author: HAYS, Circuit Judge:

text:
    Robert WARTH, Individually and on behalf of all other persons similarly situated, et al., Plaintiffs-Appellants. v. Ira SELDIN, Chairman, et al., Defendants-Appellees.
    Nos. 139, 144, Dockets 73-1748, 73-1749.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 27, 1973.
    Decided April 18, 1974.

      Emmelyn Logan-Baldwin, Rochester, N. Y. (Frank A. Aloi, Robinson, Williams, Robinson & Angeloff, Rochester, N. Y., on the brief), for plaintiffs-appellants Warth, Reichert, Vinkey, Harris, Ortiz, Broadnax, Reyes, Sinkler, and Metro-Act of Rochester, Inc.
    Michael Nelson, Rochester, N. Y., and Richard Wesley, on the brief, for plaintiff-appellant Housing Council in the Monroe County Area, Inc.
    Sanford J. Liebsehutz, Rochester, N. Y. (Liebsehutz, Rosenbloom & Samloff, Rochester, N. Y., on the brief), for inter-venor-appellant Rochester Homebuilders Ass’n, Inc.
    Douglas S. Gates, Rochester, N. Y. (Harris, Beach & Wilcox, Rochester, N. Y., on the brief), for defendants-appel-lees.
    The National Committee Against Discrimination in Housing (Norman C. Amaker and Mollie W. Neal, Washington, D. C., on the brief), filed a brief as amicus curiae urging reversal.
    Before MOORE, HAYS and TIMBERS, Circuit Judges.
   HAYS, Circuit Judge:

Appellants brought this suit as a class action against the appellees, the Town of Penfield, New York, and the members of ¿s Town Board, Town Planning Board, md Zoning Board. The complaint alleged that the town’s zoning laws, on their face and as applied, violated appellants’ rights under the first, ninth, and fourteenth amendments to the Constitution of the United States and 42 U.S.C. §§ 1981, 1982, and 1983. The district court dismissed the complaint for lack of standing and failure to state a claim upon which relief could be granted and denied appellants class action status. The court also denied a motion by the Rochester Homebuilders Association, Inc., to intervene as a plaintiff.

We affirm on the ground that appellants lack standing.

I. FACTS

Accepting appellants’ factual allegations as true, as we must, we find the following facts relevant. The Town of Penfield is a suburb of Rochester. Its zoning laws are fairly typical for a suburban community. The town has zoned 90% of all vacant land for single family detached housing. The ordinance also fixes minimum lot sizes, floor areas, lot widths, and setbacks for dwellings. Where the ordinance does permit multifamily dwellings, it limits density to twelve units per acre, limits the portion of the lot which may be occupied by the dwelling, and requires a minimum number of garage and unenclosed parking facilities for each unit.

The ordinance provides for Planned Unit Developments (PUD), which may contain a mixture of single-family and multi-family units. A substantial part of each PUD must be reserved for single-family dwellings with specified minimum acreages.

Appellants’ complaint goes beyond the face of the town’s zoning laws and further alleges certain affirmative acts which it claims deprived them of their rights. These acts involve various proposals by builders for multi-family housing in Penfield. One Joseph Audino on several occasions proposed a PUD for a site known as Beacon Hills. The Town Planning Board first denied the proposal, then accepted it with certain modifications which reduced the permissible density. The Town Board first accepted the proposal with the modifications, then rescinded the necessary rezoning. The town apparently claims that sewer facilities in the district are inadequate to serve the proposed development. The builder now plans to pump sewage to another district. Neither the- builder nor anyone associated with him is a plaintiff in this action.

Penfield Better Homes, Inc., has proposed a project known as Highland Circle for “low moderate income housing.” In September 1969 the Planning Board denied the proposal on a number of grounds. The corporation is not a plaintiff nor associated with any plaintiff in this action.

A proposal by O’Brien Homes, Inc., to build apartment housing was originally denied. The Planning Board has yet to act on a modification of the same proposal.

Appellants also refer to several other proposals for apartment housing which have met with little success. They claim that only two proposals for PUDs have passed the first stage of the necessary three stages of approval. In no case do appellants allege any involvement in these proposals.

Appellants argue that the Penfield zoning laws, on their face and as applied, violate their rights in a number of ways. First, appellant taxpayers of Rochester claim that because of Pen-field’s zoning laws the City of Rochester must assume more than its “fair share” of low income, tax abated housing property, thereby shrinking Rochester’s tax base and forcing property owners in Rochester to pay higher property taxes. Second, appellants claim that Penfield’s zoning practices unconstitutionally bar low and middle income persons, especially members of racial minority groups, from residing in Penfield. Intervenor-appellant Rochester Homebuilders Association, Inc. claims that the town’s zoning practices have deprived its members of the opportunity to construct housing for low and middle income persons, thereby harming the association’s members financially.

Appellants seek a declaratory judgment that Penfield’s zoning practices are illegal, an injunction against enforcing the zoning ordinance, an injunction compelling enactment of an acceptable ordinance, and monetary damages.

II. STANDING

Although the Supreme Court has discussed standing to sue on many occasions, certain aspects of the doctrine continue to present difficulties. Moreover, during the last few years the Court has revolutionized the law of standing. In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), the Court announced a two-pronged test of standing: the plaintiff must allege an “injury in fact,” and must seek to protect an interest “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Data Processing, supra, 397 U.S. at 152-153, 90 S.Ct. at 830. However, the Court has not explained what constitutes an “injury in fact.” See Dugan, Standing to Sue: A Commentary on Injury in Fact, 22 Case W.Res.L.Rev. 256, 258 (1971). Moreover, reliance on precedents is especially hazardous in this area. As the Court remarked in Data Processing, “[generalizations about standing to sue are largely worthless as such.” 397 U.S. at 151, 90 S.Ct. at 829. The Court has laid down some rules in certain areas, such as taxpayer, competitor, and environmental suits. Except for appellants who claim standing as taxpayers, however, these rules are not very helpful here.

Standing is an element of justiciability, “surrounded by the same complexities and vagaries that inhere in justicia-bility.” Flast v. Cohen, 392 U.S. 83, 98, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).

The gist of the question of standing is whether the plaintiff has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). See also O’Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 675, 38 L.Ed.2d 674 (1974); Flast v. Cohen, supra, 392 U.S. at 99, 88 S.Ct. 1942.

A. Appellant Taxpayers of Rochester

Appellants Vinkey, Reichert; Warth, and Harris own land within the city of Rochester. They claim that the Penfield zoning laws exclude low and moderate income persons, thereby requiring Rochester to permit more than its “fair share” of tax-abated housing projects. This shrinks the tax base of Rochester, which then must impose higher tax rates on appellants and others similarly situated in order to meet its fiscal needs.

As a general rule the interests of a federal taxpayer in federal expenditures are too “minute and indeterminable . . fluctuating and uncertain” to provide a basis for standing. Frothingham v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923). The rule applies equally to state taxpayer suits in federal courts. Doremus v. Board of Education, 342 U. S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942 (1968), the Court created an exception to the rule: a federal taxpayer may contest measures alleged to violate “specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power.” Id. at 103, 88 S.Ct. at 1954.

Appellants do not allege a violation of a “specific constitutional limitation” on taxing and spending. Indeed, they do not even allege that Rochester’s taxes or expenditures are unconstitutional. They allege only that certain acts of appellees which do not involve taxing or spending have operated to raise their taxes.

In Flast the Court stated that its decision was “consistent with the limitation upon state-taxpayer standing in federal courts in Doremus . . . .” 392 U.S. at 102, 88 S.Ct. at 1954. Certainly if taxpayer standing was not Justified in Doremus because plaintiff’s interest was too remote, standing cannot be found here, where there is such an attenuated line of causation between the allegedly illegal acts (Penfield’s zoning laws) and the injury of which appellants complain (higher property taxes). A great variety of actions taken by a state or a municipality might arguably affect the rate of taxation in other states or towns. This hardly gives taxpayers in the affected states or towns standing to contest all such actions.

B. Individual Appellants Claiming Standing on Other Grounds

Appellants Broadnax, Sinkler, and Reyes are blacks and Puerto Ricans of low income who reside in Rochester. Each has sought but failed to obtain housing in Penfield. They allege that Penfield’s zoning laws effectively bar low income housing within the town and therefore exclude them and persons similarly situated from living in Penfield. Appellant Ortiz lives in Wayland, New York, and works' in Penfield. He makes the same allegations as appellants Broadnax, Sinkler and Reyes, and in addition claims as injury the commuting expenses he incurs because he cannot live in Penfield.

None of the appellants claims that anyone has refused to sell or lease housing or property to him. Indeed, appellants concede that they cannot afford any existing housing within the town. They do not claim to have any interest in land within the town or any connection with any plan to construct housing for them within the town.

The Supreme Court has not established guidelines as to what constitutes an injury in fact for purposes of standing in this area. Nor have the lower federal courts, in this circuit or otherwise, considered the specific issue raised here. Appellants cite several federal cases in which a party was held to have standing to challenge zoning on civil rights grounds. In most of these cases the party attacking zoning had an interest in land. A few cases in other circuits have taken a short step beyond this. In Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208 (8th Cir. 19.72), and Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir. 1970), developers contested zoning which prevented them from building low income housing projects on parcels of land which they owned. In both cases the court permitted potential residents of the proposed projects to join as plaintiffs. Without deciding whether we approve these holdings, we note that the standing of potential residents in these cases presents an issue very different from the one presented here. The focusing of the controversy on a particular project assures “concrete adverseness.” The concrete possibility of obtaining new and better housing gives potential residents a personal stake in the outcome. The relief requested is not hypothetical.

The requirement of standing helps to insure that “the questions will be framed with the necessary specificity . to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution.” Flast v. Cohen, 392 U. S. 83, 106, 88 S.Ct. 1942, 1955 (1968). See also Barlow v. Collins, 397 U.S. 159, 167, 171, 90 S.Ct. 832 (1970) (Brennan, J., concurring). In the instant case appellants cannot establish this specificity and the necessary “concrete adverseness.”

The doctrine of standing also turns on whether the party in question has a “personal stake in the outcome of the controversy.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Appellants lack such a personal stake. The essence of their complaint is that the zoning practices of the appellees are unfair. However true that charge may be, absent a showing that appellants themselves have suffered from these practices they lack standing to challenge them. Their dispute with appellees reflects primarily a political disgruntlement. They indicate no benefit which a judgment favorable to them would produce. They allege neither capability nor intent to construct housing for themselves on any land which the court might order rezoned as an element of relief.

Indeed, appellants’ prayer for relief demonstrates their lack of personal stake in the outcome and their lack of standing. They request equitable relief in the form of a declaration that the Penfield zoning ordinance is unconstitutional, an injunction against enforcing it, and an injunction requiring enactment of a new ordinance. Granting this relief would not clear roadblocks to currently planned housing which appellants hope to occupy. It would not benefit appellants in any way in the foreseeable future. The prayer for relief also illustrates the lack of specificity. Appellants request neither zoning of any particular parcels nor approval of any specific projects.

In O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669 (1974), plaintiffs brought suit alleging that defendants, various judicial and law enforcement officials of Alexander County, Illinois, were administering the county’s criminal justice system in a discriminatory manner so as to deprive all black and some white citizens of a variety of constitutional rights. The Supreme Court held that plaintiffs had failed to state an Article III case or controversy. 94 S.Ct. at 675. The Court’s opinion noted that the complaint “allege[d] injury in only the most general terms” and that “[n]one of the named plaintiffs is identified as having himself suffered any injury in the manner specified.” Id. at 676. The threat of injury to the named plaintiffs was too “abstract,” “conjectural,” and “hypothetical” to give them a “personal stake in the outcome.” Id. at 675.

Here we have a similar case. Appellants alleged that appellees’ zoning practices deprive low income minority groups of equal protection. However, none of the named plaintiffs has suffered from any of the specific, overt acts alleged. Thus appellants’ personal connection with these practices is too abstract, conjectural, and hypothetical to establish an Article III case or controversy.

C. Metro-Act of Rochester, Inc.

Appellant Metro-Act of Rochester, Inc., is a non-profit corporation whose main purpose is “to alert ordinary citizens to problems of social concern.” Low income housing is one area to which the organization has directed its attention. Appellant claims standing on a number of grounds, none of which is adequate.

First, appellant claims standing because of its “special interest” in housing matters. The Supreme Court’s decision in Sierra Club v. Morton, 405 U.S. 727, 735-740, 92 S.Ct. 1361 (1972), rejected this as a basis for standing.

Second, Metro-Act claims standing as a taxpayer of the city of Rochester. This approach fails for the same reasons stated above with -respect to individual taxpayer appellants.

Third, appellant claims standing as representative of its low income members who seek housing in Penfield. Since we have decided that these individuals lack standing, the organization cannot derive standing from them.

Fourth, Metro-Act claims standing on the ground that one director of Penfield Better Homes is one of its members. We have decided that membership of Penfield Better Homes in Housing Council does not suffice to confer standing. (See discussion, infra.) It follows that membership of a director in Metro-Act certainly cannot confer standing.

Finally, relying on Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), Metro-Act claims standing as representative of its members who live in Penfield. In Trafficante the plaintiffs, tenants of an apartment complex, challenged the allegedly discriminatory ■rental practices of their landlord. They claimed as injury the loss of social, business, and professional benefits of living in an integrated community and embarrassment of being stigmatized as living in a “white ghetto.” They based their claim of standing on section 810(a) of the Civil Rights Act of 1968, 42 U.S.C. § 3610(a), which gives standing to “[a]ny person who claims to have been injured by a discriminatory housing practice . . . . ” The Supreme Court held that plaintiffs had standing.

Trafficante is distinguishable from the present case. We have emphasized that generalizations about standing are largely useless. This is especially true of a case which focused on the peculiarities of one piece of legislation. The Court in Trafficante looked to the legislative history and administrative interpretation of section 810(a). 409 U.S. at 210, 93 S.Ct. 364. The Court also considered the practical difficulties of enforcing the Act and concluded that Congress must have intended persons in plaintiffs’ position to be able to sue as private attorneys-general. Metro-Act has presented us with no similar factors in this case.

The concurring opinion of Justice White, joined by Justices Blackmun and Powell, further suggests that the holding of Trafficante should apply only to cases under the Civil Rights Act of 1968. Justice White expressed doubt that, in the absence of section 810(a), the suit would present an Article III case or controversy. 409 U.S. at 212, 93 S.Ct. 364. The six remaining justices explicitly declined to consider whether plaintiff might also have standing under 42 U.S.C. § 1982. 409 U.S. at 209 n. 8, 93 S.Ct. 364. The reasoning of the majority opinion and the explicit statement of the three concurring justices strongly indicate that a majority of the Court would not find standing for Metro-Act on this basis.

D. Housing Council in the Monroe County Area, Inc.

Housing Council in the Monroe County Area, Inc., is a non-profit corporation whose purpose is to “combat community deterioration through the elimination of racial and economic discrimination in housing.” Its membership includes public and private agencies and organizations seeking to improve the housing of persons of low and moderate income. Plaintiffs below moved to add Housing Council as a party plaintiff. The district court held that Housing Council lacked standing. We agree.

Housing Council alleges no injury in fact to itself. To the extent that it bases standing on representation of various groups of residents in the metropolitan Rochester area, its claim fails for the same reasons given in our discussion of other appellants.

Housing Council also claims standing because Penfield Better Homes Corp., one of its members, has been denied approval of a specific housing project proposal. We note first that if this allegation conferred standing on appellant it would confer only that standing which its member would have had. Housing Council has not indicated that it limits its suit to the dispute over the proposal of Penfield Better Homes. Rather it joins in the more general and abstract claims of other appellants.

We think that Housing Council lacks standing to vindicate even the more limited claims which Penfield Better Homes might have against appellees. It is highly doubtful that an organization has standing to represent its members in most cases under the Civil Rights Act. See Aguayo v. Richardson, 473 F.2d 1090, 1098-1101 (2d Cir. 1973), cert. denied 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974). Certainly the special circumstances favoring organizational standing in cases like NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458-460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and NAACP v. Button, 371 U.S. 415, 428-429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), are absent here. Alleged specific harm is limited to a single member. There is no reason why Pen-field Better Homes cannot assert its own rights as well as or better than Housing Council.

Housing Council therefore lacks standing.

E. Rochester Homebuilders Association, Inc.

Rochester Homebuilders Association, Inc., is a nonprofit trade association of persons and companies engaged in various phases of the residential construction industry in the metropolitan Rochester area. In the court below the association moved, pursuant to Fed.R.Civ.P. 24(b) to intervene as plaintiffs in this action. The district court denied the motion on the grounds that the association lacked standing and that its intervention would create undue delay or prejudice. We agree that the association lacked standing and do not reach the Rule 24(b) issue.

As we noted above, an organization may have standing to assert the rights of its members where there are special circumstances. The rule applies to trade associations as well as to other organizations. National Motor Freight Traffic Ass’n v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963) (per curiam). We find no such special circumstances here.

Moreover, as we noted above with respect to appellant Housing Council, an organization seeking to assert rights of its members has only that standing which its members would have had. Rochester Homebuilders has not tied its claim of standing to specific acts of ap-pellees which have affected its members. Instead it makes the same claims as other appellants. The members of the association would not have standing to raise these claims. The association cannot derive such standing from them.

Affirmed.

      . Penfield Better Homes is a member of appellant Housing Council in the Monroe County Area, Inc. However, this does not suffice to give Housing Council standing. See discussion of Housing Council, infra. Appellants also allege that one director of Penfield Better Homes is a member of appellant Metro-Act of Rochester. This even more clearly fails to confer standing, gee discussion of Metro-Act, infra.

      . These appellants also claim that appellees deprive them of a fair share of their federal tax dollars by refusing to permit federally financed housing in the town.

      . Appellants also claim that appellees’ practices violate their right to travel under the first, ninth, and fourteenth amendments and their right of peaceable assembly under the first and fourteenth amendments.

      . In Data Processing the Court acknowledged the limited authority of standing cases from one area in relation to cases in other areas:

        “Flast was a taxpayer’s suit. The present is a competitor’s suit. And while the two have the same Article III starting point, they do not necessarily track one another.” 397 U.S. at 152, 90 S.Ct. at 829 (emphasis in original).

      . Appellants also base a claim of standing on tbeir status as federal taxpayers. See note 2, supra. This claim does not attack a spending measure of Congress and is not based on a specific constitutional limitation on spending. The claim therefore fails.

      . In Kennedy Park Homes Ass’n, Inc. v. City of Lackawanna, 436 F.2d 108 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971), the Diocese of Buffalo had committed itself to sell thirty acres of laud it owned in Lackawanna to Kennedy Park Homes for low-income housing. Both the Diocese and the Association clearly had an interest in land.
      In Township of River Vale v. Town of Orangetown, 403 F.2d 684 (2d Cir. 1968), this court held that plaintiff town had standing to sue defendant town which had rezoned property adjoining plaintiff on the allegation that the zoning was arbitrary and capricious and would injure plaintiff by reducing its revenues. We held that plaintiff need not be a resident of the town whose zoning practices were challenged. Id. at 686. We did not abandon the requirement, which plaintiff clearly met, that a party have a personal stake in the outcome. The holding reflects the obvious point that landowners may be affected by the zoning of adjoining properties, and that this interest suffices to confer standing. Of. 3 K.C. Davis, Administrative Law Treatise § 22.16 at 283 (1958).
      Neither Boraas v. Village of Belle Terre, 476 F.2d 806 (2d Cir.), prob. juris, noted, 414 U.S. 907, 94 S.Ct. 234, 38 L.Ed.2d 145 (1973), nor Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968), involved the kind of standing issue presented here. In Boraas we granted standing to unrelated persons living together in an apartment to challenge an ordinance limiting the right of unrelated persons to live in the same dwelling. In Norwalk GORE persons displaced by urban renewal had standing to challenge the city’s procedures in relocating them. In each ease plaintiff’s personal stake was clear.
      In most of the civil rights challenges to zoning in other circuits plaintiffs also had some interest in land sufficient to warrant standing. See Southern Alameda Spanish Speaking Org. v. City of Union City, 424 F.2d 291 (9th Cir. 1970); Sisters of Providence v. City of Evanston, 335 F.Supp. 396 (N.D.Ill.1971); Crow v. Brown, 332 F.Supp. 382 (N.D.Ga.1971), aff’d, 457 F.2d 788 (5th Cir. 1972) (per curiam).

      . Appellants’ complaint did not include residents of the Town of Penfield as a class which they purported to represent. Metro-Act has, however, made this claim on appeal.


source: Caselaw Access Project

author: VAN DUSEN, Circuit Judge. ROSENN, Circuit Judge

license: Public Domain

text:
    LIBBEY-OWENS-FORD COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Glass and Ceramic Workers of North America, AFL-CIO-CLC and its Locals Nos. 1, 5, 9, 19, 33 and 418, In-tervenor.
    No. 73-1515.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 17, 1973.
    Decided March 8, 1974.
    Rehearing Denied June 13, 1974.

      Nicholas Unkovic, Leonard L. Schein-holtz, and William D. Armour, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., and Edward E. Hiett, Toledo, Ohio, for petitioner.

      Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Robert A. Giannasi, Asst. Gen. Counsel, and Fredric Sagan, Counsel, NLRB, Washington D. C., for respondent.
    Emil Oxfeld and Abraham L. Friedman, Rothbard, Harris & Oxfeld, Newark, N. J., and David dayman, Columbus, Ohio, for intervenor.
    Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This case is before this court upon the petition of Libbey-Owens-Ford Company (hereinafter the “Company”) to review and set aside a Supplemental Decision and Order of the National Labor Relations Board issued on March 1, 1973, and reported at 202 N.L.R.B.. No. 15. The Board has made a cross-application for enforcement of that order. This court has jurisdiction over these proceedings by virtue of Section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(f).

The Company, an Ohio corporation, with its main offices in Toledo, Ohio, is engaged in the manufacture and sale of glass and glass products. On January 30, 1939, the Board certified the United Glass and Ceramic Workers of North América, AFL-CIO-CLC (hereinafter the “Union”), as the collective bargaining representative in a single bargaining unit consisting of the Company’s production and maintenance employees at eight plants located in Ottawa, Illinois, Charleston and Parkersburg, West Virginia, Rossford and Toledo, Ohio, and Shreveport, Louisiana. Libbey-Owens-Ford Glass Company, 10 N.L.R.B. 1470 (1939). The Company and Union have maintained a continuing bargaining relationship since the certification. Subsequently the Company recognized the Union as the collective bargaining representative also for the production and maintenance employees at two other plants, each of which was recognized as a separate unit with a separate bargaining agreement. One plant, located in Brackenridge, Pennsylvania, was recognized by the Company in 1943, after being acquired by purchase; the second plant, located in Lathrop, California, was recognized in 1962, shortly after it was constructed by the Company.

On July 13, 1966, the Union filed a unit clarification petition (6-UC-4) to clarify the existing multi-plant unit by including the represented employees in the single plant units at Brackenridge and Lathrop. Following a hearing on the petition, the Board issued a Decision and Direction of Election on January 12, 1968, in which it found that the existing separate units and an enlarged multi-plant unit were both appropriate and therefore ordered separate self-determination elections at the Lathrop and Brackenridge plants to permit the employees in the affected single-plant units to determine whether or not they were to be included in the larger, multi-plant unit. 169 N.L.R.B. 126 (1968). Board members Fanning and Jenkins dissented, being of the opinion that the Board lacked statutory authority to hold elections to determine the unit placement of represented employees.

The Company and the Union, in the interim, continued to bargain for the Lathrop plant as a separate unit until the multi-plant negotiations in October 1968. At that time, the Union demanded that the Brackenridge plant, the Lathrop plant, and a new plant at Mason City, Iowa, be included in the multi-plant unit. The Company steadfastly refused to include Brackenridge or Mason City but did include Lathrop in the multi-plant unit.

On December 10, 1968, following the directed elections held on March 20, 1968, the Board issued a Supplemental Decision and Order, in which it found that a majority of the employees in each of the two separate plant units had voted in favor of merger with the multi-plant unit and ordered that the multi-plant unit be clarified by including the Brackenridge and Lathrop plants. 173 N.L.R.B. 1231 (1968). Members Fanning and Jenkins dissented on the basis of their earlier opinion that this election should not have been held.

When the Brackenridge contract expired on September 30, 1969, the Company refused to add the Brackenridge plant as a part of the multi-plant unit and refused the Union’s demands that the provisions of the multi-plant contract be made applicable to Brackenridge employees. The Union filed an unfair labor practice charge against the Company on October 13, 1969 (6-CA-4771), alleging that the Company had violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the Union on behalf of the Brackenridge employees as part of the Board-clarified multi-plant unit. Thereafter an unfair labor practice complaint issued and a hearing was held. In his decision, issued on July 29, 1970, the Administrative Law Judge held that he was bound by the Board’s prior decision in the unit clarification case and that the Company had, therefore, committed an unfair labor practice by refusing to recognize and bargain with the Union as the duly certified representative of the Brackenridge employees as part of the multi-plant unit.

On April 16, 1971, the Board (with members Brown and Kennedy dissenting) issued its Decision and Order dismissing the complaint. 189 N.L.R.B. 871 (1971). Members Fanning and Jenkins based their decision to dismiss on their previously stated view that the Board did not possess statutory authority to determine unit placement of represented employees by conducting elections to clarify existing bargaining units. Chairman Miller concurred in dismissing the complaint, not because of any lack of statutory authority, but because “the Board has consistently refused since 1968 to follow and apply the Libbey-Owr ens-Ford doctrine, even in cases which were virtually indistinguishable,” and because the Board’s “duty to foster stable collective-bargaining relationships is well discharged by leaving the matter of changes in size of a multiplant bargaining unit to be worked out by agreement of the parties.” Members Brown and Kennedy, in separate dissents, indicated that they viewed the underlying certification to be a proper exercise of the Board’s authority, that the Company was under a duty to honor that certification, and that its failure to do so constituted a violation of its duty to bargain imposed by Section 8(a)(5) and (1) of the Act.

Thereafter, the Union filed a petition to review and set aside the Board’s decision with this court. On June 21, 1972, we issued our decision remanding the proceedings to the Board for further consideration. United Glass and Ceramic Workers of North America v. N.L.R.B., 463 F.2d 31 (3d Cir. 1972). We held that the Board acted within its statutory authority in conducting a unit clarification proceeding designed to consider the merger of existing collective bargaining units and that the Board had the requisite authority to conduct the elections at the Brackenridge and Lathrop plants. We noted, however, that because of their respective views of the case, neither members Fanning and Jenkins nor Chairman Miller had passed on the appropriateness of both a multi-plant unit including the Brackenridge plant and of the Brackenridge single-plant unit. Accordingly, the case was remanded to the Board to make such a determination, unless a majority of the Board adheres to the view advanced by Chairman Miller that the determination of the unit should be left to collective bargaining or decides not to proceed with the case for other reasons.

On March 1, 1973, the Board (with Chairman Miller dissenting) issued its Supplemental Decision and Order, in which it reaffirmed its view that the single-plant and multi-plant units constituted equally appropriate units for bargaining for the reasons stated in the initial unit clarification decision. Thus, the Board found that the Company was obligated to bargain with the Union as the exclusive bargaining representative of its employees in the clarified multi-plant unit, and that by refusing to bargain with the Union on behalf of its Brackenridge employees as part of such unit, the Company violated Section 8(a)(5) and (1) of the Act. On April 9, 1973, the Company filed a motion for reconsideration of the Board’s Supplemental Decision and Order, which the Board denied in an order dated May 18, 1973.

The only issue raised by .the Company’s petition to review and set aside the Board’s Supplemental Decision and Order of March 1, 1973, is whether the Board’s underlying unit determination was erroneous. In reviewing that determination, this court is mindful of the fact that the Board is granted broad powers under Section 9(b) of the Act to determine appropriate bargaining units. Thus, the Supreme Court has declared that such a determination “involves of necessity a large measure of informed discretion, and the decision of the Board, if not final is rarely to be disturbed.” Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947). See also N.L.R.B. v. New Enterprise Stone & Lime Co., 413 F.2d 117, 119 (3d Cir. 1969); N.L.R.B. v. David Friedland Painting Co., 377 F.2d 983, 987 (3d Cir. 1967). Nevertheless, as the Supreme Court also observed in Packard Motor Car, supra, a determination of a unit of representation may be so unreasonable and arbitrary as to exceed the Board’s power.

I.

The Company challenges the Board’s unit determination on two grounds. First, it argues that the Board’s finding in the unit clarification proceeding, that a multi-plant bargaining unit which included the Bracken-ridge plant is appropriate, is not supported by substantial evidence on the record as a whole. The Company contends that the record in this case fails to establish, and .indeed demonstrates the absence of, a number of factors generally considered relevant to the issue of the appropriateness of a multi-plant unit. Although this contention appears correct as to the absence of some of these factors, it nevertheless does not preclude the Board from finding that the inclusion of the Brackenridge plant in the unit is appropriate. In determining whether certain employees should be grouped together for collective bargaining, the Board is free to consider a wide variety of factors, and the presence or absence of one or even several of them is not necessarily determinative of the case. See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 156, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). As the Supreme Court pointed out in N.L.R.B. v. Jones & Laughlin Steel Corp., 331 U.S. 416, 422-423, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947), the Board’s unit determinations “are binding upon reviewing courts if grounded in reasonableness,” which “necessarily implies that the Board has given due consideration to all relevant factors and that it has correlated the policies of the Act with whatever public or private interests may allegedly or actually be in conflict.”

In its July 12, 1968, decision, the Board based its determination that an enlarged multi-plant unit was appropriate primarily on two factors: first, that the history of bargaining between the Company and the Union demonstrates a pattern of successful bargaining in a unit of widely scattered plants which are not functionally or operationally integrated, and, second, that the Bracken-ridge and Lathrop plants do not differ significantly from those plants which, over the years, have been successfully integrated into a single, multi-plant unit. 169 N.L.R.B. 126, 127-28. We believe that such reasoning shows a careful consideration by the Board of all the relevant factors and serves the purpose of assuring that the unit in question will be a viable bargaining unit. The only remaining question, therefore, is whether the two elements relied on by the Board are supported by substantial evidence in the record.

The existence of a pattern of successful bargaining in an expanding multi-plant unit is not disputed. The record reveals that for the past 40 years the Company and the Union have been bargaining on a multi-plant basis, and during that period the unit has been enlarged as the Company has acquired new plants. Thus, the unit found appropriate by the Board was virtually employ-ei'-wide — encompassing all but two of the Company’s plants then in existence. It is true, as the Company observes, that there is also a history of successful bargaining between the Company and the Union in the single-plant unit at Brack-enridge. However, that fact alone does not conflict with the Board’s finding that the inclusion of Brackenridge in the multi-plant unit would also be appropriate, for there is no reason to infer that a history of successful bargaining within a single-plant unit would interfere with successful bargaining by the same parties on a broader basis.

The Company does dispute, however, the Board’s finding that Brackenridge does not differ significantly from the other plants in the multi-plant unit. That finding was based on an examination of three factors — location, plant integration, and similarity of operations. After a careful review of the record, we hold that the Board’s conclusion as to each of these factors is supported by substantial evidence. First, the testimony of Melvin B. Burwell, Vice President, Employee Relations, of Libbey-Owens-Ford Glass Company, supports the Board’s finding that the then-existing eight-plant unit “encompassed plants which are between 4 and 986 miles from the Employer’s home office in Toledo, Ohio, and hence is not based on any geographical considerations, while the Brackenridge and Lathrop plants are 240 and 2,367 miles from Toledo, respectively.” 169 N.L.R.B. 126, 128. Second, in light of the evidence demonstrating the operational independence of the plants within the multi-plant unit, the Board could reasonably conclude that “there is generally no greater functional or operational integration between the plants in the multiplant unit than between either of the two disputed plants and the others.” Id. Third, the testimony of Mr. Burwell also supports the Board’s finding that of the eight plants in the multi-plant unit, “five produce raw plate glass and fabricate it, while the other three [like Brackenridge] are engaged solely in fabrication,” and that “all the plants involved are engaged in essentially the same basic operations in that all are producing and fabricating glass and/or glass products.” Id. at 127.

The Company challenges this last finding by pointing out that Brackenridge no longer produces any products which are typically multi-plant operations and that, as the Board noted, Brackenridge is the only plant which fabricates filmed surface glass products and mirrors. This operation includes both conventional silvering of glass by mechanical deposition and the more complex application of metallic films by thermal evaporation in a vacuum. Thus, the Company argues, the skills and functions of employees in the Brackenridge plant are not similar to those in a window glass, plate glass, or float glass plant. However, in view of our approval of the Board’s approach to the unit determination in this ease, the issue is not whether the skills involved at Bracken-ridge differ from those found elsewhere in the multi-plant unit, but whether such difference is greater than that found among the other plants. Since the unit includes plants using a wide variety of techniques for producing and fabricating glass and requiring differing levels of skill and organization, the Board could reasonably infer that the inclusion of Brackenridge’s employees would not introduce a significant new element of diversity.

II.

Second, the Company also argues that the Board’s unit determination in this case is arbitrary, discriminatory and inconsistent with Board policy applied in other cases. See Hotel Employees v. Leedom, 358 U.S. 99, 79 S.Ct. 150, 3 L.Ed.2d 143 (1958); Office Employees International Union v. N.L.R.B., 353 U.S. 313, 77 S.Ct. 799, 1 L.Ed.2d 846 (1957); N.L.R.B. v. Pittsburgh Plate Glass Co., 270 F.2d 167 (4th Cir. 1959); cert. denied, 361 U.S. 943, 80 S.Ct. 407, 4 L.Ed.2d 363 (1960). The Company points out that in every decision subsequent to the unit clarification in this case, the Board has dismissed unit clarifications seeking mergers into larger units. Rohm & Haas Co., 183 N.L.R.B. No. 20 (1970); Cities Service Oil Co., 182 N.L.R.B. 12 (1970); PPG Industries, Inc., 180 N.L.R.B. 477 (1969). Nevertheless, this difference in result does not constitute an arbitrary discrimination against Libbey-Owens-Ford Company. Rohm & Haas and PPG Industries involved companies in the same industry as the Company here, and the facts of those cases closely resemble those in the instant case. However, in both cases, members Jenkins and Fanning voted to dismiss on the grounds rejected by this court here, namely, that the Board lacked statutory authority to merge units, while a single member, member Zagoria, in PPG Industries and Chairman McCulloch in Rohm & Haas, respectively regarded the instant case as distinguishable because the unit here was virtually employer-wide and was based on a substantial history of multiplant bargaining. Since those cases were not appealed, the issue of appropriateness was not determined by a Board majority in either case, and thus the difference in result between those cases and this one is not attributable to a discriminatory application of Board policy. Cities Service, on the other hand, is distinguishable from the instant case in that the union there did not represent all the employer’s plants, but rather was seeking to merge three unrepresented plants with an existing multi-plant unit, and the proposed multi-plant unit was considerably less than employer-wide, since 12 plants would have remained unrepresented.

Finally, the Company contends that the Board’s unit determination in this case is inconsistent with the goal of stabilizing industrial relations, see Kalamazoo Paper Box Corp., 136 N.L.R.B. 134, 137 (1962), for the Union’s constitution and by-laws require the unanimous vote of all members of the wage committee to accept a contract, and thus as a member of that committee Bracken-ridge could prevent the consummation of a multi-plant agreement. To the extent that one important purpose of a unit determination is to foster efficient and stable collective bargaining, that end is accomplished where, as here, the Board correctly finds that a sufficient community of interest exists among the workers in the proposed unit to ensure that such unit will be viable for bargaining purposes. The fact that inclusion in the multi-plant unit may increase the bargaining power of the Brackenridge employees should not serve as a basis for exclusion.

III.

The dissenting opinion contends that because the Board has found that the combination of pre-existing units is an appropriate bargaining unit, the unit determination in this case should be subjected to special scrutiny and that the Board’s decision should not be upheld unless there is evidence to support a conclusion that labor relations will be positively improved by the merger. This approach assumes that the merger of two pre-existing units “will inevitably have a significant negative effect upon stability in labor relations.” No data is presented to support this assumption, and indeed the facts of this case indicate the contrary. On this record, the Lathrop plant has been successfully integrated into the multi-plant unit, and there is no evidence to suggest that that merger had any adverse impact on the labor relations or operations of either the Lathrop plant or any of the other plants within the multi-plant unit. Also, the approach of the dissenting opinion fails to give sufficient weight to the preference of the Brackenridge employees, which in this case was overwhelmingly in favor of merger.

We therefore see no reason to depart from the doctrine that a unit determination by the Board should be disturbed only if it is unreasonable or arbitrary, and that thus the Board may find appropriate the combination of two preexisting units so long as there is evidence that there is a sufficient community of interest among the workers in the proposed unit to insure that the merged unit will also be a viable one. While we would not necessarily have made the same determination as the Board in this case, for the reasons discussed above, we cannot say it was beyond the Board’s power.

For the foregoing reasons, the petition of the Company to review and set aside the March 1, 1973, Supplemental Decision and Order of the Board will be denied, and the Board’s cross-application for enforcement of that order will be granted.

ROSENN, Circuit Judge

(dissenting) :

I dissent because I believe that the Board’s finding as appropriate the inclusion of the Brackenridge plant in the multi-plant unit was arbitrary, unreasonable, and not supported by substantial evidence.

This appeal presents for review one of the most important issues in modern labor relations, the proper determination of the employee unit which is appropriate for collective bargaining between a union and an employer. The problem is compounded, and its impact on the stability of labor relations magnified, because the issue raised here concerns altering a plant unit deemed appropriate for bargaining by both union and management since 1943.

I agree with the majority that the sole issue for review on this appeal is whether the Board’s underlying determination as to the appropriateness of the ten-plant bargaining unit including the Brackenridge plant was erroneous. The majority states that the Board’s determination that the multi-plant unit was appropriate was based upon two factors. First,

the history of bargaining between the company and the Union demonstrates a pattern of successful bargaining in a unit of widely scattered plants which are not functionally or operationally integrated,

and second,

the Brackenridge . . . plant [does] not differ significantly from those plants which, over the years, have been successfully integrated into a single, multi-plant unit.

The majority concludes that the foregoing reasoning by the Board “shows a careful consideration ... of all the relevant factors” and is supported by substantial evidence in the record. I respectfully disagree.

We first note that the determination as to the appropriate bargaining unit in the instant case does not arise in the typical “question of representation” proceeding under § 9(c)(1) of the National Labor Relations Act. Such a proceeding arises when an employer declines to recognize the representative of unorganized employees who allege that they desire collective bargaining.

In the present case, however, there is no question as to which union is to represent the Brackenridge employees. There is no ambiguity or dispute over unit description, no change in employment patterns, no allegation of accretion to the bargaining unit, no dispute over job classification, and no allegations of operational changes in the unit. Rather, the union simply desires to merge two of its own established bargaining units and alter the historical relationship between the employer and the Brackenridge employees. The union unilaterally seeks this goal through Board intervention after failing to achieve that goal through free collective bargaining.

The present case thus involves the attempt by one party to a collective bargaining agreement to combine two established bargaining units, not through negotiations, but by bringing an action before the Board to combine the units over the objection of the other party. I believe that the use of unit clarification proceedings by the Board for this purpose runs counter to the national policy in favor of free collective bargaining, and will inevitably have a significant negative effect upon stability in labor relations.

I accept as the law of the case the holding that the Board does have the authority to “clarify” units in order to combine two preexisting bargaining units by declaring the combined unit “appropriate.” However, I do not believe the standards of appropriateness in such a situation should be the same un-restrictive standards that would govern were the Board to determine in the first instance in a “representation” proceeding the unit in a plant or plants appropriate for collective bargaining. Rather, when the combination of two preexisting units is to be deemed an appropriate bargaining unit, the Board’s determination should be scrutinized with care because of the concomitant disruption to preexisting labor relations which is like-1 ly to result. I believe that only affirmative and convincing reasons should justify the Board’s finding that the combined unit is “appropriate” in a situation such as this.

Turning now to the bases of the Board’s decision as described by the majority, the reasoning is that the company has had successful multi-plant bargaining in the past, and there is no reason why addition of the Brackenridge plant to the multi-plant unit will alter that pattern. I do not find either of these considerations particularly helpful. The thrust of this reasoning is that the merger of the units will not adversely affect the expanded multi-plant unit. It ignores completely the effect that such merger may have upon the established labor relations, commitments and operations at the single-plant unit. It says nothing about why the present separate units are inadequate, and it says nothing about the Board’s own conclusion about whether labor relations will be improved or hurt by the merger. I do not believe that the merged unit can be deemed “appropriate” in these circumstances unless the Board can present some positive justifications for a conclusion that labor relations will be improved by the merger.

The majority finds it urineeessary to consider factors other than those considered by the Board. For this it relies on a quotation from N.L.R.B. v. Jones & Laughlin Steel Corp., 331 U.S. 416, 422-423, 67 S.Ct. 1274, 1278, 91 L.Ed. 1575 (1947), stating that the Board’s unit determinations

are binding upon reviewing courts if grounded in reasonableness A proper determination as to any of these matters, of course, necessarily implies that the Board has given due consideration to all the relevant factors and that it has correlated the policies of the Act with whatever public or private interests may allegedly or actually be in conflict.

I do not believe, however, that the Board’s determination in a case such as this is “grounded in reasonableness” when the Board gives little or no weight to the factors which militate against the merger of two preexisting bargaining units. I cannot say that the Board “has given due consideration to all the relevant factors” when it treats the determination of “appropriateness” in the present ease in the same way as it treats the question in the absence of two preexisting bargaining units. I cannot say that the Board “has correlated the policies of the Act with whatever public or private interests may . be in conflict” when it applies a per se rule that the merged unit is appropriate simply because it would have been appropriate in the first instance.

The Board gives little or no weight to numerous factors which I believe weigh heavily against a finding that the merged unit is “appropriate.” The Board considers the history of multi-plant bargaining, but gives little weight to the uninterrupted history of separate bargaining by the Brackenridge plant since its acquisition in 1943. The Board considers as mere “technical problems” the fact that only “bargaining history and employer opposition have prevented” the establishment of the combined unit. While the Board may consider these factors “technical,” in my opinion they go to the heart of the matter at issue.

I would also place considerable weight on the question of whether the unit to be merged out of existence is functionally or operationally integrated with the larger unit. The Board concedes that “there is no basis for concluding that the operations of the various plants are integrated.” In fact, the Brackenridge plant is completely autonomous. It has its own plant manager and managerial staff. It hires and discharges its own employees. It makes its own work assignments, and does not interchange its production and maintenance employees with employees in other plants. There is no interplant seniority. The Bracken-ridge plant manager reports to the vice president in charge of special products manufacturing, while the plant managers in the multi-plant unit report to a vice president in the managing area. Brackenridge does its own customer billing, prepares its own payrolls, and does its own purchasing and invoicing.

The wages, pensions, and fringe benefits at Brackenridge differ from those at the multi-plant unit. The Bracken-ridge work force is over fifty percent women, a significantly greater proportion of women than the other plants. A plant executive testified that they were secondary wage earners, less interested in pensions than in other areas of compensation.

The Board apparently gives some weight to the secret ballot election it conducted among the Brackenridge employees after it found that the merged unit would be appropriate. This reliance on employee preference, however, is not decisive and heretofore has never been utilized by the Board except in representation proceedings. In any event, if the Board is to rely upon the preferences of the Brackenridge employees, it should also be obliged to poll the employees in the existing multi-plant unit to determine whether they favor or oppose the addition of the Brackenridge employees to their unit. These employees might well oppose the merger, particularly if they felt that the enlargement of the unit might complicate or protract labor negotiations.

Neither before nor after this case has the Board upheld an attempt by means of a unit clarification petition to merge two preexisting units over the opposition of one party to the collective bargaining agreement with the units. Fbr example, in Bath Iron Works Corp., 154 N.L.R.B. 1069 (1965) employees in both the parent and the wholly-owned subsidiary were represented by the same union, albeit in separate bargaining units. When the parent merged the subsidiary into itself and operated the former subsidiary as a division, the union argued before the Board that the bargaining units should be merged because the employees in both units performed essentially the same duties. The employer, on the other hand, contended that the division should remain a separate unit because the employees possessed distinct skills and performed distinct functions. The Board refused to combine the units, finding no significant change in the operations of the former subsidiary. The Board held that' although it could not say that only separate units would be appropriate, the corporate reorganization had not “effected such changes in the status of the employees as would require us to find that the two units have been merged.” The Board thus held that even though the merged unit might be appropriate, the considerations in favor of the merged unit had not been established. In the present case, of course, the Board relies solely upon a finding of “appropriateness” for permitting the merger of the units without taking into account any reasons why the merged unit would be preferable to the preexisting separate units.

Nor has the unit clarification procedure which the Board adopted in its decision of January 12, 1968, ever been applied to a single case which arose after that decision. As Chairman Miller noted in his concurring opinion to the Board’s Decision and Order of April 16, 1971, dismissing the unfair labor practice complaint,

The tortuous history of this proceeding, standing along, should persuade us that the principle which the Board so boldly announced in 1968 has proved to have extremely limited utility. The lesson of that history is confirmed by the fact that the Board has consistently refused since 1968 to follow and apply the Libbey-Owens-Ford, doctrine, even in cases which were virtually indistinguishable.
I conclude from this progression of events, and for reasons briefly outlined below, that we must candidly acknowledge that we have abandoned our earlier decision and that we have reverted to those healthy principles which formerly governed our treatment of multi-plant bargaining units. For my part, I welcome the return to those principles. In my judgment, our duty to foster stable collective-bargaining relationships is well discharged by leaving the matter of changes in size of a multi-plant bargaining unit to be worked out by agreement of the parties.

189 N.L.R.B. No. 139 (1971) (concurring opinion).

Nor has the Board applied the doctrine to any cases since Chairman Miller wrote these words in 1971. This was recognized by Chairman Miller in his dissent to the March 1, 1973, Supplemental Decision and Order which is here on a petition for review. 202 N.L.R.B. No. 15 (1973) (dissenting opinion).

The majority attempts to distinguish the cases denying unit “clarification” since 1968, either on their facts or on the grounds that the Board’s statutory authority was not established on appeal at the time they were decided. It cannot, however, avoid the fact that the doctrine has yet to be applied to any case other than the one at hand. I agree with Chairman Miller that there is “inequity inherent in joining in the issuance of this ‘last oneway ticket.’ ” Id.

I would grant the company’s petition to set aside the order and I would deny the Board’s application for enforcement.

      . The plant at Parkersburg, West Virginia, was removed from the multi-plant unit in 1941, pursuant to the Board decision in Lib-bey-Owens-Ford Glass Company, 31 N.L.B. B. 243 (1941). In 1958, the Company sold this plant.

      . At the hearing in the unfair labor practice case, the Union also filed a petition for clarification (6-UC--43) to include the Mason City, Iowa, plant as part of the multi-plant unit. The Company moved to have the petition made a part of this case, but the Administrative Law Judge denied that motion. On April 16, 1971, the Board (with members Brown and Kennedy dissenting) handed down its decision dismissing the petition to include the Mason City plant in the multi-plant unit. 189 N.L.R.B. 869 (1971). Members Fanning and Jenkins voted for dismissal for the reasons stated in their dissenting opinions in 169 N.L.R.B. 126, 129, and Chairman Miller, for the reasons stated in his concurring opinion in 189 N.L.R.B. 871, 871-72.

      . “(b) The Board shall decide in each case whether, in order to assure the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof . . . .” 29 U.S.C. S 159(b).

      . In Packard Motor Car, supra, 330 U.S. at 491, 67 S.Ct. 789, the Supreme Court made it clear that the scope of review, insofar as the Board’s unit determination depended on facts, was limited to whether there was substantial evidence to support the Board. See also N.L.R.B. v. Industrial Rayon Corp., 291 F.2d 809 (4th Cir. 1961); N.L.R.B. v. Plankinton Packing Co., 265 F.2d 638 (7th Cir. 1959).

      . The Company claims that the evidence demonstrates the absence of such factors as a history of multi-plant bargaining that includes the plant in question, centralization of management, employee inter-change among plants, similarity of skills and functions of employees, inter-dependence or functional integration of operations, and geographical proximity.

      . The Court in Pittsburgh Plate Glass, supra, stressed such factors as the wishes of the employees, the similarity of the working duties and conditions, the character of the various plants, and the anticipated effectiveness of the bargaining unit in maintaining industrial peace.

      . As the Board noted, neither party sought their inclusion in the multi-plant unit, since one was an experimental plant manned solely by technical employees, and the other was a subsidiary engaged in the production of plastic and metallic dies, patterns, and molds. 169 N.L.R.B. 126, n. 5.
      The later establishment of a new plant at Mason City was not relevant to the Board’s decision, since, as the Board noted in its Supplemental Decision and Order of March 1, 1973, “the unit determination was proper and correct when made.” 202 N.L.R.B. No. 15 at n. 17. Moreover, nothing in the record indicates one way or the other whether the Mason City plant would also be includable in the multi-plant unit, based on the criteria applied with respect to Bracken-ridge, for the Board dismissed the Union’s petition to merge Mason City into the mul-ti-plant unit for the same reasons it originally dismissed the complaint in the instant case. 189 N.L.R.B. 869.

      . The Company also cites as evidence of the difficulty in merging Brackenridge into the multi-plant unit the differences in benefits, and in particular the fact that the pension benefit in the multi-plant unit was $4.25 per month per year of service, while the normal pension for Brackenridge was $2.50 per month per year of service. The reason for. this variation, according to the testimony of Mr. Bur-well, is that Brackenridge employs over 50% women, many of whom are secondary wage earners whose interests are less in pensions than in money in other areas. This difference does not appear to be a complete obstacle to successful bargaining between the Company and an enlarged multi-plant unit which included Brackenridge. In his testimony at the initial hearing on the unit clarification petition, Mr. Burwell also adverted to a similar difficulty in dovetailing the youthful Lathrop workforce into the multi-plant pension system, but, as noted above, the Company later agreed to the inclusion of Lathrop. It is not the function of this court to pass on the wisdom of multi-plant bargaining as being in the best interests of the Brackenridge employees, who voted overwhelmingly (391 to 19) for inclusion in the multi-plant bargaining unit.

      . At the initial hearing in this case, there was testimony that although Brackenridge was then engaged in the production of automotive ventilators, that aspect of the business was being phased out.

      . The Company also cites American. Saint Gobain Corp., Case Nos. 6-AC-13 and 6-UC-23, where petitions filed by the Union were dismissed by the Regional Director on the authority of PPG Industries. Since this was not a decision of the Board, it has little bearing on the question of discrimination and need not be considered.

      . Recognizing the problem presented by the language in note 4 of the dissenting opinion, we note that the situation described there is not presented by the record in this case.

      . See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. at 156, 61 S.Ct. 908, 85 L.Ed. 1251. See also N.L.R.B. v. Ideal Laundry and Dry Cleaning Co., 372 F.2d 307, 309 (10th Cir. 1967), where the court said, “Indeed, we think the relevancy of the wishes of employees concerning their inclusion or exclusion from a proposed bargaining unit is inherent in the basic right to self-organization under § 7 of the Act.”

      . All other contentions of the Company have been considered and rejected.

      . “[U]nit determination may profoundly affect labor management relations and constitutes a heavy proportion of the work of the NLRB.” Samoff, Law School Education in NLRB Representation Cases, 21 Lab.L.J. 691, 695 (1970), quoting Dean Bok in Discussion, Proceedings of the 19th Annual Winter Meeting, Industrial Relations Research Association at 99-104 (1966).

      . I agree with the view originally expressed by Board members Fanning and Jenkins that the Board does not have statutory authority to conduct employee elections in a unit clarification proceeding such as this involving the merger of two previously appropriate units. Bee 169 NLRB No. 2 (concurring and dissenting opinion). In my opinion the Board exercised a power neither directly nor impliedly supported by the National Labor Relations Act.
      I am constrained, however, to accept this court’s holding on the prior appeal as the law of the case. I do not believe that the prior holding is decisive of the issue raised on this appeal.

      . The union first requested in October 1965 that the Brackenridge employees be included in the multi-plant unit. The request was then refused by the company and dropped by the union. The union made the same request in the October 1968 multi-plant negotiations, but the company refused. When the separate Brackenridge contract expired in September 1969, the company again refused the union’s demand that. the multi-plant contract be made applicable to the Brackenridge employees.

      . For example, a union decides to organize two plants of an employer. It is apparent to the organizer that the union has a better chance of winning at plant “A” than at plant “B”. It therefore petitions for a single unit at plant “A” and after winning the election is certified on a single unit basis. Later when chances of success at plant “B” seems [sic] brighter, it petitions for an election at plant “B” on a single unit basis. It wins the election and is certified, again on a single-plant unit basis. It then petitions for clarification of the unit to include both plants. The process can continue ad infini-tum as the union continues to “nibble away” at the employer. Such a procedure does not lead to industrial stability — it leads to chaos, confusion and conflict.
      Brief for Employer at 48, PPG Industries, Inc., No. 6-UC-8 (N.L.R.B., filed December 9, 1966) quoted in Abodeely, The NLRB and the Unit Clarification Petition, 117 U.Pa.L. Rev. 1075, 1100 (1969).

      . In refusing to conduct a similar election in the unit clarification proceedings in Pittsburgh Plate Glass Industries, 180 N.L.R.B. 477 (1969), the Board stated:
      Our “informed discretion” — to use the words of the Supreme Court in the Packard case (330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040) — tells us that in circumstances such as these the Board should not gamble on stability of bargaining by delegating to employees choice of the enlargement of the multi-plant unit. ...”

      . Since its inception the unit clarification petition has been used only where there has been some change in the employment pattern. The creation of a new job classification, the movement of personnel, or the acquisition of a new plant have all involved some change which would clearly affect the delineation of the existing bargaining unit. Where, however, there has been no change in the employment pattern, the Board has found no need to clarify the bargaining unit. Unfortunately, the decision in Libbey-Owens-Ford completely ignored these precedents.
      Abodeely, The NLRB and the Unit Clarification Petition, 117 U.Pa.L.Rev. 1075, 1091 (1969).

      . See also Remington Office Machines et al., 158 N.L.R.B. 994 (1966); Univac Division, Sperry Rand Corporation et al., 158 N.L.R.B. 997 (1966); Welsh Co. et al., 145 N.L.R.B. 713 (1964).


author: JOHN W. PECK, Circuit Judge.

text:
    John HEUSS, Plaintiff-Appellee, and The Travelers Insurance Company, Intervening Plaintiff, v. ROCKWELL STANDARD CORPORATION, a Delaware corporation, Defendant-Appellant.
    No. 73-1222.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 29, 1973.
    Decided April 26, 1974.

      Edmund M. Brady, Jr., Detroit, Mich., for defendant-appellant; Vandeveer, Gar-zia, Tonkin, Kerr & Heaphy, Detroit, Mich., on brief.
    Martin E. Stein, Ripple & Chambers, Detroit, Mich., for plaintiff-appellee; John F. Chambers, Detroit, Mich., on brief; William Smith, Lacey & Jones, Detroit, Mich., of counsel.
    Before CELEBREZZE and PECK, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   JOHN W. PECK, Circuit Judge.

Plaintiff-appellee instituted this action to recover damages for injuries suffered when he fell from a scaffold while performing a milling operation on forges at Rockwell Standard Corporation’s New Castle, Pennsylvania plant. Appellee was an employee of the Atlas Portable Equipment Company which Rockwell Standard had hired to perform milling operations on a number of forges. As the injury was sustained in the course of his employment, appellee received workmen’s compensation benefits from his employer’s compensation insurance carrier, Travelers Insurance Company, and Travelers thus acquired a lien on any verdict or recovery that ap-pellee might have against Rockwell Standard.

Appellee returned to his residence in Michigan and filed this suit in the district court on the basis of diversity. Trial before a jury on the negligence issues raised under the pleadings resulted in a $110,000 verdict for appellee. Rockwell Standard perfected this appeal from the final judgment entered on the jury’s verdict and from an order denying its motion for a new trial.

The evidence established that the scaffold from which appellee fell was supplied by appellant; it was constructed of tubular steel, and was five and one-half feet high, eight feet long, and six feet wide. The platform was made up of random length boards which extended beyond the frame, and, had neither guardrails nor clamps or cleats to prevent the boards from sliding or tipping. Although this point is disputed, it appears that appellee asked that appellant supply the scaffold and specified the general requirements, but did not supervise its construction. Appellee did concede that the scaffold seemed to be solid prior to his fall. He fell when one of the platform boards which was overhanging by approximately two and one-half feet teeter-tottered, causing him to lose his balance. There were no witnesses.

Mr. Beemsterbore was introduced by appellee and was found qualified, over appellant’s objection, as an expert witness on custom, practice and design in the scaffolding industry in 1967, when the accident occurred. He testified that ninety-five per cent of the industrial plants he knew of required scaffolding guardrails. Appellee also offered evidence on the medical disabilities that resulted and as to the consequent loss of earning power.

At the close - of appellant’s case defense counsel indicated to the Court his desire to offer evidence establishing the amount of Travelers’ lien, proposing thereby to show Travelers’ interest in the case. The Court, citing what it perceived to be Michigan law on the subject told defense counsel that he would not be permitted to introduce such evidence at that point in the trial. While the jury was deliberating, however, the trial judge’s law clerk-crier inadvertently delivered a number of exhibits to the jury in an envelope that disclosed by label that Travelers was a party plaintiff in the case. The foreman asked the law clerk what the caption meant and was informed that it was a mistake and a plain envelope was substituted. After the verdict had been returned the foreman told the trial judge that he had informed the jury that the first envelope was a mistake.

Appellant’s first assignment of error is based on the following Michigan statute:

“In the original action brought by the injured person, or his or her personal representative in case death results from the accident, . . . the insurer shall not be made or joined as a party defendant, nor shall any reference whatever be made to such insurer or to the question of carrying of such insurance during the course of trial.” Mich.Comp.L. § 500.3030.

The revelation of Travelers’ interest in the ease as a party plaintiff, asserts appellant, was a clear violation of the statute and the District Court should have granted its motion for a new trial to cure the resultant prejudice.

Whether or not it was error for the District Court’s law clerk to have inadvertently disclosed to the jury that an insurance company was involved in some manner in the case, we cannot agree that such action was prejudicial or that it mandates a new trial.

Michigan law provides two grounds for overturning a jury’s verdict because of the disclosure of an insurance company’s interest in a case. The first is the above-cited statute, which became effective in 1931, when the Michigan Supreme Court adopted it as a rule of trial practice. See Darr v. Buckley, 355 Mich. 392, 94 N.W.2d 837 (1959); Felice v. Weinman, 372 Mich. 278, 126 N.W.2d 107 (1964). The second is the judicial doctrine that irrelevant matters should not be introduced at trial; whether a party is insured has no bearing on whether he should recover or pay a damage award. See Hill v. Harbor Steel and Supply Corp., 374 Mich. 194, 132 N.W.2d 54 (1965); Leitelt Iron Works v. De Vries, 369 Mich. 47, 119 N.W.2d 101 (1962); Wright v. Delray Connecting R. R., 361 Mich. 619, 106 N. W.2d 247 (1960).

Under either line of cases, an accidental or inadvei’tent disclosure of an insurance company’s interest in a case does not require the retrial of the matter. Bunda v. Hardwick, 376 Mich. 640, 138 N.W.2d 305 (1965); Rumptz v. Leahey, 26 Mich.App. 438, 182 N.W.2d 614 (1970); Bishop v. Wolinski, 16 Mich.App. 753, 168 N.W.2d 651 (1969). The reason for this is that the Michigan statute and the common law rule both seek to prevent counsel from deliberately injecting prejudicial or irrelevant matters into the legal dispute. When a mention of an insurance company’s interest in a case has resulted from the uncontrolled response of a witness or other inadvertent causes, the Michigan courts have left it to the trial court to determine whether a new trial is nonetheless required. Savage v. Parts Warehouse Co., 19 Mich.App. 416, 173 N.W.2d 7 (1969); Watroba v. Detroit, 334 Mich. 182, 54 N.W.2d 212 (1952); Crenshaw v. Goza, 43 Mich.App. 437, 204 N.W.2d 302 (1972).

We cannot say that the District Court abused its discretion in this case. The revelation was not made by either party, but rather by an inadvertent mistake made by a member of the court’s staff; the parties were advised of the mistake at the time and failed to object or to request additional jury instructions ; it was the appellant that attempted unsuccessfully to bring the complicating information to the attention of the jury at an earlier stage of the trial; and the damage award is clearly within the proper range, based on the evidence of injury. Under the circumstances, a new trial is not required.

Appellant complains that the trial court erred in allowing Mr. Beemster-bore to testify as an expert witness on the customs in the scaffolding industry, and that it further erred in denying its motion for a directed verdict based upon appellee’s contributory negligence. The briefs filed in this Court raised a question as to whether Michigan law (the law of the forum), or Pennsylvania law (the law of the place where the injury occurred), should be applied in resolving these two issues. There is no occasion to consider this conflict of laws problem, however, because the law of the two involved states is virtually identical as it relates to the issues raised.

The determination of the qualifications of an expert witness is left to the trial court, and must be sustained unless manifestly erroneous. Abbott v. Onopiuk, 437 Pa. 412, 263 A.2d 881 (1970); Smith v. Children’s Hospital of Michigan, 33 Mich.App. 186, 189 N.W.2d 753 (1971). In this case, following an extended colloquy concerning Mr. Beemsterbore’s qualifications, the trial judge determined that he was an expert. We find no abuse of discretion. Whether appellee in the instant case was guilty of contributory negligence was, as the Court properly charged, for the jury to determine. The jury having made that determination, “[i]t may not be said that the record does not support the finding made thereon.” Wright v. Delray Connecting R. R. Co., supra, 361 Mich, at 628, 106 N.W.2d at 251; accord, Quinn v. Funk Bldg. Corp., 437 Pa. 268, 263 A.2d 458 (1970).

The judgment of the District Court is affirmed.


author: JAMESON, Senior District Judge.

text:
    The BUEHLER CORPORATION, Plaintiff-Appellant, v. The HOME INSURANCE COMPANY et al., Defendants-Appellees.
    No. 73-1556.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 26, 1974.
    Decided April 30, 1974.
    Richard D. Wagner, Indianapolis, Ind., for plaintiff-appellant.
    Mark W. Gray, John T. Lorenz, Indianapolis, Ind., for defendants-appellees.
    Before FAIRCHILD and CUMMINGS, Circuit Judges, and JAMESON, Senior District Judge.

       Senior District Judge William J. Jameson of the District of Montana is sitting by designation.

   JAMESON, Senior District Judge.

Appellant, The Buehler Corporation, brought this action ¡to recover for the loss by fire of a building owned by it and covered by three' insurance policies issued by appellees, The Home Insurance Company, Glens Falls Insurance Company, and Great American Insurance Company. Most of the facts were stipulated. Following a non-jury trial the court entered judgment for the ap-pellee insurers.

Each policy, issued May 31, 1968 for a three-year term, insured appellant’s “Building No. 2”, “Building No,. 3”, and machinery and equipment stored in Building No. 3 for fire, extended coverage, vandalism and malicious mischief. The machinery and equipment stored in Building No. 3 were also insured against loss from sprinkler leakage. Premiums were paid annually in a lump sum in advance of each year’s coverage.

Building No. 3, insured for a total of $150,000, was destroyed by fire on October 5, 1970. Each policy provided that its “Automatic Sprinkler Clause * * * applies to Building No. 3 from May 1 to October 31 each year”. This clause reads:

“This policy being written at a rate based on the protection of the premises by the sprinkler system, it is a condition of this policy that, insofar as the sprinkler system and water supply therefor are under the control of the Insured, due diligence shall be used by the Insured to maintain them in complete working order, and that no change shall be made in the said system or in the water supply therefor unless immediate notification is given to the Rating Bureau. Permission, however, is hereby given in case of break, leakage, or the opening of sprinkler heads, to shut off the water from so much of the sprinkler system as may be imperatively necessary, it being a condition of this policy that the Rating Bureau will be immediately notified and the protection restored as promptly as possible.”

The district court found that it was “clear that plaintiff violated this condition of the policies. Because of a broken valve which was not promptly repaired, the sprinkler system in Building No. 3 was completely inoperative at the time of the fire on October 5, 1970”; and “had been inoperative since approximately the middle of June 1970. Plaintiff never advised the Rating Bureau that the sprinkler system in Building

No. 3 was not in working or tier, as required by the policies.”

During the course of their investigation of the fire loss appellees, on November 9, 1970, discovered that the sprinkler system was inoperative at the time of the fire. By letter dated January 28, 1971 appellees denied liability on the ground that appellant had violated “the condition of the policy, requiring that the automatic sprinkler system be maintained in working order by due diligence on your part”. Appellees did not tender or return to appellant any of the premium paid for the policies; nor did appellant at any time seek return of any portion of the premium.

Appellant does not challenge the district court’s finding that it violated a condition of the policy. Rather it contends, as it did in the district court, that under Indiana law appellees “are precluded from avoiding liability because they retained all paid premium after they acquired knowledge of [appellant’s] violation of the policy condition”.

Appellant relies heavily on Farmers Conservative Mut. Ins. Co. v. Neddo, 111 Ind.App. 1, 40 N.E.2d 401, 405 (1942), where the court held that “The rule is firmly established that an insurer is precluded from' asserting a forfeiture, where, after acquiring knowledge of the facts constituting a breach of a condition, it has retained the unearned portion of the premium or has failed to return or tender it back with reasonable promptness.” Neddo recognizes that “there may be some confusion” in prior decisions; but it is clear from Neddo and cases there cited that under Indiana law a retention of premiums, following violation by the insured of a condition which renders the entire policy voidable, constitutes waiver by the insurer of his right to avoid liability, even though knowledge of the violation is first obtained after the loss.

The district court did “not question the validity of Neddo”, but distinguished it on the ground that the condition subsequent violated in that case rendered the entire policy voidable, whereas here the policy is divisible and the breach of the sprinkler condition affected only the insurance coverage with respect to Building No. 3. Moreover, even this coverage was not entirely voidable, since each policy provided that the sprinkler condition was applicable to Building No. 3 only during the period “from May 1 to October 31 each year”.

We agree with appellant that “No Indiana precedent specifically discusses the effect of the divisibility of an insurance policy upon the application of the doctrine of waiver to the facts of this case.” In fact, the parties have not cited, nor have we found, any case which expressly considers the effect of the divisibility of an insurance policy on an asserted waiver of a breach of a condition subsequent by failure of the insurer to tender or return premiums. Where no controlling state precedent can be found' appellate courts give great weight to the view of the state law taken by a district judge experienced in the law of that state, although the parties are entitled to a review of the trial court’s determination of state law just as they are of any other legal question in a case. We conclude that the district court has drawn a valid distinction between Neddo and the facts in this case.

The insurance company in Neddo argued that “it should not be required to return or tender the return of unearned premium” since “it did not forfeit the entire policy because of breach of conditions, but * * * forfeited the policy only insofar as it covered the property that was destroyed, and * * * maintained the policy in force upon all other property described therein”. 40 N.E.2d at 406. In considering this contention the court did not hold that divisible policies are also subject to the requirement that premiums be returned, but found rather that under the facts in that case the policy was not divisible, and concluded that “the insurer could not properly set up the divisibility thereof as a reason for not returning, or offering to return, the unearned premiums upon destroyed property.” Id. at 407.

In both Neddo and Robinson, supra n. 5, the policies provided that they “shall be void” if the insured buildings were vacant for ten days. In construing this provision the Supreme Court of Indiana in Robinson said in part:

“It is settled that a provision in an insurance policy that it shall subsequently become void upon the happening of a certain event, such as the premises becoming vacant, is to be construed as making the policy voidable only upon the happening of the event, at the option of the insurer, and if the insurer desires to exercise the option and rescind the contract, it is required to act promptly, inform the insured of its election, and return, or offer to return, all unearned premiums ; and a failure in this respect will be deemed a waiver, and the insurer will be deemed to have elected to waive the right to cancel. An insurer may not retain unearned premiums and at the same time disclaim liability during the period covered by the premiums.” 10 N.E.2d at 605.

None of the policies in this case contain a provision that the policy “shall be void” upon a violation of a policy condition or the happening of a certain event. Other risks remained insured after the fire loss in Building No. 3. The defendants did not declare the policies void or exercise any option to rescind the contract. They simply exercised their right to deny liability by reason of a breach of a policy condition requiring appellant to keep the sprinkler system in working order during a specified period — May 1 to October 31.

The holdings in Robinson and Neddo are consistent with the district court’s conclusion that the appellee insurers were not precluded from avoiding liability because they did not return any of the premium, and that the rule that a failure to return unearned premiums constitutes a “waiver of the right to cancel” the policy is not applicable where, as here, there is no provision making the policy void “upon the happening of a certain event”, there is an express provision making the insurance coverage divisible, and a breach of a condition subsequent does not affect the validity of the insurance on other items of property and risks covered under the same policy.

Affirmed.

      . The insurance on this building was divided among appellees as follows: The Home Insurance Company, $37,500; Glens Falls Insurance Company, $37,500; and Great American Insurance Company, $75,000.

      . The stipulated facts recite that the inoperative condition was due to appellant’s removal from the sprinkler system of a defective main riser valve. The valve was “repaired and brazed” within a few days and “conveyed to an area of Buehler’s main plant where it could be machined. * * * For reasons unknown, the machining operation was never effected.” The “valve normally could have been repaired within approximately one week.”

      . The letter continued :
      “The investigation indicates that this system had been out of order and inoperative for more than five months prior to the fire, and that it was not promptly restored at the time its damaged condition was discovered, and likewise, no notification was given as required by the policy.”

      . See also Lititz Mutual Insurance Co. v. Lengacher, 248 F.2d 850, 854 (7 Cir. 1957) where this court recognized that: “It is also the rule in Indiana that where an insurance company denies liability on the ground that provisions of its policy have been violated by the assured, it must within a reasonable time after the discovery of such policy violations, return or offer to return the premium.”

      . See e. g., Insurance Co. of Pennsylvania v. Indiana Reduction Co., 65 Ind.App. 330, 117 N.E. 273 (1917); Brashears v. Perry County Farmers’ Protective Ins. Co., 51 Ind.App. 8, 98 N.E. 889 (1912); Aetna Ins. Co. of Hartford, Conn. v. Robinson, 213 Ind. 44, 10 N.E.2d 601 (1937).

      . The Indiana rule is contrary to the weight of authority. See 43 Am.Jur.2d Insurance § 1127, which states that “The general rule is that a return of the premium is not essential to the avoidance of a policy, nor is its retention a waiver, especially * * * where knowledge of the ground of avoidance is first obtained after a loss”, and cases cited at n. 11, and Peterson v. Universal Automobile Ins. Co., 53 Idaho 11, 20 P.2d 1016, 1020-1021 (1933) and cases there cited. The early Indiana case of Ohio Farmers’ Ins. Co. v. Williams, 63 Ind.App. 435, 112 N.E. 556 (1916) appears to follow the general rule. While not expressly overruled in subsequent cases, the rule followed in Neddo and other cases is clearly contrary to the holding in Williams.

      . In Neddo the insurance policy provided that:
      “This entire policy, unless otherwise provided by agreement endorsed thereon or added hereto shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.” 40 N.E.2d at 405.
      After the fire the insurance company learned that the property had been vacant or unoccupied for more than ten days when it was destroyed by fire. The company refused to pay the loss and did not return or offer to return the unearned portion of the premium. The insurer was held liable.

      . Appellant correctly points out that the “Divisible Contract Clause” quoted by the district court as evidencing the policies’ divisibility is applicable only to the “Sprinkler Leakage Endorsement” included in the policies. However, the policies’ “Building and Contents Form” contains a substantially similar clause of general application, which provides :

        “Breach of Warranty Clouse¿ If this policy covers two or more buildings or the contents of two or more buildings, the breach of any condition or warranty of the policy in any one or more of the buildings insured or containing the property insured shall not prejudice the right to recover for loss occurring in any building insured or containing the property insured, where at the time of loss a breach of condition or warranty does not exist.”
      Appellant concedes that under this clause “the insurance policies * * * are divisible to the extent that they were not entirely voidable and that coverage continued as to property other than Building No. 3 after the violation of the sprinkler system condition.”

      . As noted supra, the fire which destroyed Building No. 3 occurred on October 5, 1970. As appellees pointed out during oral argument, if the fire had occurred 27 days later, on November 1, appellant’s breach of the sprinkler condition would not have been a ground upon which appellees could have asserted non-liability for the fire loss.

      . Most of the Indiana decisions relied upon by appellees simply restate the holding in Williams, supra. Aetna Life Ins. Co. v. Doerr, 74 Ind.App. 35, 115 N.E. 700 (1917) and Red Men’s Fraternal Accident Ass’n of America v. Rippey, 181 Ind. 454, 103 N.E. 345 (1913) deal with attempts to recover for losses expressly not covered under life insurance policies (death by suicide and tuberculosis within one year of issuance of policies).

      . See e. g., C. H. Leavell & Co. v. Board of Com’rs of Port of New Orleans, 424 F.2d 764, 766 (5 Cir. 1970); Bernhardt v. Polygraphic Co., 350 U.S. 198, 204, 76 S.Ct. 273, 100 L.Ed. 199 (1956); and Wright, Federal Courts § 58 (2d Ed. 1970).

      . Appellant relies on the Missouri case of Miller v. Insurance Co. of North America, 106 Mo.App. 205, 80 S.W. 330 (190»), an action on a policy covering a dwelling, stable and furniture, with a lump sum premium. In reversing a judgment for the insured, the court held that the doctrine of waiver for failure to return the unearned premium was inapplicable for two reasons. One reason was the fact that “There was no forfeiture of the insurance on the dwelling and stable, and it is nowhere shown what portion of premium paid was for the insurance on the furniture.” Id. at 332.

      . In Brashears, supra n. 4, violation of an identical provision “suspend [ed] the action of the policy”. In Insurance Company of Pennsylvania v. Indiana Reduction Co., supra n. 4, there was a provision that “This entire policy * * * shall be void” if gasoline “be kept, used, or allowed” on the insured premises. 117 N.E. at 274.

      . Nor was there any demand for a return’ of any portion of the premium paid.