author: GIBBONS, Circuit Judge.

text:
    LOCAL 336, AMERICAN FEDERATION OF MUSICIANS, AFL-CIO, and Diane Martin, Appellants, v. Augustus BONATZ, t/a Aiebon Inn, Appellee.
    No. 72-1057.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 9, 1973.
    Decided March 9, 1973.

      Bernard N. Katz, Warren J. Borish, Meranze, Katz, Spear & Bielitsky, Philadelphia, Pa., Philip G. Steel, Steel & Steel, Camden, N. J., for appellants.
    Jack W. Tapper, Dimon, Haines & Bunting, Mt. Holly, N. J., for appellee.
    Before McLAUGHLIN, and GIBBONS, Circuit Judges, and WEIS, District Judge.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal by the plaintiffs, Local 336, American Federation of Musicians, AFL-CIO, (the local union) and Diane Martin (the leader) from an order dismissing their complaint in the district court for want of jurisdiction. The defendant Augustus Bonatz t/a Aiebon Inn, (the employer) is the proprietor of a cocktail lounge in Florence, New Jersey where occasionally he provides musical entertainment for his customers. The local union is an unincorporated association functioning as a labor union of musicians, with its principal office in Burlington, New Jersey. The leader is a member of the local union who resides in Willingboro, New Jersey. In the complaint the local union and the leader assert federal jurisdiction solely by virtue of Section 301 of the Labor-Management Relations Act of 1947. 29 U.S.C. § 185. They allege that on December 15, 1967, they and the employer entered into a labor contract, a copy of which is attached to the complaint as Exhibit A, pursuant to which the employer engaged the musical services of the leader and two other undesignated members of the local union for two evenings a week for thirteen weeks beginning January 5, 1968; that the labor contract contained a clause providing for binding arbitration of disputes before the International Executive Board of the American Federation of Musicians; that a dispute arose and was submitted to arbitration by the local union and the leader; and that an award was made by the arbitrators in favor of the local union and the leader, to which award the employer refuses to abide. They seek a judgment enforcing the award, with interest and counsel fees. The employer filed an answer which admits the jurisdictional allegation, admits the execution of “a labor contract . . Exhibit A” and asserts four separate defenses:

“FIRST DEFENSE
The complaint fails to state a claim against defendant upon which relief can be granted.
SECOND DEFENSE
Plaintiff breached the contract and thereby waived any rights under the contract which she may have had.
THIRD DEFENSE
Defendant is riot bound by the arbitration agreement of the American Federation of Musicians in that there was no appearance by defendant.
FOURTH DEFENSE
The arbitration agreement is void as being against public policy in that there is a clear conflict-of-interest in having the defendant judged by that organization of which the plaintiff is a member.” (footnote added).

It is clear that the pleadings do not traverse federal jurisdiction. The plaintiffs moved, pursuant to rule 56, Fed.R.Civ.P., for summary judgment. In support of this motion they established by affidavit the execution of Exhibit A, the existence of a dispute, the submission of that dispute to the designated arbitrators, notice to the employer that the arbitration panel would proceed, the default by the employer after such notice and opportunity to participate, the impartiality of the arbitration panel and the award. No answering affidavits were filed.

When the motion for summary judgment came on for argument the district court, sua sponte, raised the issue of the court’s jurisdiction under § 301, After a brief colloquy, the court ruled that Exhibit A was a simple contract between an employer and an employee, that no labor organization was a party to the agreement, and that the federal court lacked jurisdiction to enforce the arbitration award resulting from such a contract. No opportunity was afforded the local union or the leader to establish any further jurisdictional facts.

We reverse.

The federal district courts have jurisdiction under Section 301 of the Labor-Management Relations Act of 1947 not only to compel contract arbitration of labor contracts but also to enforce arbitration awards made pursuant to such contracts. 9 U.S.C. § 9; General Drivers Local 89 v. Riss & Co., 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963) (per curiam); Philadelphia Marine Trade Association v. Longshoremen’s Local 1291, 365 F.2d 295 (3rd Cir. 1966). Thus, dismissal sua sponte pursuant to rule 12(b), Fed.R.Civ.P., may be sustained here only if no facts which the local union and the leader might prove would bring Exhibit A within the coverage of § 301 as an agreement between a labor organization and an employer.

Exhibit A is the standard so-called Form B contract used by locals of the American Federation of Musicians, AFL-CIO, for many years throughout the country for musical engagements of a transitory nature. It covers employment in what the musicians refer to as the club date field, as distinguished from employment by the few regular and long term purchasers of music such as symphonic orchestras, network broadcasters, opera societies and theatres. The appellants contend that had they been given the opportunity, in support of the pleaded jurisdictional allegation they would have been able to establish:

(1) The greatest number of musical engagements are in the club date field, and that orchestra leaders, sub-leaders and sidemen perform in that field and elsewhere interchangeably wherever work is available.
(2) Musician union members agree not to accept employment except pursuant to a contract in a form issued by the American Federation of Musicians, and that Exhibit A is one such form contract.
(3) There is no arrangement in the club date field, which includes thousands of occasional employers of musicians, for prehire contracts (Cf. 29 U.S.C. § 158(f), applicable to the construction industry), but a separate contract is entered into for each engagement.
(4) An orchestra leader negotiating with a club date employer for a musical engagement has authority to act on behalf of the local union of which he is a member and on behalf of the sidemen who will participate in the engagement with him in the making of a Form B contract, and the leader in this case was so authorized.

The nature of the music industry and the operation of the Form B contract are set forth in considerable detail in American Federation of Musicians v. Carroll, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460 (1968). That case holds that the Federation’s enforcement of the requirement that its member-leaders use the Form B contract for club dates fell within the protection of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-15, and outside the reach of the Sherman Act, 15 U.S.C. §§ 1-7. Since the exemption in the Norris-LaGuardia Act for allowable union activity probably is broader than the district court jurisdiction conferred in § 301, Carroll is not dispositive of the ultimate issue whether a Form B agreement is covered by that section. But Carroll clearly belies the assumption of the district court that Form B (Exhibit A) is a mere employment contract in which the local union has no interest. If the local union establishes the facts which it has represented (which, the briefs suggest, probably will not be seriously disputed) a § 301 jurisdictional finding seems highly likely.

For example, the local union proposes to establish that its leader-member had actual and apparent authority to bind it when she executed a Form B contract with the employer. Her authority to so act is determined, under the Labor-Management Relations Act, by ordinary agency principles. 29 U.S.C. § 185(b), (e). See e. g., Barefoot v. International Brotherhood of Teamsters, 424 F.2d 1001, 1004 (10th Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 257 (1970); Teamsters Local 524 v. Billington, 402 F.2d 510, 513 (9th Cir. 1968). The local union, then, would be a labor organization suing for violation of its contract with the employer. See 29 U.S.C. § 185(a).

The local union’s agency position is consistent with the text of Exhibit A. The Exhibit captioned:

“CONTRACT BLANK
AMERICAN FEDERATION OF MUSICIANS OF THE UNITED STATES AND CANADA (HEREIN CALLED ‘FEDERATION’) BURLINGTON MUSICAL SOCIETY LOCAL NO. 336, A. F. of M. BURLINGTON, NEW JERSEY”

The employer makes several direct undertakings with the union. The contract is signed by the leader, but with the local number of the local union inserted immediately following her name.

Moreover, the labor organization and the leader urge that the latter signed the Form B contract in a representational capacity on behalf of the sidemen as well as on behalf of the local. A § 301 contract must be between an employer and a labor organization representing employees. Labor organizations are broadly defined elsewhere in the Labor-Management Relations Act:

“The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan . . . which exists for the purpose ... of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” 29 U.S.C. § 152(5) (emphasis added.)

Even accepting the proposition that the leader did not, when signing Form B, have authority to bind the local union to a labor contract with the employer, as appears on its face, she purported to act on behalf of two other union members, the sidemen, with respect to many of the subjects listed in 29 U.S.C. § 152(5). If an issue is actually framed by the pleadings and tried as to the existence of a § 301 contract, in this case the leader may well qualify as an agency, representation committee, or plan, and hence as a labor organization.

The jurisdictional issue having been raised at this juncture we cannot say that as a matter of law Exhibit A is a § 301 contract. We hold only that it was error for the district court to decide that issue with this record on a sua sponte rule 12(b)(1) motion. We recognize that the district courts have more latitude as to modes of proof in the disposition of issues of jurisdictional fact. E. g., Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320 (3d Cir. 1972); Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971). But we have never departed from the rule that even on such an issue the record must clearly establish that after jurisdiction was challenged the plaintiff had an opportunity to present facts by affidavit or by deposition, or in an evidentiary hearing, in support of his jurisdictional contention. E. g., Groh v. Brooks, 421 F.2d 589, 594 (3d Cir. 1970); Shahmoon Industries, Inc. v. Imperato, 338 F.2d 449 (3d Cir. 1964). The existence of an agreement between a labor organization and an employer is, for § 301 purposes, a jurisdictional fact. For the determination of that fact, no doubt, those more liberal modes of proof apply which the Supreme Court has approved for jurisdictional determinations. Whether the court proceeds by considering affidavits or depositions, or by an evidentiary hearing, however, something must appear of record to contradict the pleaded and uncontroverted jurisdictional allegation that there was a § 301 contract and to support the district court’s determination.

The judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion.

      . On appeal the employer claims this defense traversed federal jurisdiction. Obviously it did not, since a dismissal on this ground would be on the merits. Obviously, also, it was not so intended, since the jurisdictional allegations were admitting in the same pleading.

      . “Representatives of the Federation local in whose jurisdiction the musicians shall perform hereunder shall have access to the place of performance (except to private residences) for the purpose of conferring with the musicians.
      No performance on the engagement shall be recorded, reproduced or transmitted from the place of performance, in any manner or by any means whatsoever, in the absence of specific written agreement with the Federation relating to and permitting such recording, reproduction or transmission.
      The Employer represents that there does not exist against him, in favor of any member of the Federation, any claim of any kind arising out of musical services rendered for such Employer. No musician will be required to perform any provisions of this contract or to render any services for said Employer as long as any such claim is unsatisfied or unpaid, in whole or in part. .
      Rules and Regulations of the Federation and of any local thereof applicable to this engagement (not in conflict with those of the Federation) will be adhered to and the parties acknowledge that they are and each has the obligation to be fully acquainted therewith.”

      . See Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183 (1936); MeNutt v. General Motors Acceptance Corp., 298 U.S. 178, 184-190, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Wetmore v. Rymer, 169 U.S. 115, 120, 18 S.Ct. 293, 42 L.Ed. 682 (1898).


source: Caselaw Access Project

author: OAKES, Circuit Judge: LUMBARD, Circuit Judge

license: Public Domain

text:
    Elaine ROSENTHAL, as executrix of the estate of Martin C. Rosenthal, Deceased, Plaintiff-Appellee, v. Kenneth W. WARREN, and New England Baptist Hospital, Defendants-Appellants.
    No. 128, Docket 72-1658.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 31, 1972.
    Decided Feb. 13, 1973.

      Solomon M. Cheser, New York City, for defendant-appellant Warren.
    Douglas A. Boeckmann, New York City, for defendant-appellant New England Baptist Hospital.
    Melvin I, Friedman, New York City (Kreindler & Kreindler, Gerald A. Robbie and Alan J. Konigsberg, New York City, of counsel), for plaintiff-appellee.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This appeal in a diversity case raises the. question whether New York would apply a Massachusetts damage limitation to the death of a New York domiciliary occurring in Massachusetts. The appeal, taken before final judgment pursuant to 28 U.S.C. § 1.292(b), is from an order of the district court granting partial summary judgment in favor of the plaintiff in an action for wrongful death, 342 F. Supp. 246. The partial summary judgment struck the affirmative defense based upon the Massachusetts wrongful death statute limiting recoverable damages to “ . . . not less than five thousand nor more than fifty thousand dollars, to be assessed with reference to the degree of [the tortfeasor’s] culpability . . . . ” The district court held that New York law was applicable. That law places no fixed value on wrongful death or limitation upon the damages in a wrongful death action. N.Y.Estates, Powers & Trust Law, McKinney’s Consol.Laws, c. 17-b, § 5-4.3; N.Y.Const. art. 1, sec. 16. We affirm.

The relevant facts are simple, the legal issue difficult. The decedent, Dr. Martin C. Rosenthal, was a citizen of New York. Decedent and his wife, who as executrix is plaintiff here, went to Boston where he was examined and diagnosed by Dr. Warren, whom the plaintiff describes as a world-renowned physician and surgeon treating patients from all over the world. On March 27, 1969, eight days after an operation performed by Dr. Warren at the New England Baptist Hospital, decedent died in the hospital while under the care of the defendant Warren.

Suit, alleging malpractice and asking for $1,250,000 in damages, was brought in New York state court. Jurisdiction of Dr. Warren to the extent of his insurance coverage was obtained by attachment levied on the St. Paul Fire & Marine Insurance Company, a Minnesota corporation doing business in New York, the malpractice insurer of a clinic where Dr. Warren is employed. Jurisdiction of New England Baptist Hospital, of which Dr. Warren is surgeon in chief, a trustee, a member of the planning committee and an officer of the corporation, was obtained by service upon another officer of the hospital while soliciting funds in New York City. Defendants removed the suit to the federal district court on the basis of diversity of citizenship.

It is undisputed that although the hospital is a Massachusetts corporation, approximately one-third of its patients in 1969 came from outside Massachusetts and approximately 8 per cent of its patients in the same year were from New York. Indeed, the hospital claimed in its 1969 annual report that it was “not a local or community hospital in the usual sense because its patients come from literally everywhere.” An affidavit of the head of the casualty underwriting department of the Boston office of St. Paul Fire & Marine, which issued the liability policy under which defendant Warren was covered, indicates that a general surgeon’s liability policy in Massachusetts has a basic limit premium of $192, while a New York City surgeon pays a basic limit premium of $1,139, and that one factor contributing to the difference is the “dollar exposure” in New York, which has no wrongful death limitation. Dr. Warren’s policy, however, makes no reference to coverage limitation in wrongful death cases.

This being a diversity case, it is, of course, elemental that we must look to the choice of law rules of the forum state, that is, to New York law. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Patch v. Stanley Works, 448 F.2d 483, 487 (2d Cir. 1971). Formerly New York probably would have applied the law of Massachusetts under the simplistic rule of lex loci delicti. Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412 (1945); Whitford v. Panama Railroad Co., 23 N.Y. 465 (1861). But cf. Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 194 N.E. 692, Id., 242 App.Div. 625, 271 N.Y.S. 1107 (1935) (New Jersey death limitation inapplicable to a New Jersey plane crash because the validity of a ticket stipulation for limiting the airline’s damages is to be determined by New York law, where the ticket was purchased).

In Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961), however, the New York Court of Appeals characterized the Massachusetts wrongful death limitation as “procedural” and refused to apply it in a suit brought in New York by a New York decedent’s estate arising from the crash of an airplane flight originating in New York but fatally ending at Nantucket, Massachusetts. The court said that “[m]odern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move,” and pointed out that there were only 14 states limiting death case damages as of that time. 9 N.Y.2d at 39, 211 N.Y.S.2d at 135, 172 N.E.2d at 527. The court also characterized wrongful death recovery limitations as “absurb and unjust” and emphasized the strong New York policy against such limitations, at least as to its domieiliaries, enshrined in a constitutional prohibition against them. Said the court, “The absurdity and injustice have become increasingly apparent in the six decades that have followed [the adoption of the New York constitutional prohibition], For our courts to be limited by [the Massachusetts] damage ceiling (at least as to our own domiciliaries) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law . . . . ” 9 N.Y.2d at 40, 211 N.Y.S.2d at 136, 172 N.E.2d at 528.

Kilberg foreshadowed New York’s total break with the wooden rule that the law of the place of the tort inevitably governed. The break became complete in the landmark Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E. 2d 279 (1963), where the Court of Appeals chose to apply New York law even though a statute of the place of the tort foreclosed rather than merely limited liability. Babcock refused to apply an Ontario statute barring recovery by an automobile guest in the case of an automobile accident in Ontario in which the driver and passenger were New Yorkers. The opinion laid the foundation for an “interest analysis” approach to choice of law problems, looking to “the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.” 12 N.Y.2d at 481, 240 N.Y.S.2d at 749, 191 N.E.2d at 283. Carefully distinguishing what the court then considered was Ontario’s legislative concern over guest-driver collusion against insurers from its interest in regulating the manner in which a driver operates his car, 12 N.Y.2d at 482-483, 240 N.Y.S.2d 750, 751, 191 N.E.2d at 284, and examining the relative importance of the relationships and contacts of the respective jurisdictions in light of “ ‘the relevant purposes of the tort rules involved,’ ” 12 N.Y.2d at 482, 240 N.Y.S.2d at 750, 191 N.E.2d at 284, the Babcock court concluded that application of the inflexible rule of lex loci delicti could lead to “unjust and anomalous results.” 12 N.Y.2d at 484, 240 N.Y.S.2d at 751, 191 N.E.2d at 285.

Analysis of the respective interests underlying the choice of law applicable in tort cases was soon explicitly extended to actions for wrongful death. See Long v. Pan American World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513, 213 N.E.2d 796 (1965) (applying Pennsylvania law to an air crash where decedents were Pennsylvania residents but wreckage landed in Maryland). In Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877 (1968), the New York Court of Appeals faced the question whether to apply a Maine $20,000 limit on wrongful death recovery in the case of a New York resident killed in Maine while a passenger in an automobile driven by a Maine resident. Again the court emphasized the strong New York policy against wrongful death limitations and saw “no substantial countervailing considerations” which would warrant the rejection of New York law, pointing out that the Maine statute did not “regulate conduct” and that “the only justifiable reliance which could be present here would involve the purchase of liability insurance in light of the remedies available to an injured person.” 22 N.Y.2d at 19, 290 N.Y.S.2d at 740, 237 N.E.2d at 881. But the court pointed out that standard automobile liability policies issued in Maine drew no distinction between liability coverage for wrongful death and personal injuries, 22 N.Y.2d at 20, 290 N.Y.S.2d at 740, 237 N.E.2d at 881, so that it could not have been purchased in reliance on the Maine wrongful death limitation.

Similarly, in Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969), the New York Court of Appeals refused to apply a Michigan guest statute in the case of an automobile accident which occurred on an intra-Michigan trip taken by two New York coeds at Michigan State, one the driver and the other the decedent passenger. Relying upon Miller v. Miller, supra, the court “rejected unequivocally” “[t]he argument that the choice of law in tort cases should be governed by the fictional expectation of the parties.” 24 N.Y.2d at 577, 301 N.Y.S.2d at 526, 249 N.E.2d at 399. Tooker not merely questioned, it for all practical purposes overruled, Dym v. Gordon, 16 N.Y.2d 120, 125, 262 N.Y.S.2d 463, 467, 209 N.E.2d 792, 794 (1965), insofar as Dym (purporting to rely on Babcock) had held that the law of the state with the “most significant relationship to the parties” was to govern. Tooker rather looked to the law of the state with the “superior interest” in having its policy or law applied. See 24 N.Y.2d at 574, 301 N.Y.S.2d at 523, 194 N.E.2d at 397. Tooker also criticized Macey v. Rozbicki, 18 N.Y.2d 289, 274 N.Y.S.2d 591, 221 N.E.2d 380 (1966), which, relying on other language of Babcock, had seemingly adopted a “contact counting” rather than an “interest analysis” approach to choice of law problems. 24 N.Y.2d at 575, 301 N.Y.S.2d at 524, 194 N.E.2d at 398.

The most recent conflict of laws tort case to reach the New York Court of Appeals, Neumeier v. Keuhner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454, (1972), did hold the Ontario guest law applicable in a suit by an Ontario decedent’s executrix against a New York driver’s estate arising from an accident in Ontario, the court saying that New York has “no legitimate interest in ignoring the public policy of [the] foreign jurisdiction . . . and in protecting the plaintiff guest domiciled and injured there from legislation obviously addressed, at the very least, to a resident riding in a vehicle traveling within its borders.” 31 N.Y.2d at 125-126, 335 N.Y.S.2d at 68, 286 N.E.2d at 456. In no .way, however, did the court retreat from fthe position it had staked out in Kilberg and Miller, refusing to apply other states’ wrongful death limitations in the case of the death of a New York domiciliary.

Seeking to divine New York conflicts law, the federal courts of New York have not always been totally consistent in refusing to apply damage limitations of other states against New York decedents. Two federal cases which did refuse to do so arose out of the same Nantucket crash involved in Kilberg. Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir. 1962) (en banc), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963), held that the Kilberg rule was “a proper exercise of [New York’s] power to develop conflict of laws doctrine” and not contrary to the full faith and credit clause, U.S.Const. art. IV, § 1, or the due process clause.

Gore v. Northeast Airlines, Inc., 373 F.2d 717 (2d Cir. 1967), followed the Kilberg holding even though the widow and infant children survivors of a New York decedent moved to Maryland a month after the accident and the decedent’s adult children lived at all times in California.

In Ciprari v. Servicos Aereos Cruzeiro, 245 F.Supp. 819 (S.D.N.Y.1965), aff’d per curiam, 359 F.2d 855 (2d Cir. 1966), however, a Brazilian limitation of damages for personal injuries was held to control in the case of a New York domiciliary who bought his ticket in Brazil for an intra-Brazilian trip in a Brazilian airliner. Both the district court, 245 F.Supp. at 824-825, and the court of appeals, which affirmed on the district court’s opinion, see also 359 F.2d at 856 (Waterman, J., concurring), relied heavily on Dym v. Gordon, supra, since questioned and in substance overruled in Tooker v. Lopez, supra, and held Brazil to be the jurisdiction most significantly concerned with the law suit.

This review of the relevant case law leaves us with the overwhelming eonclusion that, except for a federal case which relied heavily on a discredited state case, the strong New York public policy against damage limitations has triumphed over the contrary policies of sister states in every case where a New York domiciliary has brought suit. This conclusion is particularly striking in wrongful death actions where the New York policy, embedded in a state constitutional prohibition against damage limitations, has without exception been applied in suits brought for New York decedents since Kilberg. One might well inquire whether it would be anomalous to permit Dr. Rosenthal’s heirs to recover without damage limitation if he died in a plane crash en route to Boston’s Logan International Airport (Kilberg) or in a taxicab from Logan to New England Baptist (Miller) but not once he stepped into the hospital itself. But to do so would substitute “a domiciliary conceptualism that rested on a vested right accruing from the fact of domicile,” Miller v. Miller, supra, 22 N.Y.2d at 29, 290 N.Y.S.2d at 748, 237 N.E.2d at 887 (dissenting opinion), for New York’s sophisticated “interest analysis” approach to choice of law problems. The New York precedents require more.

Appellants contend that Massachusetts is the situs of the events leading to this law suit and, in effect, that the intent, either actual or constructive, of the parties was for the Massachusetts limitation on damages to govern in the event of a malpractice claim. This argument fails for many reasons. Quite probably it never occurred to Dr. Rosenthal, Dr. Warren or to the New England Baptist Hospital that a choice of law problem would arise; at least one does not ordinarily think of wrongful death limitations even when undertaking surgery. This is not a case where the conduct of the Massachusetts doctor or hospital vis a vis the decedent was patterned upon the Massachusetts death limitation. It is therefore not unfair to apply New York’s compensatory policy to them. Cf. Babcock v. Jackson, supra, 12 N.Y.2d at 483, 240 N.Y.S.2d at 750-751, 191 N.E.2d at 284. Additionally, it cannot be said that the defendants purchased insurance with the expectation Massachusetts law would govern damage recovery in this case. As in Miller v. Miller, supra, the specific insurance policy here does not distinguish between liability coverage for wrongful death and personal injuries, nor does it distinguish between medical practice on Massachusetts and out of state citizens. Finally, neither the hospital not the doctor named here as defendants operate provincially; the doctor has a world-wide following and the hospital actively solicits funds from outside the Commonwealth of Massachusetts (including New York) and treats patients from “literally everywhere.” It is thus impossible to say with any certainty what the parties’ actual “expectations” as to choice of law were.

Even if expectations, real or constructive, could be hypothesized, they would be legally irrelevant. Despite the argument that looking to the expectations of the parties to solve choice of law problems promotes “ ‘an unconscious acceptance of legality and [the] legal order,’ ” Miller v. Miller, supra, 22 N.Y.2d at 28, 290 N.Y.S.2d at 747, 237 N.E.2d at 886 (dissenting opinion), this contractual type of approach to multistate tort problems has been “summarily rejected” by the New York Court of Appeals. Tooker v. Lopez, supra, 24 N.Y.2d at 577, 301 N.Y.S.2d at 526, 249 N.E.2d at 399; Miller v. Miller, supra, 22 N.Y.2d at 20, 290 N.Y.S.2d at 741, 237 N.E.2d at 881; see also D. Cavers, The Choice of Law Process 119, 302 (1965); Traynor, Conflicts of Law in Time, 1967 Duke L.J. 713, 715. It is not without significance in this regard that the “adventitious” element in airline crash cases, mentioned in Kilberg and other New York airline crash cases, was given little or no weight in Miller and Tooker. Looking to the supposed expectations of the parties smacks heavily of the “counting of contacts” approach to conflicts applied in Macey v. Rozbicki, supra, but disavowed in Tooker.

Rather, as we view it, the New York courts would balance against the New York interest in protecting its domiciliaries against wrongful death limitations the interests of Massachusetts in limiting damages for wrongful deaths allegedly caused by Massachusetts citizens or occurring in Massachusetts. Consideration of Massachusetts’ interests in this case should, however, be from the perspective that the damage limitation is not confined to wrongful deaths resulting from medical malpractice but applies to all wrongful deaths however caused. Thus, any interest Massachusetts has in keeping medical liability insurance premiums down so as to avoid passing the increased costs on to Massachusetts citizens in the form of higher medical fees is simply one facet of whatever larger interest it may have in limiting in death as distinguished from personal injury cases the size of damage recovery against its citizens generally. See Tiernan v. Westext Transport, Inc., 295 F.Supp. 1256, 1264 (D.R.I.1969).

That interest we think the New York courts would say is one not based upon logic, reason or social policy, but is really the vestigial remains of the mistaken view that there was no common law action for wrongful death. We say “mistaken,” for Massachusetts has only recently held precisely that, as of now, “the right to recovery for wrongful death is of common law origin .,” Gaudette v. Webb, Mass., 284 N.E.2d 222, 229 (1972), relying upon the late Mr. Justice Harlan’s landmark opinion in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) (wrongful death action lies under general maritime law for death caused by violation of maritime duties). In any event, it is our considered view that the New York Court of Appeals would view the Massachusetts limitation, in the words of Justice Hatch (note 3 supra), as so “absurd and unjust” that the New York policy of fully compensating the harm from wrongful death would outweigh any interest Massachusetts has in keeping down in this limited type of situation the size of verdicts (and in some cases insurance premiums). If as Kilberg pointed out, “The absurdity and injustice [of wrongful death recovery limitations] have become increasingly apparent [since 1894] . . . 9 N.Y.2d at 40, 211 N.Y.S.2d at 136, 172 N.E.2d at 528, since Kilberg they have become even more so. Since Kilberg, a number of states have repealed their wrongful death limitations or increased the amounts so that at the present time there are only seven which have an outright limit, although some jurisdictions place a limit on a component of the damages and various states impose a limit in suits against certain governmental bodies. Indeed, Massachusetts itself recently increased its limits. Our examination indicates that Massachusetts is unique, moreover, in both imposing minimum and maximum damage limitations and assessing damages in proportion to the degree of the wrongdoer’s culpability. Thus, the “absurdity and injustice” of death recovery limitations in general is heightened insofar as Massachusetts is concerned, because it relates damages recoverable not to the damages sustained, but to the degree of culpability, however that can be measured, on the part of the defendant. A respected, famous surgeon like Dr. Warren might well be held liable, were the Massachusetts statute applicable, for only $5,000 in damages, regardless of the damages sustained by the decedent’s survivors. Thus the anachronistic concept embodied in the Massachusetts act is hardly one that the New York courts can be expected to embrace in the case of the death of a New York domiciliary with whose wife and children New York is “vitally concerned.” Miller v. Miller, supra, 22 N.Y.2d at 18, 290 N.Y.S.2d at 739, 237 N.E.2d at 880. The New York policy favors “a just recovery” and “principles of fair play,” MacKendriek v. Newport News Shipbuilding & Dry Dock Co., 59 Misc.2d 994, 1011, 302 N.Y.S.2d 124, 140-141 (S.Ct.1969), that is to say, the “just, fair and practical result.” Neumeier v. Kuehner, supra, 31 N.Y.2d at 127, 335 N.Y.S.2d at 69, 286 N.E.2d at 457, which would not be furthered by applying the idiosyncratic Massachusetts law here. Our educated guess as to what the New York courts would do is to follow Kilberg and Miller and the teachings of Long, and apply the New York law of damages.

The constitutional argument, skillfully set forth in the dissent, was not raised by the parties below or on this appeal. We believe that in this case, like Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir. 1962) (en banc), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963), New York has a significant interest — its domiciliary is the one who died and his next of kin are New York’s charges — and the “incident” in Massachusetts is not purely “a local one,” id. at 561, since the decedent was from out of state, and the defendant hospital is a national one in terms of its patients, its staff, its reputation and its efforts to obtain out-of-state contributions. In these circumstances, the refusal by New York to apply the Massachusetts death act’s qualitative and quantitative limitations, even as it applies the remainder of the death act, is not so unreasonable as to violate the full faith and credit clause, 309 F.2d at 561; see Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, 26 U.Chi.L.Rev. 9, 13-15, 75 (1958); 63 Colum.L.Rev. 133, 141-44 (1963). Compare Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930). The fact that Massachusetts was the situs of the tort and the residence of the defendant would not be sufficient to require as a matter of full faith and credit that the limitations in the Massachusetts law control, in light of the very strong New York policy against wrongful death limitations in connection with its citizens and next of kin and in light of the interstate aspects of the transaction. Pearson established that the Massachusetts death statute could be constitutionally sued upon in New York absent its penal quality and its damage limitations. Given a legitimate forum state interest —as is here present — we see no constitutional difference between death on the Pearson airplane, death in a taxicab on the way from the airport and death on the operating table.

We agree with the court below and affirm the judgment.

LUMBARD, Circuit Judge

(dissenting):

The majority has concluded that the New York courts, on the facts of this case, would refuse to apply the Massachusetts wrongful death damage limitation. Accordingly, it has held that the federal district court, sitting in diversity, correctly refused to apply the Massachusetts damage limitation. From this holding I must dissent both because I do not agree that this a proper appraisal of applicable New York law and because I believe that the full faith and credit clause of the United States Constitution bars the New York courts, and federal district courts sitting in diversity, from refusing to apply the Massachusetts limitation on the fajits of this case.

In effect, the majority has concluded that, as a matter of policy, the New York courts would decline to apply such a damage limitation when the plaintiff, or the decedent, is a New York resident. Although such a per se rule would be consistent with the dictum of the New York Court of Appeals in Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), it flies in the face of the interest-analysis approach to conflict of laws issues later embraced by that court in Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1966), and subsequent decisions. As this court noted in Gore v. Northeast Airlines, 373 F.2d 717, 723 (1967), these later decisions “have created doubts as to the continued validity of the Kilberg doctrine in New York despite citations approving its vitality in the opinions in these cases.” Indeed, these subsequent eases have sought to cast Kilberg in an interest-analysis light, and have cited the minimal interest that Massachusetts, in that case, had in the application of its law, in light of the mere fortuity that the airplane there happened to crash in Massachusetts, in 'contrast with the more substantial New York interest based on the facts that the journey during which the mishap occurred began in New York, the ticket was purchased in New York, and plaintiff and decedent were both New York residents.

The majority purports to decide this case on interest-analysis grounds. However, the sole interest that it has found in New York emanates from the facts of plaintiff’s and decedent’s New York residence. Such an analysis simply proves too much; for it is tantamount to a per se rule that the courts will not apply such foreign damage limitations when the plaintiff is a resident of the forum state. Thus, I believe the majority’s approach amounts to an insupportable abandonment of interest-analysis principles with regard to foreign damage limitations.

Appellee has correctly noted that the New York courts have never honored a foreign damage limitation such as that in issue. However, it is also true that the New York courts have never considered a case in which the interests of New York, in relation to those of the foreign state, were as minimal as they are here. The incident at the root of this litigation, the alleged malpractice of Dr. Warren, does not have the inter-state flavor of the Kilberg facts — death caused while in transit from one state to another. Here the decedent made a deliberate choice to undergo the operation in Massachusetts at defendant hospital. Hence, he journeyed into Massachusetts and registered in defendant hospital where he was under the care of defendant, Dr. Warren. The alleged negligence that resulted in decedent’s death, the operation by Dr. Warren, occurred wholly within Massachusetts under the care of Massachusetts residents and in a Massachusetts institution. New York’s only connection with this occurrence was the patient’s permanent residence in New York. I do not see that New York’s interest in this occurrence is enhanced by the fact that this Massachusetts physician and Massachusetts institution have such an eminent reputation that a substantial number of their patients, many from New York, are not Massachusetts residents and choose to come into Massachusetts and undergo treatment there; for there is no evidence that either defendant solicited patients from outside Massachusetts— their popularity is due solely to their reputation and the choice of the individual patients.

In my opinion the Massachusetts interests and contacts with the occurrence underlying this litigation should predominate. In addition to its interest in protecting its citizens and institutions from excessive recoveries, an important consideration behind the Massachusetts limitation is its policy of keeping liability premiums as low as possible for its residents. The significant differential that the majority has noted between malpractice insurance premiums in New York and those in Massachusetts is some testimony to the success of this policy. This interest of Massachusetts is fortified by the fact that the insurance policy from which any recovery will be paid was issued in Massachusetts. The fact that the policy has no coverage limitation in wrongful death cases, as noted by the majority, is irrelevant; for the difference in premiums makes it clear that the Massachusetts damage limitation is considered by insurance companies in calculating premiums for liability insurance issued in Massachusetts. Therefore, if we are to take the New York courts at their word that they follow an interest-analysis approach to torts conflict of laws problems, I can see no escape from the conclusion that Massachusetts interests predominate here and that the New York Court would on these facts be impelled to apply the Massachusetts damage limitation.

This court, in Ciprari v. Servicos Aereos Cruzeiro, affirming 359 F.2d 855 (1966), 245 F.Supp. 819 (S.D.N.Y., 1965), had occasion to consider whether the New York courts would apply a foreign damage limitation in a case in which the interests of the foreign state were substantial. We held that the damage limitation was applicable. The majority, however, suggests that Ciprari is no longer correct because that case relied on Dym v. Gordon, 16 N.Y.2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792 (1965), which has since been substantially discredited. See Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969). But a reading of Ciprari reveals that the court there relied on the entire line of cases developing the interest-analysis approach in New York, and that Dym, as then the most recent case in that line, was only one of many cases cited. And, in fact, the interests of the foreign state relative to those of New York were even greater in Ciprari than in Dym. Therefore, in the absence of any criticism of our Ciprari holding by the New York Court of Appeals, I would not abandon our analysis in that case, as the majority appears to do, and would reach the same conclusion we reached in Ciprari —that the New York Court would apply the foreign damage limitation.

In any event, even if the majority were correct that the New York courts would refuse to apply the Massachusetts damage limitation against a New York plaintiff, I would hold that such an approach, when applied to a case in which the contacts with Massachusetts are as great as they are here, violates the full faith and credit clause of the United States Constitution. In Pearson v. Northeast Airlines, 309 F.2d 553 (en banc) (1962), cert. den. 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1962), this circuit held that “the ruling of the New York Court of Appeals in Kilberg was a proper exercise of the state’s power to develop conflict of laws doctrine.” (p. 556). Thus, there was no breach of the full faith and credit clause when the New York Court ignored the Massachusetts damage limitation on the Kilberg facts. However, the majority in Pearson explicitly recognized that, in a case in which the Massachusetts interests were greater relative to the New York interests, it would be a constitutional violation for the New York courts to refuse to honor the foreign damage limitation. In this regard, Judge Kaufman wrote for the majority:

We may concede that the Wrongful Death Statute of Massachusetts, almost certainly designed with an eye toward the regulation of occurrences transpiring wholly within Massachusetts, should be honored fully and completely when the incident under litigation is a local one. Such, we take it, is the import of Home Insurance Co. v. Dick (citation omitted). But we cannot concede that Massachusetts has a constitutionally protected claim to the unqualified application of its statute in cases where there is an overwhelmingly interstate flavor, (p. 561).

I cannot see how the alleged malpractice and subsequent death of plaintiff’s decedent can be classified as anything other than a local incident. Therefore, it appears to me that the clear import of this court’s language in Pearson is that, in a case such as that presently before us, the full faith and credit clause would mandate the New York courts to apply the Massachusetts Wrongful Death Statute in its entirety, including the damage limitation. Hence, even if the majority and the district court are correct in their appraisal of New York law, the district court was nevertheless in error in refusing to apply the Massachusetts damage limitation to this case.

Accordingly, I would reverse the order of the district court.

      . Mass.Gen.L. ch. 229, § 2 (1959).

      . Jurisdiction was obtained under Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966).

      . See Justice Hatch in Medinger v. Brooklyn Heights R. R., 6 A.D. 42, 46, 39 N.Y.S. 613, 616 (1896), quoted in Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 40, 211 N.Y.S.2d 133, 136, 172 N.E.2d 526, 528 (1966). New York, it may be noted, was the first state in this country to enact a statute permitting recovery for wrongful death; it did so in 1847, one year before England adopted Lord Campbell’s Act. See Salsedo v. Palmer, 278 F. 92, 94 (2d Cir. 1921). Ironically, Massachusetts has recently become the first state to hold that there was a common law right of recovery for wrongful death and that Lord Ellenborough’s famous dictum to the contrary in Baker v. Bolton, 1 Campb. 493, 170 Eng.Rep. 1033 (1808), was erroneous. Gaudette v. Webb, Mass., 284 N.E.2d 222, 226-229 (1972).

      . The Babcock “interest analysis” approach has been adopted by other state courts in tort cases. E. g., Beaulieu v. Beaulieu, 265 A.2d 610 (Me.1970); see Note, Beaulieu v. Beaulieu: An Obituary for Lex Loci and an Approach to Interest Analysis, 23 Me.L.Rev. 239 (1971). Babcock was the first and is the leading case in the tort field. See Cavers, Cheatham, Currie, Ehrenzweig, Leflar & Reese, Comments on Babcock v. Jackson, A Recent Development in Conflict of Laws, 63 Colum.L.Rev. 1212 (1963). The New York courts have not followed, or at least have not articulated that they were following, the “Better Rule of Law” approach, first candidly advanced in Clark v. Clark, 107 N.H. 351, 355, 222 A.2d 205, 209 (1966), and used in Tiernan v. Westext Transp., Inc., 295 F.Supp. 1256, 1264 (D.R.I.1969); Conklin v. Horner, 38 Wis. 2d 468, 483-484, 157 N.W.2d 579, 586-587 (1968); and Zelinger v. State Sand & Gravel Co., 38 Wis.2d 98, 110-113. 156 N.W.2d 466, 471-473 (1968).

       The Neumeier court did not fail to note that if it had been a New York domiciliary who was injured, “New York has a deep interest in protecting Us own residents, injured in a foreign state, against unfair or anachronistic statutes of that state . . . .” 31 N.Y.2d at 125, 335 N.Y.S. 2d at 68, 286 N.E.2d at 456 (emphasis added). In fact, when serving as forum for tort litigation in which it is not the domicile of the decedent or his benefiiciaries, New York has still generally applied the law of the decedent’s domicile on the issue of the extent of liability. See Thomas v. United Airlines, Inc., 24 N.Y.2d 714, 301 N.Y.S.2d 973, 249 N.E.2d 755, cert. denied, 396 U.S. 991, 90 S.Ct. 484, 24 L.Ed. 453 (1969) (Illinois death action limitation held not to apply to New Jersey, Connecticut and Iowa domiciliarios killed in an Illinois plane crash). Cf. Long v. Pan American World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513, 213 N.E.2d 796 (1965) (Pennsylvania wrongful death statute applied on behalf of a Pennsylvania decedent not survived by spouse, parent, child or dependent even though Maryland was situs of fatal plane crash and its law barred recovery). See also Manos v. Trans World Airlines, Inc., 295 F.Supp. 1170, 1173 (N.D.Ill.1969) (“The predominant interests to be served on the issue of damages are those of the states containing the people or estates which will receive the recoverable damages, if any, for their injuries or their decedent’s death”), quoted with approval, Thomas v. United Airlines, Inc., supra, 24 N.Y.2d at 724, 301 N.Y.S.2d at 979, 249 N.E.2d at 759-760.

      . Ciprari is also factually distinguishable from this case for, as the district court noted:
      This is not a wrongful death case; the public policy of New York to which the majority in Kilberg referred was a public policy applicable to wrongful death cases.
      245 F.Supp. at 824. Furthermore, New York’s interest in assuring adequate compensation to the Oiprari plaintiff was somewhat minimized as he had some recovery for his injuries under New York workmen’s compensation law, 245 F.Supp. at 825.

      . New York lower courts have similarly refused to apply out of state limitations to limit recovery for the wrongful deaths of New York domiciliarles. See Mac-Kendrick v. Newport News Shipbuilding & Dry Dock Co., 59 Misc.2d 994, 302 N.Y.S.2d 124 (Sup.Ct.1969) (New York domiciliary resident in Virginia three months killed in a Virginia industrial accident). Accord, Palmer v. Hertz Corp., 36 A.D.2d 252, 319 N.Y.S.2d 949 (1971); Tjepkema v. Kenney, 31 A.D.2d 908, 298 N.Y.S.2d 175, appeal denied, 24 N.Y.2d 942, 302 N.Y.S.2d 580, 250 N.E.2d 68 (1969); Tickel v. Oddo, 66 Misc.2d 386, 320 N.Y.S.2d 268 (Sup.Ct.1971).

      . If this case presented the converse fact situation where the decedent was a Massachusetts domiciliary and defendant doctor and hospital New York based, it is by no means clear a New York court would apply the Massachusetts wrongful death limitation. For, in addition to its interest in providing adequate compensation to those New York domiciliarles who suffer a wrongful demise, the unlimited nature of the possible recovery in New York can be said to deter resident doctors and medical facilities from acts of malpractice. Thus, New York would have an interest in regulating the conduct of the tortfeasors and “it would be almost unthinkable to seek the applicable rule in the law of some other place.” Babcock v. Jackson, 13 N.Y.2d 473, 483, 240 N.Y.S.2d 743, 751, 191 N.E.2d 279, 284 (1962).

      . See Colo.Rev.Stat. Ch. 41, art. 1 § 3 (1963) ($45,000 limit if decedent left no dependent relative; otherwise unlimited recovery); Kan.Stat.Anno., ch. 60, § 1903 (1970) ($50,000 limit); Mo.Rev.Stat. § 537.090 (1966) ($50,000 limit); N.H. Rev.Stat.Anno., ch. 556, § 13 (1971) ($30,000 unless decedent left a relative in which case the limit is $120,000); Va. Code, § 8-636 (1968) ($25,000 limit if no evidence of pecuniary loss to the survivors; $75,000 limit if there is such evidence plus funeral and medical expenses of deceased); Michie’s West Va. Code, ch. 55, art. 7 § 6 (1965) ($10,000 limit if no evidence of pecuniary loss to the dependent survivors; $110,000 limit if there is such evidence).

      . E. g., Michie’s Md.Code, art. 93 § 4-401 (n) (1971) ($2,000 limit on recovery for funeral expenses); Wis.Stat. § 895.04 (1971) ($5,000 limit on recovery for loss of consortium).

      . E. g., S.C.Code of Laws, tit. 33, § 926 (1962) ($5,000 limit for wrongful death action against a county based on defectively maintained roads).

      . See 7A Mass.Anno.Laws ch. 229, § 2 (Supp.1971) ($5,000 to $100,000 limits depending on tortfeasor’s degree of culpability).

      . Alabama assesses damages in proportion to the culpability of the tortfeasor but has no limit on maximum recovery. See S. Speiser, Recovery for Wrongful Death 71 (1966).

      . After all, as Mr. Justice Reed said in American Stevedores, Inc. v. Porello, 330 U.S. 446, 460, 67 S.Ct. 847, 854, 91 L.Ed. 1011 (1947), “Death is the supreme personal injury.” Nevertheless, in Massachusetts,
      Whatever [the] variances now are or in the past have been, all the [Massachusetts] death statutes have this common, uniform and unaltered characteristic that the amount recoverable is fixed, not on the theory of compensating the surviving relatives of the deceased, but solely on the basis of the quantity of guilt of the defendant under the circumstances of the killing.
      Porter v. Sorell, 280 Mass. 457, 460, 182 N.E. 837, 838 (1932).

      . “If a man destroy the eye of another man, they shall destroy his eye.” R. P. Harper, The Code of Hammurabi, King of Babylon § 196 (2d ed. 1904).


author: COFFIN, Chief Judge.

text:
    GRINNELL CORPORATION, Plaintiff-Appellant, v. Mary C. HACKETT, Director of the Department of Employment Security of the State of Rhode Island and John J. Affleck, Director of the Department of Social and Rehabilitation Services of the State of Rhode Island, Defendants-Appellees, The Chamber of Commerce of the United States of America and The Greater Providence Chamber of Commerce, Intervenors, Appellants.
    Nos. 72-1275, 72-1276.
    United States Court of Appeals, First Circuit.
    Heard Nov. 9, 1972.
    Decided March 15, 1973.

      George M. Vetter, Jr., Providence, R. 1., with whom William R. Powers III, Providence, R. I., David D. MeKenney, West Barrington, R. I., and Hinckley, Allen, Salisbury & Parsons, Providence, R. 1., were on brief, for Grinnell Corporation.
    Lawrence M. Cohen, Chicago, 111., with whom Milton Smith, Denver, Colo., O. F. Wenzler, Washington, D. C., Jeffrey S. Goldman, Chicago, 111., Guy J. Wells, Providence, R. I., Gerard C. Smetana, Chicago, 111., Lederer, Fox & Grove, Chicago, 111., and Gunning, LaFazia, Gnys & Seyla, Inc., Providence, R. I., were on brief, for The Chamber of Commerce of The United States of America and The Greater Providence Chamber of Commerce.
    Warren H. Pyle, Boston, Mass., with whom Angoff, Goldman, Manning, Pyle & Wanger, Boston, Mass., were on brief, for intervenor, United Steelworkers of America, AFL-CIO.
    W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for defendants-appellees.
    Before COFFIN, Chief Judge, ALD-RICH and MeENTEE, Circuit Judges.
   COFFIN, Chief Judge.

This case brings before us again the complex question whether state financial aid to striking workers, here unemployment compensation benefits, is preempted by the federal labor statutes and policy. We initially wrestled with that preemption question in a ease involving state and federal welfare benefits made available to strikers. ITT v. Minter, 435 F.2d 989 (1st Cir. 1970), cert. denied, 402 U.S. 933, 91 S.Ct. 1526, 28 L.Ed.2d 868, reh. den., 404 U.S. 874, 92 S.Ct. 27, 30 L.Ed.2d 120 (1971). See Note, Welfare for Strikers: ITT v. Minter, 39 U.Chi.L.Rev. 79 (1971).

On March 20, 1972, after unsuccessful negotiations for a new collective bargaining agreement between the plaintiff and Local 4756 of the United Steelworkers of America, all 585 of the plaintiff’s employees went on strike. Some of them applied for and received welfare assistance, both state General Assistance, § 40-6-8 General Laws of Rhode Island (R.I.G.L.) (1971 Pocket Supp.), and federally assisted AFDC-U benefits (aid to families with unemployed fathers), R.I.G.L. § 40-6-7, 42 U.S.C. § 607; and food stamps, 7 U.S.C. §§ 2011-25. As of the week ending May 13, 1972, 404 of the plaintiff’s employees received unemployment compensation benefits, R.I.G.L. § 28-44-1 et seq., under a special provision which permits payments of such benefits, after the general one-week waiting period (§ 28-44-14) and a special additional six-week period, to individuals “unemployed because of a strike”, R.I.G.L. § 28-44-16.

On May 15, plaintiff filed the complaint in this case, seeking a preliminary and permanent injunction against the defendants Hackett and Affleck, who are the directors, respectively, of the Departments of Employment Security and Social and Rehabilitation Services of the State of Rhode Island. The defendants moved to dismiss for failure to state a claim upon which relief could be granted and subsequently filed an answer alleging failure to state a claim, lack of conflict between the federal and state statutes, and failure to join an indispensable party, the local union. The United Steelworkers of America, AFL-CIO, and the Chambers of Commerce of the United States and Greater Providence sought and were granted leave to intervene.

On May 30 and 31, the district court held a hearing on the motion for preliminary injunction at which the plaintiff presented three witnesses, two of whom, Armand Thieblot and Ronald Cowin, were co-authors of a study entitled “Welfare and Strikes: The Use of Public Funds to Support Strikers”. The book, which was also introduced as an exhibit, was explicitly an attempt to answer some of the empirical questions which we indicated in Minter a court would have to consider in deciding the preemption issue. An affidavit by Herbert Northrup, the supervisor of the project at the University of Pennsylvania School of Finance which led to the book, was also introduced as an exhibit. Defendants presented two brief witnesses, one of whom was the defendant Haekett, and one exhibit, “Handbook of Labor Statistics 1971” published by the United States Department of Labor.

In its opinion, issued on June 15, the district court attempted to discern whether under Minter it could consider evidence as to the impact of unemployment benefits on federal labor policy and, if so, whether such evidence could overcome the state interest supporting the unemployment compensation scheme. It initially quoted at length the relevant portions of our opinion in Minter, which had come to us on a denial of a preliminary injunction on the pleadings. We there first noted that in labor preemption eases involving an alleged tangential frustration of national labor policy, rather than a direct overlap of state and federal regulations of labor activities as in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), “a balancing process seems called for ... in which both the degree of conflict and the relative importance of the federal and state interests are assessed.” 435 F.2d at 992. After noting our hesitance at making any a priori judgments regarding either the extent of conflict or the relative strengths of the federal and state interests, we described some of the questions of general scope which a court would have to consider, as to both issues, if a case went beyond the pleadings. We then stated that

“This very catalogue of data relevant to a macrocosmic weighing, which a court, if called upon would have to undertake, indicates the preferable forum to be the Congress.” 435 F.2d at 993-994,

and noted the strong likelihood that Congress was aware of this problem. We concluded:

“In sum, wholly apart from the inadquacy of the evidence before the district court, we have substantial doubt that a significant frustration of federal collective bargaining policy is effected by the granting of welfare benefits to indigent strikers or that, even so, the state interest is so insubstantial compared to the federal interest that Congress must be supposed to have deprived the state of such power to serve that interest.” 435 F.2d at 994.

The district court here, after quoting these and other passages, found “no distinctive difference” between the Rhode Island unemployment scheme and the Massachusetts welfare scheme upheld in Minter; ruled that the former’s purpose was “to protect citizens against economic vicissitudes” and was “hardly abandoned” by the six-week waiting period; noted that “[i]t also appears that many of the Grinnell strikers would be receiving welfare were they not receiving unemployment compensation”, that Congress was not unaware of the problem, and that the state interest in “the well-being of its unemployed and ultimately for the health of the local community” was substantial. The court then held that the preemption issue was not justiciable but that in any case “The state’s interest is so substantial that this Court will not conclude that Congress has excluded such state action.” Grinnell Corp. v. Hackett, 344 F.Supp. 749, 753-754 (D.R.I.1972). For these reasons, it denied the preliminary injunction, granted the motion to dismiss and made no findings on the issue of infringement of the federal collective bargaining process. The plaintiff and the two Chambers of Commerce appealed from the subsequent order to that effect.

We are unable to affirm the district court on either ground of decision. First, we continue to believe, as we indicated in Minter, that the preemption issue is justiciable, albeit complex. Moreover, for reasons that we will develop more fully later, on the present record we are not able to determine whether the state interest in unemployment compensation is the same, or as substantial, as the state interest in welfare, as the district court seemed to believe, and we have substantial doubts whether that issue need even be reached. At the same time, we have serious doubts whether the existing record is sufficient to meet the plaintiff’s burden of showing the probability of establishing that the Rhode Island unemployment compensation program substantially disturbs the collective bargaining process. Since, however, it is not for us to make findings of fact, we vacate the denial of a preliminary injunction. We also reverse the dismissal of the complaint for failure to state a cause of action, being unable to rule categorically that no evidence could be presented which would support the claim, see Dow Chemical Co. v. Taylor, supra, n. 3 (refusing to dismiss complaint alleging federal preemption of unemployment benefits to strikers). Since a remand is necessary, and further evidence may be presented, we will discuss the issues in the order that we believe a court should generally follow when faced with this question. After considering justiciability, we will examine whether “Congress has unmistakably ordained” that states not exercise power in this area. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Armour & Co. v. Ball, 468 F.2d 76 (6th Cir. 1972). Finding no such clear manifestation, we will then comment on the nature of the infringement issue, the inadequacy of the present record and suggest possible other evidence that might be more relevant and persuasive. Finally we will consider the state interests and the factual inquiries that might be material in that regard.

JUSTICIABILITY

Justiciability is, of course, as Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), taught, distinguishable from subject matter jurisdiction, which was here properly not disputed, a civil action wherein the matter in controversy exceeds $10,000 arising under the Constitution and laws of the United States, 28 U.S.C. § 1331, in particular an Act of Congress regulating commerce, 28 U.S.C. § 1337. Justiciability concerns the propriety of judicial decision in light of the posture of the controversy or, as here, the distribution of functions among the coordinate branches of the federal government. Two formulations of nonjustieiability arguably applicable here are “a lack of judicially discoverable and manageable standards for resolving [the case]; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”, 369 U.S. at 217, 82 S.Ct. at 710. The district court interpreted Minter as saying that “the issue is one for decision by the Congress, not the Courts.” 344 F.Supp. at 754. Although we did indicate there and still believe that the complexity and generality of the issue made Congress “the preferable forum”, 435 F.2d at 994 [emphasis added], we did not say that the questions were therefore beyond the ken of the courts. Indeed, we spoke frequently of what “a court would” or “must” do “if called upon” by appropriate evidence. Id. at 993. Moreover, our sketching of the appropriate analysis, with relevant citations to other preemption cases, suggested that judicially manageable standards have been discovered by the Supreme Court and that courts are competent to determine, solely by the exercise of judicial judgment upon relevant evidence, whether Congress’ initial policy determinations or the nature and effect of the federal and state policies at issue require a finding of preemption. Finally the very fact of our decision on the merits, and the Supreme Court’s many decisions on the merits in labor preemption cases, even of the non-Garmon variety, see e.g., Teamsters Local 20 v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964), indicate that the issues are justiciable. Although it is possible that a complete evidentiary record, along the lines suggested herein, might ultimately convince us that judicial fact-finding and decision-making are unmanageable or impossible in unusual preemption cases, such as this, see discussion infra, we cannot, on the present record and the present state of our knowledge, say that as to the issues here, unlike all other preemption issues, Congress is not just the preferable, but the only forum.

Before leaving justiciability, we feel compelled, in light of the position taken by appellee’s counsel at argument, to reaffirm our holding in Minter that a case such as this is not moot, although the particular strike which prompted the suit and the payment of benefits challenged have, as here, terminated by the time of appeal. We are unable to say that the issue will not recur with regard to this very plaintiff — one strike of the length requisite to raise the issue has now taken place at its plant and nothing in the record suggests the unlikelihood of future repetition. See General Dynamics Corp. v. Local 5, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, 469 F.2d 848 (1st Cir. 1972). Moreover, the intervening Chambers of Commerce, who have filed their own complaint for declaratory and injunctive relief, represent many other employers in Rhode Island, as to at least some of whom the issue is certain to recur.

CONGRESSIONAL INTENT

If Congress has made clear its intent, either to preempt or not to preempt, no further inquiry is required. Yet, if the intent is not unmistakable, and evidence and legal analysis must be undertaken, Congressional awareness of the problem and its ability to resolve it finally and specifically, may, as we said in Minter, in a closely balanced situation, be sufficient justification for upholding the state action. We find that although the existing legislative record is not sufficiently clear to establish Congressional intent either way, it strongly indicates. Congressional awareness, the availability of opportunities to act, and Congressional action in closely related matters which would prove relevant should the evidence on infringement and state interest be closely balanced.

In July 1933, the Federal Emergency Relief Administration (FERA) ruled that it would not “attempt to judge the merits of labor disputes” but would treat unemployed strikers like all other unemployed persons for purposes of relief. Brown, Public Relief 1929-39, 270 (1940). This policy became a bone of contention during the textile strike of September 1934. Bernstein, The Turbulent Years: A History of the American Worker 1933-41, 307 (1971). Congress could hardly have been unaware of this policy when in 1935 it passed in close succession both the National Labor Relations Act, 49 Stat. 449, and the Social Security Act, 49 Stat. 620, Title IX of which, 49 Stat. 639-645, is now the Federal Unemployment Tax Act, 26 U.S.C. §§ 3301-09. Indeed, in detailing the requirements for state laws that would exempt employers from the federal unemployment tax, Congress specifically established three conditions to insure the compatibility of state unemployment compensation laws with the then brand-new labor statute — unemployment compensation could not be denied to an otherwise eligible individual for refusing to accept new work (1) if the position offered was vacant due directly to a labor dispute, (2) if the wages for the offered job were substantially less favorable than those prevailing locally for comparable work or (3) if a condition of the offered employment was membership in a company union or resignation from a bona fide union. § 903(a)(5), 49 Stat. 640, 26 U.S.C. § 3304(a) (5). Certainly, had it thought it necessary to preserve its labor policy, Congress could also have required state laws to bar payment of benefits to strikers. Moreover, pursuant to § 3304(a) the Social Security Board, presumably aware of the Congressional intent, approved, within the next few years, four state laws which allowed payments to strikers. Ch. 468, § 504(2) (b), 1-1935 N.Y.Laws 1033, as amended N.Y.Labor Law § 592(1) (McKinney’s Consol.Laws, c. 31, 1965); 1935-36 R.I.Pub.Laws 848 (1936), as amended R.I.G.L. § 28-44-16; Act No. 1, § 401(e), 2-1937 Pa.Laws 2914 (2d Extra Sess.1936) (repealed 1947), see 43 Pa.Stat.Ann. § 802(d); No. 164, § 4(d), 1938 La.Acts 394 (repealed 1946), see 23 La.Rev.Stat.Ann. § 1601(4).

In 1947, the Hartley bill, passed by the House, provided that a striker who accepted unemployment compensation benefits would no longer be considered an “employee” under the National Labor Relations Act, § 2(3), H.R. 3020, 80th Cong., 1st Sess. (1947), and thus would lose all rights under the Act, because, as the committee report indicated, such benefits were “a perversion of the purposes of the social security laws”. H.R.Rep.No.353, 80th Cong., 1st Sess. 12 (1947). In conference, however, the provision was dropped without explanation. Conf.Rep.No.510, 80th Cong., 1st Sess. (1947), 1947 U.S.Cong.Service 1135, 1137-39. Given this silence, the enormous political controversy surrounding the Taft-Hartley Act, and the consequent need for compromises, perhaps unreasoned or hasty, we cannot read this deletion and the subsequent approval of the conference bill as specific congressional resolution of the problem.

More recently, in 1969, President Nixon, in a message to Congress, specifically proposed a requirement that states deny unemployment benefits to strikers. Message from President Nixon, Hearings Before the House Committee on Ways and Means on H.R.12625, 91st Cong., 1st Sess., at 12 (1969). The Committee, however, deleted the provision in creating a substitute bill (H.R. 14705), H.R.Rep. No. 612, 91st Cong., 1st Sess. (1969), because, as Chairman Mills explained briefly on the floor of the House in the course of discussing other aspects of the bill:

“We have tried to keep from prohibiting the States from doing the things the States believe are in the best interest of their people. . . . For example, there are two States which will pay unemployment benefits when employees are on strike. . . . [I]f the State wants to do it we believe they ought to be given latitude to enable them to write the program they want.” 115 Cong.Rec. 34106 (1969).

The House passed the substitute bill without amendment or- further discussion of this deletion, 337 to 8, 115 Cong. Rec. 34110-11(1969). The following year, the Senate considered the House bill which made, of course, no mention of the striker benefits issue. In the course of explaining a provision preventing states from cancelling an individual’s benefit credits because of an act which disqualified him under state law from receipt of benefits for the subsequent period of unemployment, the Senate Finance Committee Report stated:

“It would not prevent a State from specifying the conditions for disqualification such as, for refusing suitable work, for voluntary quitting, for unemployment due to a labor jdispute in the worker’s plant, etc. It would not preclude disqualifications which only postpone the receipt of benefits for a specified or flexible number of weeks.” S.Re'p.No.752, 91st Cong.2d Sess. (1970); 1970 U.S. Code Cong. & Admin.News, pp. 3606, 3627.

Although during the course of the Senate debate, 116 Cong.Rec. 10573-90 (1970), this provision preventing cancellation of credits was described, id. at 10575, no mention was made of either the state disqualifications for labor disputes or of the striker benefits issue. Neither the Conference Report, Conf. Rep.No.1037, 91st Cong. 2d Sess. (1970), 1970 U.S.Code Cong. & Admin.News, p. 3646, nor the subsequent floor debates —116 Cong.Rec. 25608-17 (House), 27305-23 (Senate) (1970) — made any mention of the issue. We are aware of the importance and power of the House Ways and Means Committee and of the significance of its Chairman’s statements on bills within its jurisdiction. Yet, in the absence of any floor amendment or debate related to that particular change in either house, and of any real consideration of the issue at any level in the Senate, we cannot take the House Committee’s deletion, and Congress’ subsequent approval of the substitute bill, as a clear indication of the intent of the entire Congress not to preempt unemployment payments to strikers.

Congress has, on the other hand, shown its ability to act specifically and directly in other, closely related areas. In the Railroad Unemployment Insurance Act, 52 Stat. 1094 (1938), as amended 45 U.S.C. §§ 351-367, Congress explicitly provided that only those engaged in unlawful strikes were disqualified from unemployment benefits. 45 U.S.C. § 354 (a-2) (iii). A recent Administration bill to repeal this provision, S. 560, 92nd Cong., 1st Sess. (1971), did not pass. Similarly, in 1971, Congress amended its original scheme in which the states were allowed to set eligibility standards for the Food Stamp Act, § 5(b), 78 Stat. 703, 704 (1964), and required the Secretary of Agriculture to set “uniform national standards of eligibility.” 7 U.S.C. § 2014(b) (1972 Supp.) Although it specifically required a national standard disqualifying households with able-bodied adults who refuse to register or accept employment, Congress added a proviso:

“Refusal to work at a plant or site subject to a strike or a lockout for the duration of such strike or lockout shall not be deemed to be a refusal to accept employment.” 7 U.S.C. § 2014(c) (1972 Supp.).

The stated reason for this provision and rejection of a provision disqualifying strikers was Congress’ determination not “to take sides in labor disputes”, H.R.Rep.No. 1402, 91st Cong., 2d Sess. (1970), 1970 U.S.Code Cong. & Admin. News, pp. 6025, 6035, a phrase reminiscent of the FERA policy. Likewise, in the AFDC-U program, Congress, after initially leaving the determination of standards to the state, § 407, 75 Stat. 75, insisted in 1967 that the Secretary of Health, Education and Welfare determine the standard of unemployment, 42 U.S.C. § 607(a), (b)(1)(A). In Davidson v. Francis, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972), the Supreme Court affirmed the judgment of a three-judge court, 340 F.Supp. 351 (D.Md.1972), which construed literally the language of the subsequent regulation, 45 C.F.R. § 233.100, holding that “any father” included one working less than the requisite hours because of a strike and finding no preemption problem with such aid, citing Minter. Thus, presently federal law also requires payment of AFDC-U benefits to strikers in the 24 states participating in that program.

The existence and interpretation of these provisions in analogous programs might be read as indicating a broad Congressional intent not to preempt payments to strikers under public assistance statutes. Yet, given the ability of Congress to articulate that intent in other programs, one might also infer that its silence in the unemployment compensation statute Was indicative of a contrary intent. That, too, however, is not a reasonable inference, given the pre-1935 policy, the 1935 Acts and the rejection of explicitly prohibitory legislation in both 1947 and 1969. The most that can fairly be said, in the face of this legislative record, is that Congress has been and presently is aware of the problem, has had' the opportunity to resolve it, and has acted in closely analogous circumstances.

Since unambiguous Congressional intent in lacking, a court must consider the following questions: does the payment of unemployment compensation benefits to strikers “palpably infringe” upon federal labor policy? Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 766, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945), and is the state interest in cushioning the impact of unemployment stronger than the federal interest in untrammelled collective bargaining? Although a negative answer to the first question or an affirmative answer to the- second would, strictly, dispose of the case, a district court would be well advised to consider both issues, as it considers both patent validity and infringement in a patent case. Naturally, if palpable infringement is found, the strength of the state interest must be explored; and if the state interest is first approached and found not more compelling than the federal interest in free collective bargaining, then the issue of palpable infringement must be inquired into. Should a court, however, find infringement but also that the state and federal interests are closely balanced it could properly decline to find preemption because of the historical and continuing Congressional, awareness, opportunity, and demonstrated willingness to act in this field.

INTERFERENCE WITH LABOR POLICY

Since the district court has explicitly declined to make any findings on the issue of infringement, and in any event on remand this issue remains open, we think it well to alert court and counsel to critical problems of relevance posed by the study and testimony thus far put into evidence.

We note initially the need to define precisely the infringement question relevant to unemployment benefits. The Rhode Island unemployment compensation for strikers statute under attack here, like its sole companion in the state of New York, does not provide strikers with benefits from the start. Rather it imposes, in addition to the general waiting period for all unemployed claimants, § 28-44-14, an additional six-week waiting period for striking claimants, § 28-44-16. It is thus fundamentally different from state welfare programs and the federal food stamp program which provide for payments immediately upon a showing of need. The relevant question then in determining this statute’s impact upon the federal collective bargaining policy is whether the receipt or expectation of receipt of unemployment compensation benefits after seven weeks of a strike causes workers to stiffen bargaining demands beyond those they would have made without such benefits, to strike in the first instance when they would otherwise have settled, or to continue a strike for a longer period than they otherwise would.

To date, plaintiff has not addressed this question directly. Rather it has relied on an extensive empirical study of the payment of welfare benefits and food stamps, available from the moment of need, to strikers in thirteen strikes. In only four were any unemployment benefits paid, in each case in New York state. Whatever support this massive body of data would provide for a finding regarding the impact of receipt of welfare and food stamps on strike length, and as we note below that would seem minimal at best, it cannot support any finding regarding the impact of unemployment benefits not received until after seven weeks, in the absence of some effort to differentiate the separate impacts of the different forms of aid.

Only a small proportion (17 per cent) of strikers in all strikes studied received welfare aid roughly equivalent to unemployment benefits. Our computations indicate that an even smaller proportion (7 and 13 per cent in the only two strikes for which relevant figures were provided) received unemployment benefits. It would not seem to us tenable to assume, a priori, that such a small percentage of the total strike force would have a determinative impact on a strike-related decision of a majority of workers.

Moreover, as the study itself admits, the exceedingly long strikes used in the study, during which strikers in relevant states could qualify for unemployment benefits, are highly atypical. As tables in the defendant’s Handbook establish, the national average duration of work stoppages between 1936 and 1969, when unemployment benefits were available to strikers in Rhode Island and New York, ranged from a low of 5 days (in 1943) to a high of 25.6 days (in 1947). In the period from 1959-69, the percentage of work stoppages nationwide lasting 60 days or more never exceeded 11.7 per cent.

Aside from the irrelevance of welfare figures and the small proportion of persons and strikes affected, the present record suffers from a fundamental defect. It provides no support for a causal relationship between the receipt of benefits, which unions obviously desire and often actively seek, and longer, costlier strikes. It may be, as the senior author of the study testified, that “there is no way of really determining whether welfare use makes a strike longer or costlier”. Yet the record lacks even a crude form of what we assume would be the most relevant and probative type of evidence — statistical comparisons of the length and cost of strikes in states granting unemployment benefits (Rhode Island and New York) and the length and cost of strikes of similar size in similar industries in other states not granting such benefits. Such general statistical data would at least provide some hard primary evidence on which to start analysis and base broad opinion surveys or other particularistic empirical approaches. Their weight would depend on the extent to which they considered and controlled for other factors potentially responsible for any disparities —such as the size and nature of the industry, the length and strength of union representation, past labor-management relations and prior strike history, the relative wage and benefit structure under the expiring agreement, and local cost-of-living or other economic or structural peculiarities.

The only attempt to provide the missing causal link is the transcription, presumably partial, of six interviews with labor, management and welfare representatives in two particular strikes (out of a total of 60 interviews said to have been conducted). While we find these interviews oversimplistic and conclusory, and the answers accordingly wholly ex-pectable, a more representative and sophisticated sampling of experience and attitudes directed at the effect of the actual or expected receipt of delayed unemployment benefits might be helpful to a court seeking to decide the relevant question of infringement.

STATE INTEREST

If a court were to find, based on relevant and persuasive evidence, that payment of unemployment benefits significantly frustrated the federal policy of collective bargaining, it would then have to consider whether the unemployment scheme represented a compelling state interest “so deeply rooted in local feeling and responsibility that ... we could not infer that Congress had deprived the States of the power to act.” Garmon, supra, 359 U.S. at 244, 79 S.Ct. at 779. Here the district court found the interest so substantial as to override any frustration of labor policy, however significant. We are not prepared to so hold, on the present record, especially given our doubts that the issue need be reached.

First, as we noted in Minter, the state interests in unemployment compensation and welfare do not appear on their face identical. Welfare payments, premised on a finding of need, are directed at alleviating real hardship — serious threats to the physical well-being, indeed in some cases survival, of individuals. Unemployment benefits, in contrast, are conditioned on a certain minimal amount of prior employment and earnings in a specified period, R.I.G.L. § 28-44-11, computed as a percentage of past earnings, within fixed outer limits, § 28-44-6 (additional amounts of $5.00 per week are paid for each dependent child under 18, up to a maximum of four dependents), and limited in duration to a certain percentage of prior weeks worked, again with a fixed maximum (26 weeks), § 28-44-9. The amount of assets on hand or the nature of individual or family need are irrelevant. The state interest would then appear to be, as the statute’s declaration of policy, § 28-42-2, indicates, the avoidance of “economic insecurity”, or put another way, insurance against the temporary disruption of a flow of income.

Indeed, as to unemployment compensation for strikers, the state interest would appear somewhat narrower. The provision for such payments, § 28-44-16, by imposing an extra six-week waiting period in addition to the generally applicable one-week period, obviously does not insure an uninterrupted flow of income. Rather it seems aimed at preserving the standard of living and meeting the obligations previously undertaken with the reasonable expectation that the prior flow of income would continue. It is common knowledge (perhaps even judicially noticeable, if that were necessary) that consumer payment obligations in our increasingly credit-dependent society are monthly. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). One month’s bills can usually be met from cash on hand (frequently derived from the last pay-check which is often distributed after the commencement of the strike) or delayed by discussions with understanding and rational creditors. A second flood will, however, often breach the dike. Indeed, although probably not essential to decision, evidence might establish that more than two months’ interruption of income — and hence credit payments— would produce substantial defaults, with consequent foreclosures, repossessions (garnishment, of course, being a worthless remedy when no income exists) and even bankruptcies. The state certainly has an interest, the quantum of which we need not now decide, in avoiding such economic and social dislocations.

Nevertheless, although purely statutory analysis suggests differences in the state’s interest in welfare and in unemployment compensation, we are not certain that in practice the interests do in fact diverge. The district court stated, in its discussion under the heading “Conclusions of Law” that “It also appears that many of the Grinnell strikers would be receiving welfare were they not receiving unemployment compensation.” 344 F.Supp. at 753. The record before the court indicated that no persons received both unemployment compensation and AFDC-U, see also 42 U. S.C. § 607(b) (2) (C) (ii) ; 45 C.F.R. § 233.100(c) (1) (v) (b), and that although 69 strikers were initially found eligible for public assistance, only 16 were still receiving such aid as of the date of the hearing because “the remainder were found ineligible because of increased income due to receipt of Unemployment Compensation benefits.” Had there been a finding of fact that a substantial percentage of striking workers in Rhode Island would, if denied unemployment compensation, qualify for public assistance, this would constitute a ground for concluding that in fact the state interest in unemployment compensation is substantially the same as its interest in welfare, the quantum of which we again need not decide now.

Finally, whether or not the evidence permitted a conclusion that the state interest served by welfare and unemployment was at bottom the same, a court could consider the secondary economic and social effects of unemployment payments or their absence. In Minter, we suggested at least two possible effects of financial aid — minimization of violence in labor disputes, insofar as caused by the bitterness attendant upon the hardships normally suffered by strikers, and avoidance of economic stagnation in local communities, by which we primarily meant the effect on local businesses of the sudden drop in consumer demand resulting from the abrupt and total termination of income for a substantial part of the community’s families. The book, one author, and the project supervisor all indicate that the study, although showing incidents of violence in strikes where state aid was made available, did not provide any basis for a conclusion either way. The author and supervisor both stated, however, as a matter of common sense, that strikes in which assistance was provided to strikers might produce higher settlements with their generally attendant inflationary effects. The latter also suggested that longer strikes with costlier outcomes could make some employers non-competitive, thus forcing them to close, with the resulting long-term unemployment and local economic stagnation. Again, the complex nature of the issues suggests that empirical evidence and expert economic testimony as to the nature and scope of both the long-term impact on industry pricing and competitiveness and the short-term impact on consumer demand and the relationship between the two could assist courts in evaluating the substantiality of the state interest.

We are not unaware of the unusual nature of our insistence on an appropriate and detailed evidentiary basis for deciding the preemption issue, and in particular the issue of infringement of federal policy. We believe, however, that this is the unusual preemption case. For unlike Garmon labor preemption cases or non-labor preemption cases like Florida Lime, one cannot ascertain from the face of the statutes whether they affect the same activity. Similarly, although our statute, like that in UAW v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958), unambiguously announces the state interest promoted, the practical overlapping of parallel statutes and the complex and uncertain effects of the state action suggest that we cannot simply apply the relevant legal test to the statutes on their face. Our efforts to create an adequate evidentiary record should not, then, be taken in any sense as a departure from, or attempt to distinguish, the governing law of preemption; they are merely attempts to apply that law to a most unusual circumstance.

For the reasons already described, we vacate the district court’s denial of the preliminary injunction, reverse its grant of the defendants’ motion to dismiss for failure to state a claim, and remand the case for further proceedings consistent with this opinion.

      . See also Note, Congressional Preemption in Labor Relations, 6 Suffolk U.L.Rev. 263 (1972); Note, Welfare Assistance to Strikers in Need: The Protestant Ethic Revisited, 67 Nw.U.L.Rev. 245 (1972); Lascaris v. Wyman, 340 N.Y.S.2d, 292 N.E.2d 667 (1972).

      . No questions regarding the welfare payments or food stamps are before us.

      . In addition to the briefs of the parties, the court made use, after providing the parties with notice and an opportunity to respond, see Code of Judicial Ethics Canon 3A (4), of the briefs of the student contestants in the Harvard moot court finals competition. Although the case used there, entitled Agar Chemical Corp. v. Taylor, was fictitious, it was patterned roughly after Dow Chemical Co. v. Taylor, 57 F.R.D. 105 (E.D.Mich.1972), and contained many of the issues involved in this case.

      . The Rhode Island statute contains, of course, these necessary provisions, R.I. G.L. § 28-44-20, as well as the provision for payment to strikers, § 28-44-16.

      . The Secretary of Health, Education and Welfare is presently in the process of revising the definition. Also, a bill introduced in the last Congress, as an amend-meat to Administration’s Family Assistance Plan, would liave denied strikers such assistance. H.R. 6004, 92nd Cong., 1st Sess. (1971).

      . N.Y. Labor Law § 592(1) (McKinney 1965).

      . New York law imposes effectively an eight-week waiting period — a general “four effective days” period, N.Y. Labor Law § 590(9) (McKinney 1965), and a special additional seven-week period for strikers. Id. § 592(1). In Michigan, strikers can apparently claim unemployment compensation benefits after obtaining, and being laid off from, interim employment. See Dow Chemical, supra n. 3.

      . General Assistance — R.I.G.L. §§ 40-6-5, 8, 22, § 40-5-1 (1971 Pocket Supp.); N.Y. Social Services Law §§ 131, 158 (McKinney 1972-73 Pocket Part), Lasearis, supra n. 1; see also Mass.Gen. Laws Annot. ch. 117, § 1 (1973 Pocket Part). Food Stamps — 7 U.S.O. § 2014 (b); 7 C.F.R. §§ 271.1 (s), 271.3. The study introduced in this case notes the availability of General Assistance from the date of demonstrated need but adds that most states attempt, after the federally mandated 30-day waiting period for AFDC-U, 42 U.S.C. § 607(b)(1)(A), to transfer individuals to that federally assisted program. Such a transfer is advantageous to the individual involved because, among other reasons, it automatically includes his family in the state’s Medicaid program, 42 U.S.C. § 1396a (a) (10).

      . AVe have phrased these questions in general terms, although we are only dealing directly with the Rhode Island statute, because, as we noted in Minter, preemption decisions are to be made via macro-cosmic rather than particularistic inquiries. Thus evidence as to the New York experience, with the questions rephrased to reflect the longer waiting period, and the Michigan experience, if sufficiently widespread, would be both relevant and significant.
      In addition, we are fully aware that the impact of subjective expectations is less susceptible to proof. We include reference to expectations not to indicate that adequate proof regarding actual receipts would be insufficient to establish infringement — which would not be correct — but rather to suggest that proof of infringement need not be limited to cases of actual receipt.

      . Although 60% of the strikers received food stamps, that form of aid is not comparable in value and hence in impact to unemployment benefits, as the stipulations in this case and the tables on national averages in the book’s Appendix indicate. Here the average striker received $44.00 per month in food stamp values while the average unemployment benefit was $77.20 per week. That food stamps are complementary to, rather than competitive with, unemployment benefits is also suggested by the fact that the two benefits may be received at the same time. In contrast, the statutory prohibition against joint receipt of AFDC-U and unemployment benefits, 42 U.S.C. § 607(b) (2) (C) (ii), and the similar amounts provided — in this case AFDC-U benefits were $280 per month — strongly suggest their comparability in value.

      . Courts generally determine state interests from unchallenged state assertions, e. g., one-year residency requirements decrease the amount of welfare payments, or irrefutable policy concerns, e. g., the state has an interest in preventing voting frauds, rather than from evidence. Although we are not requiring evidence with regard to the state interests, we are not prepared to say that in this unusual kind of preemption case, see discussion infra, evidence might not be properly introduced and considered with regard to the substantiality, if not the very existence, of the state interests.

      . We do not mean to intimate that we have found specific evidence in the legislative record or elsewhere that Rhode Island legislators had precisely these consumer problems in mind when, in 1936, they imposed this seven-week waiting period. Nor do we mean to exclude the possibility that the legislators specifically intended to force management to capitulate after seven weeks by aiding strikers. Bad motivation, however, will not vitiate otherwise sound legislation. Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971). Moreover, since the state interest in such legislation may change over time, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and since the object of this inquiry is the present effect on both federal labor policy and a state’s interests, a court is obliged to consider possible present, as well as historical, rationales.

      . We are, however, aware of and impressed with the suggestions of Professor Cox for expanding the currently existing rule for non Garmon labor preemption cases, which he suggests was enunciated in Morton, supra, into a single rule for all labor preemption cases. Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337 (1972). We are, of course, not in a position to adopt or reject such a test, In any case, although he does not discuss the kind of preemption case we are here faced with, we believe that his formulation is similar to our own statement of the existing- rule for non-G-armon preemption cases and that it would, in our unusual case, probably still require the kind of evidence we have called for.