that he delegates many responsibilities. He said the Eastern Conference may have assisted Local 592 in getting various correspondence mailed and in obtaining contributions to its strike fund; that IBT often asked other unions to help in any way they could; and that he had requested only lawful assistance from other teamster locals. He said he had no knowledge of any illegal secondary activity in connection with this strike.

The district court’s opinion on the motion for judgment non obstante veredicto following the first verdict of $1,300,000 is reported at 350 F.Supp. 1377. IBT raised the same issue in that motion as here with respect to whether the company had made the requisite showing of agency, and also argued that the jury charges were contradictory, and that the jury had awarded punitive damages in violation of the Labor Management Relations Act, § 303. The court relied on the case of International Brotherhood of Teamsters v. United States, 275 F.2d 610 (4th Cir. 1960), in concluding that there had been a sufficient showing of agency to let the jury consider it. The court also ruled against IBT on the jury charge issue, but did hold that the excessive verdict of damages was partially caused by the jury’s consideration of the gross and vicious conduct attributed to the members of the local union and their sympathizers. The court stated the damage question was complicated and concluded a remittitur was improper. The motion for judgment N.O.V. was then denied, and a retrial ordered on the issue of damages.

At the second trial, the company relied primarily on testimony of its president and vice-president, who testified at length concerning the deterioration of company business and loss of customers, and Lepp’s testimony concerning the $942,065 damages claimed. IBT called no witnesses. Pertinent exhibits from the first trial were introduced by both sides for the jury to consider in arriving at damages. The company again took the position that no damage had been caused until the unlawful secondary boycott commenced. A part of the uncontradicted evidence was that numbers of freight shipments went undelivered because of the illegal secondary boycott actions. The jury concluded that the company had proved damages of $806,093.

IBT’s first contention, that the court should have ruled as a matter of law that there was insufficient evidence for the jury to find an agency relationship between it and the striking local unions, is without merit. The Supreme Court has recognized, in suits brought under the LMRA § 303, that the responsibility of a union for the acts of its officers and members “is to be measured by reference to ordinary doctrines of agency.” United Mine Workers v. Gibbs, 383 U.S. 715, 736, 86 S.Ct. 1130, 1144, 16 L.Ed.2d 218 (1966). This court has previously held, in another context (a criminal case With its more stringent burden of proof), that the IBT constitution provides for such far-reaching control of local unions that the locals, in essence, are not autonomous but are subdivisions of IBT. International Brotherhood of Teamsters v. United States, supra, 275 F.2d at 614. The district court here compared the constitution in effect when the Teamsters case was decided, found no significant differences, and concluded, quite correctly, that under the evidence in this case the jury was entitled to decide the issue. 350 F.Supp. at 1379. That being so, the issue is closed, for the weight of the evidence and the credibility of witnesses is solely within the province of the jury. A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355, 358 — 359, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Lavender v. Kurn, 327 U.S. 645, 652-653, 66 S.Ct. 740, 90 L.Ed. 916 (1946). IBT claims no error as to the evidence admitted, which was ample to show participation by IBT, or in the jury charge, so the jury’s finding of an agency relationship must stand.

The above discussion as to agency applies in large part to the jury finding that IBT had committed illegal secondary acts. As stated before, the defendant admits this was a jury question. The court, at the first trial, very carefully charged the jury as to the law concerning secondary boycotts, and IBT does not contest the charge on appeal. From the testimony and other evidence recited, it goes without saying that the jury had abundant evidence to find that IBT had induced, encouraged, threatened, or coerced employees of Great Coastal customers to withhold the labor from their employers, with whom they had no dispute, and that IBT so acted for the purpose of achieving the unlawful objectives set out in the National Labor Relations Act, § 8(b)(4), 29 U.S.C. § 158(b)(4). The record also contains abundant evidence from which the jury could have found, as it obviously did, that almost every truck of Great Coastal was followed by roving pickets from the inception of the strike; that initially they were to little or no avail; that after requests of Trerotola and Hodson were made to the other unions the roving pickets became almost completely effective because the employees of the consignees would not accept delivery from Great Coastal; and on account of the illegal secondary boycott activities Great Coastal was damaged.

The thrust of IBT’s complaint concerning the second trial, though, is not the sufficiency of the evidence, but that the company should have separated union activity that was clearly lawful, and for which no damages could be had, from the alleged unlawful activities, and thus established the proximate cause of its damages with more specificity. The company’s theory throughout both trials was that it had suffered no damages at issue here because of lawful union activity, but that all of such damages resulted from IBT’s unlawful acts which ultimately shut down business entirely.

What IBT does not take into account is that at the second trial, the trial judge, out of an abundance of precaution, submitted not only the amount of damages, but also the proximate cause thereof to the jury. Thus, there were the two issues tried at the second trial, not only the issue of the amount of damages.

The judge again correctly charged the jury which ambulatory picketing activities were lawful, and which were unlawful, and, among several references to proximate cause in his charge which required the company to prove its damages were proximately caused by the unlawful activities of the union as contrasted to the lawful, told the jury:

“You understand, of course, that you may not award the plaintiff damages simply because of lost money during the strike or for money lost as a result of the union engaging in legal and permitted activity. In a strike sitúation, infliction of losses both upon the union and the employer is to be expected. It is not an occasion for liability unless the losses resulted from illegal strike activity. For this reason, you may only award damages where Great Coastal has proved by a preponderance of the evidence that it was so damaged.”

We think this case is not one where the plaintiff should be faulted out of its judgment for not proving its damages with more exactness and precision. The Supreme Court has held, in an anti-trust case, that where the amount of damages cannot be ascertained with certainty, “it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.” Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931). This circuit has previously adopted the Story Parchment reasoning in an action under 29 U.S.C. § 187 very similar to the one at hand. United Mine Workers v. Patton, 211 F.2d 742 (4th Cir. 1954). IBT’s contention that Local 20, Teamsters Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), would mandate a contrary result is not well founded, for Morton was a completely different case. In Morton, the district court, sitting without a jury, awarded the plaintiff $9,000 damages, under state law as a pendent claim, for loss of one of its customers, as a part of plaintiff’s total damages. The customer had been persuaded by the union to cease doing business with the plaintiff, but its employees had not been approached. The Supreme Court held that the district court had no power to award damages proximately caused by such lawful, primary activities, since permitted by federal law, even though state law would have allowed a recovery in such a case. 377 Ú.S. at 259 — 260, 84 S.Ct. 1253. Along the same line, the court set aside the judgment for loss of certain customers whose business had been discouraged because of the strike, but who were not affected by any unlawful activity, because the union should not be responsible for damage by lawful activity even though it. may have been engaged in unlawful activity elsewhere. 377 U.S. at 261-262, 84 S.Ct. 1253. But the court sustained the judgment of the trial court for damages for unlawful secondary boycott activities, the district court having in its opinion separated the items of damage.

In this regard, IBT argues that the court should have required a special verdict from the jury. F.R.Civ.P. 49 gives district courts broad discretion in determining the form of verdict. While we have no occasion here to decide whether the district judge has uncontrolled discretion in this regard, we do note that there apparently has never been a reversal for abuse of discretion in determining the form of verdict. We hold, with Toth v. Corning Glass Works, 411 F.2d 912, 914, n. 2 (6th Cir. 1969), that where the complaining party made no request for a special verdict to the trial court, it cannot raise the issue for the first time on appeal. Since IBT acceded to the general verdict without complaint in both trials in the court below, it may not now assign error in the district court’s submission of the issues by way of general verdict.

Turning now to the issue of whether a partial new trial was appropriate, we note that such is expressly permitted by F.R.Civ.P. 59(a). The principal case with respect to ordering a new trial as to damages only is Gasoline Products Co. v. Champlin Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931). The court, in Gasoline Products, held “that, where the requirement of a jury trial has been satisfied by a verdict according to law upon one issue of fact, that requirement does not compel a new trial of that issue even though another and separable issue must be tried again.” 283 U.S. at 499, 51 S.Ct. at 515. The court then proceeded to analyze the contracts in dispute to determine whether the damages and liability issues were separable, and concluded that, although the verdict on the contract sued upon by the plaintiff was affirmed, since the first verdict on the counterclaim was for less than the total damages claimed on various contracts, the extent of the damages depended on the extent of the undertakings which were in dispute, and the issues were so interwoven that a second jury could not fairly consider damages alone in a new trial on the counterclaim. And, it is noteworthy that the court did separate and let stand the verdict for the plaintiff on the contract sued upon without a new trial.

This court has considered new trials limited to damages on several occasions since the Gasoline Products case. It is well settled that granting or denying a new trial, either for excessiveness or inadequateness of- the verdict, is discretionary with the trial court, and not reviewable absent a showing of abuse of discretion. Young v. International Paper Co., 322 F.2d 820, 822 (4th Cir. 1963). Most of the cases considered by this court have concerned the district court’s discretion in ordering a partial new trial for inadequate damages, but the same general principles apply whether the verdict is attacked either for inadequacy or excessiveness. DeFoe v. Duhl, 286 F.2d 205 (4th Cir. 1961) (citing Virginia law); see Note, 29 A.L.R.2d 1202 (on inadequacy). The only case where a new trial' on all issues was suggested because of excessive damages was United Construction Workers v. Haislip Baking Co., 223 F.2d 872 (4th Cir. 1955), cert. den., 350 U.S. 847, 76 S.Ct. 87, 100 L.Ed. 754 (1955).

In Haislip Baking, an action based on 29 U.S.C. § 185(b), it is true the court stated that “[t]he verdict on the first trial was so excessive and so manifestly based on improper consideration, instead of upon the record, that it should have been set aside in its entirety and a complete new trial ordered,” but the court then proceeded to direct entry of judgment for the defendant instead of remanding for a new trial. The jury in that case had erroneously not been instructed on mitigation of damages and had erroneously been allowed to consider the parent union as responsible for a wildcat strike. It was this latter consideration the court referred to in its reference to the record. Neither consideration is present here, and even considering the above quoted statement from Haislip as a holding, it does not control the disposition of this case.

In another Fourth Circuit case involving excessive damages, the trial court ordered a remittitur instead of a partial new trial. Ford Motor Co. v. Mahone, 205 F.2d 267 (4th Cir. 1953). This court reversed and ordered a new trial as to all the issues when it was found that one of the jurors had obvious partisan bias in favor of one of the parties, and this in a “hotly contested” trial as to both liability and damages which resulted in a verdict the court found based on pity and sympathy. Likewise, that problem is not presented in this case.

This court has noted that there is “always a presumption in favor of the validity of a verdict if it is the result of honest judgment,” City of Richmond v. Atlantic Co., 273 F.2d 902, 916 (4th Cir. 1960), but has found a new trial on all issues to be required where a totally inadequate verdict was rendered which could only have been a sympathy or compromise verdict. Southern Railway v. Madden, 235 F.2d 198 (4th Cir. 1956), cert. den., 352 U.S. 953, 77 S.Ct. 328, 1 L.Ed.2d 244 (1956). But where there is no substantial indication that the liability and damage issues are inextricably interwoven, or that the first jury verdict was the result of’ a compromise of the liability and damage questions, a second trial limited to damages is entirely proper. Young v. International Paper Co., supra; Mason v. Mathiasen Tanker Industries, Inc., 298 F.2d 28 (4th Cir. 1962), cert. den., 371 U.S. 828, 83 S.Ct. 23, 9 L.Ed.2d 66 (1962).

The matter of a partial new trial has been frequently considered since Gasoline Products and its subsequent articulation in F.R.Civ.P. 59(a), and one of the leading texts states that it “may be regarded as settled that if an error at the trial requires a new trial on one issue, but this issue is separate from the other issue in the case and the error did not affect the determination of the other issues, the scope of the new trial may be limited to the single issue.” 11 Wright & Miller, Federal Practice and Procedure, Civil (1973), p. 93; see also Moore’s Federal Practice, 2nd Ed., 1974, U 59.06. And, we have held in Young v. International Paper Company, supra, that the action of a district judge in setting aside a verdict as to damages, and at the same time refusing to set aside the same verdict as to liability, should be affirmed unless the district judge abused his discretion.

In short, our task here is to determine whether the district court’s conclusion that the first verdict was based on honest judgment by a well-intentioned jury, and that the liability and damage issues were not inextricably intertwined, so that a partial new trial was fair to both parties, was an abuse of discretion, and whether the presumption of the validity of the verdict has been overcome. IBT argues that the evidence of violence heard by the jury, before the court directed a verdict against the company as to that issue, so inflamed the jury, and caused them to render a verdict in excess of damages proven, that the entire verdict was tainted. We cannot agree. The court charged the jury that no acts of violence testified to could be considered in assessing any damages, and that damages were limited to losses which flow proximately from any illegal activity the jury might find. During deliberations, the jury inquired of the court, “What amount of damages lost in dollars is the plaintiff asking? Is it the $942,065 figure?,” to which the court responded “ . . . yes ... I must tell you that you are not to concern yourselves with what the plaintiff asks for unless it coincides with the evidence as you find it.” 350 F.Supp. at 1378. It is obvious from the foregoing that the jury did not consider the $942,065 as a limiting figure, but we are unable to say from the record that the excessive verdict was caused from anything more than a misunderstanding of the jury charge as not limiting the recovery to pecuniary loss as mentioned in the question asked the court. There is no basis to support the defendant’s contention that the first verdict was fatally infected by prejudice. To hold otherwise would be speculation on our part as to what the jury considered in its deliberations, and this we should not do, for, in the words of Mr. Justice Brandéis, “[a]ppellate courts should be slow to impute to juries a disregard of their duties, and to trial courts a want of diligence or perspicacity in appraising the jury’s conduct.” Fair-mount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 255, 77 L.Ed. 439 (1933). Since no error is alleged as to any of the evidence, jury charges, or other relevant proceedings during the first trial, and especially considering the admitted and abundant evidence as to illegal secondary boycott activities, we are of opinion that the presumption in favor of the validity of the first verdict, insofar as it applies to the finding of IBT’s liability, has not been overcome. City of Richmond v. Atlantic Co., supra.

Nor are we able to agree that the issues of liability and damages were so closely intertwined that the second jury should not consider the issue of damages apart from liability. The jury in the first trial, under proper instructions, ascertained liability, and in the second trial the judge ever so carefully charged the jury only that the defendant had been found liable for certain acts of unlawful secondary boycott activity, and having again defined which activities were lawful and which were not, left to the jury the question which of the unlawful acts, if any, caused damage to the plaintiff, and which did not, and also the amount of the damages. We thus find the ruling of the district court as it awarded a partial new trial was not an abuse of discretion and free from exception. We are of opinion the issues in the second trial were properly separated from those in the first, and that the issues of liability and damages were not so inextricably interwoven that a new trial was required on all issues. We are further of opinion this phase of the case is controlled by those cases exemplified by Young v. International Paper Co., and Mason v. Mathiasen Tanker Industries, Inc.

The union’s final contention that the second jury was improperly instructed is likewise without merit. It complains that the district judge only instructed the jury that the activity of the union at certain of the plaintiff’s customers, and as to certain of such customers’ employees, had been found to be unlawful. This instruction, as we have before mentioned, was proper, and indeed could only have been favorable to the defendant, for the plaintiff took the position and offered evidence which tended to show that all its damages claimed in the second trial were caused by the unlawful activities of the defendant as distinguished from the lawful. The defendant had every opportunity, in the second trial as at the first, to contest both the proximate cause of the damage as well as its amount, and yet offered no evidence. The fact that the trial tactics did not succeed may not be laid to the district judge, whose every act complained of was free from exception.

Accordingly, the judgment of the district court is

Affirmed.

      . There is a question of some consequence as to whether or not this argument was properly presented to the district court so that it might be argued here. McGowan v. Gillenwater, 429 F.2d 586 (4th Cir. 1970). We do not reach this procedural question.

      . Although the matter is unclear from the evidence presented, the $49,000 figure apparently includes all union monies, from whatever source within the union, expended on the strike. IBT records introduced in evidence show that it paid $24,160, as authorized strike benefits, to individual strikers.

      . See Skidmore v. Baltimore & Ohio RR., 167 F.2d 54, 66-67 (2nd Cir. 1948), cert. den., 335 U.S. 816, 69 S.Ct. 34, 93 L.Ed. 371 (1948).

      . 9 Wright and Miller, Federal Practice and Procedure, Civil, § 2505, p. 492; 5A Moore’s Federal Practice, 2d Ed., 1974, ¶ 49.03(1), p. 2208.


source: Caselaw Access Project

author: CHOY, Circuit Judge:

license: Public Domain

text:
    ACCO CONSTRUCTION EQUIPMENT, INC., et al., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 12, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 73-2224 and 73-2431.
    United States Court of Appeals, Ninth Circuit.
    Jan. 20, 1975.

      Paul, Hastings, Janofsky & Walker, Leonard S. Janofsky, Paul Grossman, Los Angeles, Cal. (argued), for petitioners (Charging in 74-2431).
    Robert M. Simpson, Rose, Klein & Marias, Los Angeles, Cal. (argued), for intervenor (petitioner in 74-2431).
    Michael Winer of N.L.R.B. (argued), Washington, D. C., for respondent N.L. R.B.
    Before HUFSTEDLER and CHOY, Circuit Judges, and McNICHOLS, District Judge.

       Honorable Ray McNichols, United States District Judge for the District of Idaho, sitting by designation.

   OPINION

CHOY, Circuit Judge:

This labor dispute concerns the validity of a hot cargo clause in a collective bargaining agreement between Local 12 of the International Union of Operating Engineers and several associations representing building contractors in the San Diego and Los Angeles areas. The agreement, which encompasses nearly 10,000 employers, restricts the freedom of the contractors to employ non-union heavy equipment repairmen for, primarily, postwarranty repair work. Under the terms of the agreement all repairs and servicing done “on or near the job-site” on new equipment owned for more than 180 days and used equipment owned for more than 30 days must be performed by a member of the Operating Engineers.

Traditionally, the seller of the equipment has been called upon for servicing and repair. Though most equipment dealers in Southern California are not unionized, the union for years has been quietly content to permit contractors to utilize dealers despite the presence of variants of this hot cargo clause in successive labor-management contracts. However, coincident with an Operating Engineers’ drive to organize the dealers in 1969, the union began to enforce the clause by assessing fines, under the grievance provisions of the agreement, against a few contractors and threatening others with the same penalty. Charges were then brought before the National Labor Relations Board by certain equipment dealers.

The Board found the clause to have the intended hot cargo effect of restricting the contractors from using the services of secondary employers — the dealers. Such provisions are normally forbidden by § 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e), quoted in pertinent part in the margin. The union does not here contest that. However, it does contend that the agreement is protected by the “construction proviso” to § 8(e):

Provided, That nothing in this subsection [(e)] shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work.

The Board disagreed, finding that on-site heavy equipment repair was not such an integral part of the construction process as to be within the proviso. Furthermore, the Board found that the union assessed penalties and threats thereof constituted unlawful assertions of economic pressure in violation of § 8(b)(4)(ii)(B) of the NLRA, 29 U.S.C. § 158(b)(4)(ii)(B). That provision makes it an unfair labor practice

to threaten, coerce, or restrain any person engaged in commerce . where ... an object thereof is . forcing or requiring any person to- cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person

However, the Board declined to order the union to repay the fines actually levied.

The case is here on the petition of the union to review the Board’s order, the cross petition of the Board to enforce its order, and the petition of those contractors penalized to review that portion of the order denying restitution of the fines. We enforce the Board’s order except that we direct it to order refund of the fines.

The § 8(e) Charge

In order to better understand this issue, it will be helpful to give an abbreviated sketch of the manner in which dealers service heavy construction equipment. When a dealer’s repairman is dispatched to a construction site, he makes an initial diagnosis. If the trouble is minor, the repair is performed on the site, though often away from the construction activity. For the most part, these visits are of rather short duration. If the problem is major, as it often is, the machinery is removed to the dealer’s shop. In addition, field repair is frequently performed after the construction laborers have quit for the day — during “down time” — so as to minimize disruption of the project. The significance of all this, as the Board found, is that repairmen work alongside other laborers infrequently and for brief times only.

To the union, this does not matter. Its position is simply that the § 8(e) proviso employs a purely physical test: whatever labor is performed at the site of the project comes within the protective ambit of the provision.

As the Board recognized, however, this ignores the purpose of the congressional exemption. Although the legislative history of the proviso is ofttimes vague and inconclusive, what does emerge is an underlying congressional concern with minimizing jobsite tension. In contrast to most other industries, a variety of craftsmen employed by different contractors and subcontractors work continuously side by side on construction projects. Where the employees of some are union members and the employees of others are not, there is a potential, or so Congress believed, for jobsite conflict. Hence, “the purpose of the section 8(e) proviso was to alleviate the frictions that may arise when union men work continuously alongside nonunion men on the same construction site.” Drivers, Salesmen, Etc., Local 695 v. NLRB, 124 U.S. App.D.C. 93, 361 F.2d 547, 553 (1966) (emphasis added). What appears critical is that the potential for conflict is likely to arise only when the non-union laborers are in frequent and relatively close contact with the union craftsmen.

Given this view, it becomes evident that the on-site heavy equipment repair involved here is not the type of activity encompassed by the proviso. As we have outlined, a repairman works only occasionally and for rather brief times on the construction site. As a result, the danger of union, non-union friction or related work disruption is slight.

Comparable is the situation of those who deliver supplies or materials to the jobsite. Probably in part because their contacts with those working on the construction itself were likely to be insubstantial, Congress exempted them from the proviso. In applying this exemption, for example, the Board has held ready-mix drivers outside the scope of the proviso. E. g., Teamsters, Local 294 (Island Dock Lumber, Inc.), 145 N.L.R.B. 484 (1963), enforced, 342 F.2d 18 (2d Cir. 1965). Such drivers usually mix the cement ingredients while on the construction site and then assist in pouring the finished product. Thus they have some contact with those workmen assigned full time to the site. But, like the equipment repairman (who is, in a sense, delivering a service), the contact is neither Very regular nor prolonged.

We, therefore, enforce the Board’s finding of a § 8(e) violation.

The § 8(b)(4)(ii)(B) Charge

We also think that the Board’s finding of a § 8(b)(4)(ii)(B) violation should be enforced. That section limits the means which can be employed to enforce even a lawful hot cargo agreement. Although the means used here — fines via a grievance clause — -were part of the industry-union contract, we have held that “the construction industry proviso may not be read as permitting the inclusion of provisions into a collective bargaining agreement which purport to authorize 8(b)(4) violations.” NLRB v. International Bhd. of Electrical Workers, 405 F.2d 159, 163 (9th Cir. 1968). Moreover, in that same case we observed that “Congress did not intend to countenance provisions in [§ 8(e)] agreements that provide for enforcement by means of union coercion or economic pressure.” Id. Rather, “it appears that Congress intended to limit the enforcement of [even] proviso-saved agreements to judicial means.” Id. We agree with the Board that this unilateral fining mechanism constitutes a form of coercive economic pressure not judicial in nature.

Restitution of the Fines

We cannot agree, however, that the fines paid by certain of the contractors need not be refunded. To be sure, the Board has wide discretion over its remedial orders. E. g., Marriott Corp. v. NLRB, 491 F.2d 367, 371 (9th Cir. 1974). But once it was determined that the fines were unlawful, restitution with legal interest should have followed in the absence of some rational ground to the contrary. See generally Sheet Metal Workers, Local 223 (Continental Air Filters Co.), 196 N.L.R.B. No. 12 (1972).

On remand the Board shall order refund of these fines unless it has good cause not to do so. Such good cause shall be reported to this court expeditiously; otherwise an amended order complying with this decision shall be prepared and submitted to us for our approval and filing.

      . The Associations located in the San Diego area are: Associated General Contractors of America, San Diego Chapter, Inc., the San Diego Building Contractors Ass’n., and the Engineering & Grading Contractors Ass’n., Inc., San Diego Chapter.
      Those in the Los Angeles area are: Associated General Contractors of California, Inc., the Engineering & Grading Contractors Ass’n., Inc., and the Building Industry Ass’n. of California, Inc.

      . These are about the same as the typical warranty periods.

      . There was also a supplementary provision mandating that there be a union helper to assist the dealer’s repairman for on-site servicing performed within the warranty period. It has the same secondary impact as the clause described in text and thus rises or falls with that clause.

      . There were five fines, levied from August, 1970 to January, 1971, each of about $60 as specified in the agreement. Four of the contractors penalized paid the fines: Frank Kunze, Pollock Excavating, Inc., Febbraro Corp., and Daley Corp.

      . It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void.

      . The facts, as well as the Board’s reasoning, are more fully set forth in the Board’s published decision at 204 N.L.R.B. No. 115 (1973).

      . See Essex County & Vic. Dist. Council of Carpenters v. N.L.R.B., 332 F.2d 636, 640 (3rd Cir. 1964) (“This limited exemption was granted apparently in recognition of problems peculiar to the construction industry, particularly those resulting from sporadic work stoppages occasioned by the traditional refusal of craft unionists to work alongside non-union men on the same project.”); Note, Hot Cargo Agreements Under the National Labor Relations Act: An Analysis of Section 8(e), 38 N.Y.U.L.Rev. 97, 110-11 (1963); cf. Comment, The Landrum-Griffin Amendments: Labor’s Use of the Secondary Boycott, 45 Cornell L.Rev. 724, 753 (1960).

      . This reading of the proviso gives credence to all of its wording, not merely the phrase “on the site”. As the trial examiner observed, the choice is between a standard which requires only that the work covered by the hot cargo clause be performed on the site, or a standard which also examines whether the work is related to the “construction, alteration, painting, or repair of a building, structure, or other work.” The more comprehensive of these recognizes that what is analytically fundamental to the proviso is whether union and non-union laborers will be required to work together for more than brief periods of time.

      . “The proviso does not exempt from section 8(e) agreements relating to supplies or other products or materials shipped or otherwise transported to and delivered on the site of construction.” H.Rep.No.1147, 86th Cong., 1st Sess. 39 (1959), reprinted at I Legislative History of the Labor-Management Reporting & Disclosure Act of 1959, 943, 1959 U.S.Code Cong. & Admin.News, p. 2511.

      . See Sheet Metal Workers, Local 48 v. Hardy Corp., 332 F.2d 682, 686 (5th Cir. 1964); Orange Belt Dist. Council of Painters v. NLRB, 328 F.2d 534, 537 (D.C.Cir. 1964). But see Plumbers, Local 494 (Associated General Contractors), 207 N.L.R.B. No. 58 (1973).

      . The Board’s attempt to distinguish this case on the ground that the fines levied there were not part of an agreement is unpersuasive. That is a distinction without a difference.


author: ADAMS, Circuit Judge.

text:
    William MARINIELLO t/a J & B Shell Station, Inc., Appellant, v. SHELL OIL COMPANY, a corporation of the State of Delaware, authorized to transact business in the State of New Jersey, Frank Marinello and Jerry Ferrara, Defendants on Counterclaim, James E. Gerlock et al., Defendants on Counterclaim of Frank Marinello.
    No. 74-1385.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 12, 1974.
    Decided Feb. 14, 1975.

      Joseph R. Mariniello, Fort Lee, N. J., on the brief, Fierro, Fierro & Mariniello, Fort Lee, N. J., for appellant.
    William Simon, Michael W. Graney, Michael M. Levy, Richard G. White, Howréy, Simon, Baker & Murchison, Washington, D. C., Andrew S. Polito, Michael D. Loprete, Mattson, Madden, Polito & Loprete, Newark, N. J., for appellee.
    Lewis G. Rudnick, Jerome L. Fels, Allen J. Ginsburg, Rudnick, Wolfe, Snyder-man & Foreman, Chicago, 111., Philip F. Zeidman, Arthur I. Cantor, Robert G. Heiss, Brownstein, Zeidman, Schomer & Chase, Washington, D. C., Jerome Gilson, Hume, Clement, Brinks, Willian, Olds & Cook Ltd., Chicago, 111., for International Franchise Association, amicus curiae.
    Jerry S. Cohen, Herbert E. Milstein, Michael D. Hausfeld, Washington, D. C., for National Congress of Petroleum Retailers, amicus curiae.
    Before KALODNER, ALDISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

The issue for resolution in this case is whether the decision of the New Jersey Supreme Court in Shell Oil Co. v. Marinello, which the plaintiff seeks to apply here, is violative of the United States Constitution. The district court determined that the New Jersey decision, which protected franchisees from termination without cause, subverted the purposes of the federal Lanham Act, and held that under the Supremacy Clause the state decision could not survive. We conclude that the Supremacy Clause was not violated, and remand.

A.

Mariniello began to operate a gas station as a franchisee of Shell in 1960. The franchise relationship was established by two documents: a real estate lease for gas station premises controlled by Shell, and an agreement granting the dealer, inter alia, the right to purchase Shell products and to use the Shell trademark.

Until 1969, the lease and dealer contracts were renewed annually. In 1969, a three-year lease and a three-year dealership agreement were executed. The two contracts were signed the same day and ran for identical periods. The new lease provided that Shell could terminate at will upon its expiration, and the dealer agreement permitted termination at any time with ten days notice. In conformity with their provisions, Shell notified Mariniello in 1972 that neither the lease nor dealer agreement would be renewed. Mariniello protested and refused to relinquish the premises.

Mariniello brought suit in the New Jersey state court. He requested continuance of his dealership and lease, and sought damages and an injunction against Shell for discriminatory practices. On Shell’s motion, based on diversity jurisdiction, the case was removed to the federal court for the District of New Jersey. 28 U.S.C. §§ 1332, 1441(a).

After the removal, Shell, in a counterclaim, prayed for possession of the premises, for damages, and for an injunction ■ predicated on Sherman Act violations by gas station operators, including plaintiff and plaintiff’s brother, Frank Marinello. Shell’s motion for partial summary judgment on its claim for possession of the station was granted by the district court, premised on its interpretation of relevant New Jersey law.

In 1973 the Supreme Court of New Jersey, in Shell Oil Co. v. Marinello, a case involving plaintiff’s brother, determined that clauses in franchise agreements permitting termination at will were unenforceable as a matter of state public policy. Moreover, the New Jersey Supreme Court held, where a lease and dealership agreement constitute integral parts of a franchise:

. public policy requires that there be read into the existing lease and dealer agreement, and all future • lease and dealer agreements which may be negotiated in good faith between the parties, the restriction that [a franchisor] not have the unilateral right to terminate, cancel or fail to renew the franchise, including the lease, in absence of a showing that [the franchisee] has failed to substantially perform his obligations under the lease and dealer agreement, i. e., for good cause . . . ,

Although the recently enacted New Jersey Franchise Practices Act had established a good cause standard for termination of franchise agreements entered into, renewed or amended after its effective date, the Act did not apply to dealership contracts in force before that date, including the contracts in question here. The requirement of good cause in Shell was based on New Jersey common law. While the New Jersey Supreme Court took cognizance of the Act, it held that the Act was “not directly control[ling].” However, the New Jersey Supreme Court observed that the statute codified the extant public policy of the state.

Shortly after the decision by the New Jersey Supreme Court, Mariniello returned to the district court and moved to vacate the earlier partial summary judgment that had been entered against him, claiming that that judgment was based on an unwarranted interpretation of New Jersey law. The district court entertained Mariniello’s motion but, by opinion filed January 11, 1974, declined to disturb the summary judgment.

Conceding that the decision of the New Jersey Supreme Court would be applicable to the case before it, the district court concluded that the state court holding violated the Supremacy Clause of the Constitution because it conflicted with the Lanham Act, and was therefore of no effect. The Lanham Act provides a national system for registration of trademarks used in interstate commerce, and grants a registered trademark holder the exclusive right to determine the use of its mark by others. The district court reasoned that the Shell case, by curtailing the power of the franchisor to reserve a contractual right to terminate a dealership and lease, “destroy[ed] the right of an owner of a federally registered trademark to grant a license of that mark for a specific, definite term.” The district court declared that both the Lanham Act and state law, as set forth in Shell, “deal with the same subject matter and occupy the same field, i. e., federally registered trademarks. . The Supremacy Clause prohibits the State of New Jersey from legislating in the field of federally registered trademarks.”

In light of its determination that the New Jersey Shell case did not control because of the Supremacy Clause, the district court found it unnecessary to reach a number of constitutional objections pressed by defendant Shell.

Mariniello here appeals the judgment of the district court that granted Shell possession of the station premises.

B.

When a state law is attacked as violative of the Supremacy Clause, a federal court must determine whether the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Justice Brennan stated for the Court in Florida Lime and Avocado Growers, Inc. v. Paul:

[F]ederal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.

We have concluded that under the cases the New Jersey common law, announced in Shell, is not invalid under the Supremacy Clause by reason of the federal Lanham Act.

In recent times, the Supreme Court has employed the Supremacy Clause sparingly to strike down state law. Even where extensive federal regulatory schemes have been enacted, if there is no express Congressional language of preemption, states have been allowed to act in the interstices of the federal regulatory matrix. Also, states may require more stringent standards than those designed by Congress, and may otherwise adopt law affecting the subject of a federal statute, so long as the federal purpose is not undermined. The contention by Shell that New Jersey is prohibited by the mere existence of the Lanham Act from all lawmaking relating to trademarks is consequently unpersuasive.

Accordingly, Shell can succeed in its Supremacy Clause claim only if it can demonstrate either express preemption by Congress or an incongruity between the state law and the purposes of the federal law. We have been directed to no Congressional manifestation of intent comprehensively to control all aspects of the trademark field, so as to preclude a state from legislating or adjudicating in this area. In an attempt to establish its contention of explicit preemption, Shell refers the court to the section of the Lanham Act dealing with definitions and intent, and Shell maintains that this section evidences an unambiguous Congressional plan to occupy the field to the exclusion of local law. We cannot agree. Despite the adoption of a uniform federal registration scheme, local trademarks may be enforced by statute or common law unless conflict develops with a national trademark.

The question thus becomes whether, as contended by Shell and decided below, the federal system of trademark registration is compromised by the New Jersey rule.

The Senate report accompanying the Lanham Act stated:

The purpose underlying any trademark statute is twofold. One is to protect the public so it may be confident that . it will get the product which it asks for and wants to get. Secondly, where the owner of a trade-mark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats.

Where conflict is alleged between federal and state law, the specific purpose of the federal act must be ascertained in order to assess any potential erosion of the federal plan by operation of the state law. The limited intent of Congress in enacting the Lanham Act is thus crucial to the discussion in the present case. Within the ambit of its intended operation, the Lanham Act expresses a Congressional design to legislate so that the public can buy with confidence, and the trademark holder will not be pirated. If state law would permit confusing or deceptive trademarks to operate, infringing on the guarantee of exclusive use to federal trademark holders, then the state law would, under the Supremacy Clause, be invalid. But such is not the case here. No deception of the public is suggested and no dilution of Shell’s investment in its trademark is alleged to have occurred through the New Jersey common law rule that permits franchisors to terminate a franchise only where good cause exists for such termination.

The interpretation and enforcement of contracts is traditionally within the province of state courts. Invalidation of contract clauses held repugnant to state public policy is a proper exercise of the state judicial function. Under the facts of this case, once the state court has declared a clause invalid as violating the public policy of the state, a federal court may not enforce such a term solely because a contract entails the licensing of a federally protected trademark. Thus, Shell could not insert in its dealer agreement or lease a clause otherwise unenforceable under state law — such as a disclaimer of warranty, a forfeiture, or a usurious interest rate — and then assert a right to enforce such provision based on its status as a registered trademark owner. And this is so even though the freedom of a trademark holder to dictate the terms of its licensing arrangement would thereby be curtailed to some degree.

For the above reasons, we conclude that the decision of the New Jersey Supreme Court in Shell did not offend the Supremacy Clause, since the rule in that case “do[es] not conflict with the operation of the laws in this area passed by Congress.”

G.

Shell asserts strenuously before this Court, as it did below, that although the New Jersey Supreme Court decision did not expressly depend on the New Jersey Franchise Practices Act, it is in fact a veiled retroactive implementation of that Act. As such, Shell claims that the decision is vulnerable to attack under the Impairment of Contracts Clause of the Constitution: “No State shall pass any . . . Law impairing the Obligation of Contracts . . ..” Art. I § 10.

The general rule is clear, that to contravene the strictures of the Constitution requires a legislative enactment. Put another way, the impairment of contracts clause is not violated by a judicial determination. As stated in Cross Lake Shooting & Fishing Club v. Louisiana:

This clause, as its terms disclose, is not directed against all impairment of contract obligations, but only against such as results from a subsequent exertion of the legislative power of the state. It does not reach mere errors committed by a state court when passing upon the validity or effect of a contract under the laws in existence when it was made. And so, while such errors may operate to impair the obligation of the contract, they do not give rise to a Federal Question.

There has developed a tightly circumscribed exception to the general rule that is described in Cross Lake. Columbia Railway Gas & Electric Co. v. South Carolina and Terre Haute & Indianapolis Railroad v. Indiana are cited for the proposition that a state decision may, without express reliance on a statute, “by necessary implication [give] effect to a subsequent law of the state . .” However, the two cases, embodying the deviation from the elemental rule that legislation is required to provoke a claim of unconstitutional impairment of contract, present critically different factual contexts from the case here. In each of the cited cases the state decision worked a substantial forfeiture of land or money in favor of the state government. Here the state is not a party in interest in the litigation, and obtains no material benefits from the state decision.

Moreover, in Columbia Railway and Terre Haute the Supreme Court asserted that the state decision in each case could not withstand judicial analysis independent of the legislation allegedly implemented. By contrast, where the state decision is based on supportable grounds independent of a later statute, the federal courts must accept the state court ruling on state law.

Here the district court determined that the Franchise Practices Act was not “directly and unequivocally implicated” in the state court decision. 368 F.Supp. at 1404. The New Jersey Supreme Court interpreted common law, the district court stated, despite an implicit reliance on the Act “to some extent.” The district court decided that, since the state decision rested on common law grounds independent of the statute, it would “refrain from ruling on” the impairment of contract claims.

The deference due a state’s highest court compels us to respect its holdings. There is no basis for concluding that the New Jersey Supreme Court, contrary to its own assertion that it announced state public policy, in fact retroactively applied the Franchise Practices Act. Accordingly, the claim of Shell under the impairment of contract clause is unpersuasive.

D.

Two additional matters merit attention. First, Shell claims that the application of the New Jersey common law rule to dealer agreements entered into prior to the announcement of the rule deprives it of property without due process of law. It would be improper for the Court to pass on that contention at this time. The disposition of the district court on remand might well render unnecessary a determination of the due process issue. This is so since cause to terminate might be established; and thus the constitutional question would be obviated.

In any case, whether or not the New Jersey rule might in some situations operate so as to achieve an impermissible result under the due process clause may not be decided in the abstract. Inadequate facts are developed in the slim record before the Court on this review of summary judgment. Until we are presented with an application of the New Jersey Shell holding to an established set of facts, an adjudication regarding deprivation of property without due process would be premature and speculative.

The second matter to be notea is whether aDstention is appropriate. Abstention by a federal court is applicable only under narrowly limited and special circumstances, generally where a difficult constitutional question might be avoided by a definitive interpretation of an uncertain state law question by a state court. Federal courts have on occasion abstained from deciding the constitutionality of statutes regulating franchise termination, where the state construction was very uncertain. In contrast to those cases, however, here no state statute of uncertain meaning is before the Court. New Jersey common law, including the Shell decision, provides sufficient background for the district court to determine whether, under such common law, cause for termination exists within the framework of the franchise agreement in this case. Abstention would therefore be inappropriate.

E.

The summary judgment entered against plaintiff Mariniello will be vacated. On remand, the district court should proceed to consider the other issues raised in the case consistent with this opinion, in light of applicable state law and sound constitutional principles.

      . 63 N.J. 402, 307 A.2d 598 (1973), cert. denied 415 U.S. 920, 94 S.Ct. 1421, 39 L.Ed.2d 475 (1974) (hereinafter Shell). Frank Marinello, plaintiff in the New Jersey case, is a brother of William Mariniello, plaintiff here. Each was independently franchised by Shell.

      . 368 F.Supp. 1401 (D.N.J.1974).

      . Plaintiff suggests that no proof of Shell’s federally registered trademark is in the record; however he does not deny that Shell holds the trademark. Since the dealer agreement presumes the existence of the trademark and since the registration is a matter of public record, we accept for purposes of discussion here that Shell holds a federal trademark.

      . The pertinent lease provision reads:
      TERM. The term of this Lease shall be a primary period beginning on July 1, 1969, and ending on June 30, 1972, and from year to year thereafter, but may be terminated by Lessee at any time by giving Shell at least 90 days’ notice, and by Shell at the end of the primary period or of any such subsequent year by giving Lessee at least 30 days’ notice.

      . The opinion is dated Sept. 7, 1972; the order is dated Dec. 27, 1972. An appeal to this Court,was dismissed for want of an appealable final order (No. 73-1191, April 4, 1973).

      . 307 A.2d at 603.

      . N.J.S.A. 56:10-1 et seq., effective Dec. 21, 1971 (Supp.1974).

      . 307 A.2d at 602.

      . Article VI, Clause 2 reads in relevant portion:
      [T]he Laws of the United States shall be the supreme Law of the land any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

      . 15 U.S.C. § 1051 et seq. (1963).

      . 368 F.Supp. at 1406.

      . Id.

      . Although not crucial to its holding, the district court did determine that since no legislation was formally interpreted by the state court, Shell’s claim of violation of the impairment of contract clause (Article I, Section 10) was inapposite. See part C, infra.

      . Mariniello obtained entry of final judgment under F.R.Civ.P. 54(b).

      . It is not contested that the governing state law is that of New Jersey.

      . Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941), quoted in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

      . Florida Lime & Avocado Growers, 373 U.S. at 142, 83 S.Ct. at 1217. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); Hines, supra note 16; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 119, 94 S.Ct. 383, 38 L.Ed.2d 348 (1973).

      . Goldstein v. California, supra note 17 (despite federal copyright law, states can legislate regarding tape recordings); Rice v. Santa Fe Elevator Corp., supra note 17 (notwithstanding pervasive federal scheme, states free to regulate regarding warehouses where Congress has not acted). Kewanee Oil Co. v. Bicron Corp., supra note 17 (trade secrets may be protected by states so long as no conflict created with federal patent law).

      . Florida Lime & Avocado Growers, Inc., supra note 16 (state required higher oil content than Department of Agriculture for marketability of fruit in state); Colorado Anti-Discrim’n Comm’n v. Continental Air Line, 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963) (state anti-discrimination laws more comprehensive than federal).

      . Kewanee, supra note 17; Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960). See Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971), striking down a state statute under the Supremacy Clause for incompatibility with federal bankruptcy law.

      . 15 U.S.C. § 1127:
      The word “commerce” means, all commerce which may lawfully be regulated by Congress.
      The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respecting trademarks, trade names, and unfair competition entered into between the United States and foreign nations.

      . See S.Rep.No.1333, 79th Cong., 2d Sess. (1946), 1946 U.S.Code Cong.Serv. 1274, 1275-1276. Burger King of Florida, Inc. v. Hoots, 403 F.2d 904 (7th Cir. 1968).
      Even where collisions occur with federal trademark holders, the Act provides that earlier local use of identifying names may prevail over national trademarks within a circumscribed zone. 15 U.S.C. § 1115(b)(5). See Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838 (9th Cir. 1969); John R. Thompson Co. v. Holloway, 366 F.2d 108 (5th Cir. 1966).

      . S.Rep.No.1333, 79th Cong., 2d Sess. in 1946 U.S.Code Cong.Serv. 1274.

      . Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974).

      . Bulova Watch Co. v. Steele, 194 F.2d 567 (5th Cir.) affd 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 319 (1952).

      . 15 U.S.C. §§ 1114(1), 1115(a).

      . See, e. g., Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838 (9th Cir. 1969); Burger King of Florida, Inc. v. Hoots, 403 F.2d 904 (7th Cir. 1968); John R. Thompson Co. v. Holloway, 366 F.2d 108 (5th Cir. 1966).

      . Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479, 94 S.Ct. 1879, 1885, 40 L.Ed.2d 315 (1974). See Comment, Constitutional Obstacles to State “Good Cause” Restrictions on Franchise Terminations, 75 Col.L.Rev. 1487 (Dec. 1974); Comment, Federal District Court Declares New Jersey Franchise Act to be an Unconstitutional Regulation of Trademark in Conflict with the Lanham Act, 6 Rutgers-Camden L.J. 155 (1974).

      . 224 U.S. 632, 638, 32 S.Ct. 577, 579, 56 L.Ed. 924 (1912). Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 830 (1924). Columbia Ry. Gas & Elec. Co. v. South Carolina, 261 U.S. 236, 43 S.Ct. 306, 67 L.Ed. 629 (1923); Detroit United Ry. v. Michigan, 242 U.S. 238, 37 S.Ct. 87, 61 L.Ed. 268 (1916). See Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692 (1960); Hale, The Supreme Court and the Contract Clause, 57 Harv.L.Rev. 512, 621, 852, 866-68 (1944).

      . 261 U.S. 236, 43 S.Ct. 306, 67 L.Ed. 629 (1923).

      . 194 U.S. 579, 24 S.Ct. 767, 48 L.Ed. 1124 (1904).

      . Cross Lake Shooting & Fishing Club v. Louisiana, 224 U.S. 632, 639, 32 S.Ct. 577, 579, 56 L.Ed. 924 (1912) (emphasis added).

      . Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 53 S.Ct. 244, 77 L.Ed. 463 (1933); Cross Lake Shooting & Fishing Club v. Louisiana, 224 U.S. 632, 32 S.Ct. 577, 56 L.Ed. 924 (1912); Murdock v. Memphis, 87 U.S. (20 Wall.) 590, 22 L.Ed. 429 (1875); Bacon v. Texas, 163 U.S. 207, 16 S.Ct. 1023, 41 L.Ed. 132 (1896).

      . 368 F.Supp. at 1402, quoting Terre Haute & Indianapolis R.R. v. Indiana, 194 U.S. 579, 589, 24 S.Ct. 767, 48 L.Ed. 1124 (1904).

      . 368 F.Supp. at 1404.

      . For the same reason, that is, because no state statute is challenged, convening a three-judge court is not mandated under 28 U.S.C. §§ 2281-2284.

      . Several decisions have considered an impairment of contract challenge to retroactive application of statutes protecting franchisees from termination. Superior Motors v. Winnebago Industries, Inc., 359 F.Supp. 773 (D.S.C. 1973) (struck down); Willys Motors v. Northwest Kaiser-Willys, Inc., 142 F.Supp. 469 (D.Minn.1956) (upheld); Globe Liquors Co. v. Four Roses Distillers Co., 281 A.2d 19 (Del.S. Ct.), cert. denied 404 U.S. 873, 92 S.Ct. 103, 30 L.Ed.2d 117 (1971) (struck down); Warner-Lambert Co. v. Santarella, No. 0-72-106 (S.Ct.P.R., May 9, 1973) (struck down).

      . See Consumers Oil Corp. of Trenton v. Phillips Petroleum Co., 488 F.2d 816, 819 n. 2 (3d Cir. 1973); Fornaris v. Ridge Tool Co., 423 F.2d 563 (1st Cir.), rev’d per curiam on other grounds, 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970).

      . Shell also contends that the New Jersey rule constitutes a burden on interstate commerce. Like the due process claim, in the absence of an adequately developed record this issue may not properly be reached.

      . Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine; 122 U.Pa.L.Rev. 1071 (1974).

      . Wisconsin v. Constantineau, 400 U.S. 433 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). See Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

      . Fomaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970) (Puerto Rico Franchise Act); Consumers Oil Corp. of Trenton v. Phillips Petroleum Co., 488 F.2d 816 (3d Cir. 1973) (New Jersey Franchise Practices Act); AFA Distrib’g Co. v. Pearl Brewing Co., 470 F.2d 1210 (4th Cir. 1973) (Virginia statute).


author: LAY, Circuit Judge.

text:
    Walter RUSSELL, Appellant, v. STATE OF MISSOURI, Appellee.
    No. 74-1690.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1974.
    Decided March 7, 1975.
    Rehearing Denied March 28, 1975.

      Walter Russell, pro se.
    John C. Danforth, Atty. Gen., and Neil MacFarlane, Asst. Atty. Gen., Jefferson City, Mo., on brief for appellee.
    Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   LAY, Circuit Judge.

The petitioner, Walter Russell, appeals from the denial of a writ of habeas corpus by the United States District Court for the Western District of Missouri, Petitioner challenges his 1959 state conviction of forcible rape, resulting from a plea of guilty in the Circuit Court of Cooper County, Missouri. Petitioner was I7V2 years old at the time of the crime.

The district court in a thorough review of the law and petitioner’s claim denied relief on all but two of his habeas claims. The district court held that petitioner had failed to exhaust his remedies on two of the grounds: (a) that the Superintendent of the Training School for Boys in Booneville, Missouri, lacked authority to turn the petitioner over to the police without direction from the Missouri State Board of Training Schools, and (b) that petitioner was denied his right to counsel at the time he was brought to the.Superintendent’s office for questioning at the time of his arrest.

On review we find that the petitioner’s allegations relating to the involuntariness of his plea, the denial of due process and ineffectiveness of counsel both at his trial and his post-conviction hearing must be denied for the reasons set forth in the well-reasoned opinion of the district court. We reject the two issues held not exhausted by the district court on a different basis.

The first claim challenging the s „ £ r c ' * s 1 t r t f c ¿ t j ( c t f 1 1 £ authority of the training school superintendent to act is a question peculiarly related to state law and must be dismissed as not stating a federal claim for relief. Robinson v. Wolff, 468 F.2d 438, 440 (8th Cir. 1972); Shultz v. Nebraska, 353 F.2d 81, 82 (8th Cir. 1965). The second claim concerning denial of counsel during questioning at the time of arrest was found by the district court not to have been exhausted in the state court by petitioner. This same claim was raised in an earlier proceeding in the federal district court in 1966. Russell v. Swenson, 251 F.Supp. 196 (W.D. Mo.1966). At that time the federal district court held that the petitioner had not exhausted his state remedies as to the claim that “petitioner lacked the effective assistance of counsel at all stages of investigation and prosecution.” Id. at 200. The district court noted that petitioner had filed a prior habeas corpus petition in the Circuit Court of Cole County. The court noted that the state court afforded petitioner a hearing and that on July 16, 1962, the issues were found generally against the petitioner. At that time no appeal was authorized under Missouri procedures. 251 F.Supp. at 200.

However, the district court held:

This does not constitute an exhaustion of currently available state remedies in Missouri. . . . Since the 1962 Cole County habeas corpus hearing and denial occurred prior to the trilogy and therefore was not adjudicated under current federal standards, the petitioner was not precluded thereby in 1964 and thereafter from requesting relief in the trial and appellate courts to secure relief under current federal standards. Until a motion exhausting the available state remedies under Rule 27.26 has been denied on its merits under the standards of the trilogy by the trial court and the Supreme Court of Missouri, this Court should entertain federal habeas corpus only in cases involving exceptional circumstances showing the motion under Rule 27.26 is inadequate or ineffective.

Id. at 201.

Although the petitioner proceeded thereafter in state court, he did not pursue this particular claim for relief. Our earlier decisions dealing with exhaustion of remedies under Missouri procedures required resubmission of a state habeas claim under the amended Rule 27.26 of the Missouri Supreme Court, Y.A.M.R. See, e. g., Cheek v. Swenson, 387 F.2d 339 (8th Cir. 1967); Worley v. Swenson, 386 F.2d 186 (8th Cir. 1967); Baines v. Swenson, 384 F.2d 621 (8th Cir. 1967).

However, we think some doubt is cast on those cases by the United States Supreme Court’s subsequent decisions dealing with exhaustion of state remedies in Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 226 (U.S. Nov. 19, 1974), and Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), as well as the admonition that the exhaustion requirement was not meant to provide the state with more than one full and fair opportunity to decide a question or to require repetitious applications to state courts. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Accord, United States ex rel. Condon v. Erickson, 459 F.2d 663 (8th Cir. 1972).

We need not decide that question here, however, because we find that petitioner’s claim on its face fails to state a claim for relief. The allegation that the petitioner was denied the right of counsel at the time of his 1959 arrest does not allege in any way how these facts were operative and prejudicial at the time of his subsequent voluntary plea of guilty when he was adequately represented by counsel. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Parker v. North Car-

olina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), the Supreme Court observed:

We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred pri- or to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

411 U.S. at 267, 93 S.Ct. at 1608.

Thus, under the circumstances petitioner has failed to plead a claim for federal relief. Cf. Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).

This is the latest in a long series of state and federal post-conviction petitions filed by petitioner Russell. We think it useless to require petitioner to exhaust his state remedy on a claim that even if true fails to allege grounds upon which any post-conviction relief might be granted. See Rice v. Wolff, 513 F.2d 1280 (8th Cir. 1975). Surely, the state courts are not interested, solely for the sake of comity, in processing a merit-less claim.

The judgment of dismissal requiring exhaustion of remedies is vacated; the district court’s order denying habeas corpus relief is otherwise affirmed.

      . We are unaware of any Missouri procedure similar to the New York Code Crim.Proc. § 813-c (now recodified as New York Crim. Proc.L. §§ 710.20(1), 710.70(2)) which allows appeals on constitutional issues relating to adverse rulings in a pretrial hearing notwithstanding a guilty plea. See Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1965). In any event, this is not the situation presented here.