author: GIBSON, Circuit Judge.

text:
    INTER-COLLEGIATE PRESS, GRAPHIC ARTS DIVISION, etc., and Sargent Welch Scientific Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondents. BOOKBINDERS LOCAL NO. 60, INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 72-1573, 72-1749.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1973.
    Decided Oct. 25, 1973.

      Alvin D. Shapiro, Kansas City, Mo., for Intercollegiate Press.
    William O. Eisler, Kansas City, Mo., for Bookbinders.
    William DuRoss, III, Atty., NLRB, Washington, D. C., for National Labor Relations Board.
    Before GIBSON and BRIGHT, Circuit Judges, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

      . In Ottawa Silica Co., Inc. v. N. L. R. B., 482 F.2d 945 (6th Cir. 1973) the court entered an order enforcing the Board’s order in Ottawa Silica Co., 197 N.L.R.B. No. 53, 80 LRRM 1404 (1972), wherein the Board found no violation of the Act in the use of temporary replacements during a lockout. In N. L. R. B. v. Golden State Bottling Co., 401 F.2d 454, 457 (9th Cir. 1965), the court in dicta stated:
      “The legal course open to [the employer] was to hire temporary replacements for the locked out employees. National Labor Relations Board v. Brown, 1965, 380 U.S. 278 [85 S.Ct. 980, 13 L.Ed.2d 839].”
      Neither of these cases offer any discussion of the question and thus give little guidance in this case except to the extent they indicate a reluctance to adopt a per se rule as enunciated in Inland Trucking.

   GIBSON, Circuit Judge.

Does the use of temporary replacements during a bargaining lockout constitute a violation of §§ 8(a)(1) or 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq.?

The contending parties are sharply divided on this issue. The Union has contended throughout these proceedings for a per se rule forbidding the hiring of temporary replacements during an otherwise lawful lockout, the Company has viewed the practice as a legitimate economic weapon countering the union’s right to strike, and a divided Board (3-2) shunned the per se approach in favor of an approach balancing the conflicting legitimate interests of both the employer and employee.

The Company was charged with violations of §§ 8(a)(1) and (3) for continuing to operate with temporary employees after instituting an otherwise lawful lockout. After a hearing, the administrative law judge concluded that he was bound by the Board’s decision in Inland Trucking Co., 179 N.L.R.B. 350, 72 LRRM 1486 (1969), and found that the Company had violated the above sections by its use of temporary replacements. A majority of the Board disagreed and ordered the complaint dismissed. InterCollegiate Press, 199 N.L.R.B. No. 35 (1972).

While the Sixth Circuit has summarily dealt with this question and the Ninth Circuit referred to it in a different context, the Seventh Circuit is the only court that has previously articulated its views in passing upon this troublesome question. In Inland Trucking Co. v. N.L.R.B., 440 F.2d 562, 565 (7th Cir.), cert, denied, 404 U.S. 858, 92 S.Ct. 106, 30 L.Ed.2d 100 (1971), the Seventh Circuit concluded:

“[T]hat a lockout in the circumstances at bar, accompanied by continued operation with replacement labor, is per se, an interference with protected employee rights, and accordingly, per se, an unfair labor practice under § 158(a)(1).”

If we were to accept this analysis, little more would need be said, for the mere use of temporary replacements would constitute a violation of the Act. However, the Inland opinion is conditioned on the “circumstances at bar,” and the parties read that decision more or less expansively according to their interest. Inland supports the Union’s position, but we do not think it conforms with the Supreme Court’s opinions touching this issue and decide it would be improper for us at this time to adopt a per se rule. To do so would remove the development of the law in this area from the special competence of the Board, which has been proceeding on a case-by-ease basis to adjudicate the impact of hiring temporary replacements during a lawful lockout by balancing the interests of employees and employers and thereby fashioning a national body of labor law under the broad Congressional guidelines set forth in the Act. Before placing this court’s imprimatur on any per se rule, it would seem advisable to heed the admonitions of the Supreme Court in N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963):

“Here, as in other cases, we must recognize the Board’s special function of applying the general provisions of the Act to the complexities of industrial life . . . and of ‘[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases’ from its special understanding of ‘the actualities of industrial relations’. . . . ‘The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.’ ” (citations omitted).

Our role as a reviewing court is to determine whether the Board’s order is supported by substantial evidence on the record as a whole, Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), or has misapplied the law. N.L.R.B. v. Insurance Agents, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). Here the Board has chosen not to promulgate a per se rule, but rather to proceed on an individual case basis giving consideration to the special circumstances of each case. Admittedly, the conduct in question has some effect upon protected employee rights, but we are not prepared to say absolutely that a lockout plus the hiring of temporary replacements is conduct so “inherently destructive” of employee rights to warrant a reviewing court in promulgating a per se rule when the Board itself has chosen not to do so. To the extent that Inland Trucking is interpreted as setting forth a per se rule, it has been criticized by commentators, and to follow that path would seem to ignore the caution raised in American Ship Bldg. v. N.L.R.B., 380 U.S. 300, 337-338, 85 S.Ct. 955, 977, 13 L.Ed.2d 855 (1965) (Goldberg, J., concurring), that “the problem of lockouts requires ‘an evolutionary process,’ not ‘a quick, definitive formula,’ for its answer.” It was also unnecessary to the decision reached in Inland to announce a per se rule, since the court went on to find a lack of any legitimate and substantial business justification for the employer’s conduct, which would warrant a finding of a violation of the Act under the test of N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 18 L.Ed. 2d 1027 (1967).

Since we deem a per se approach inappropriate, we think it important to relate in some detail the facts of this case. The Company prints scholastic year books and graduation announcements at its plant in Mission, Kansas. The Union represents all the full-time and permanent seasonal employees in the cover and bindery departments, and those in the announcement department, who perform paper cutting, finishing, and packaging work. In February, 1967, the Union was recognized as the bargaining representative of the above employees. After seven months of negotiations in 1967 during which a two week strike occurred, agreement was reached between the Union and the Company on a collective bargaining contract that expired August 31, 1970.

Negotiations on a new contract began July 7, 1970. Fourteen bargaining sessions were held after this date until the Company lockout October 16th. It is uncontroverted .that the Company and the Union were at impasse in their negotiations by October 15th, for on that date a federal mediator stated that further bargaining would be “an exercise in futility.” The Company locked out all employees represented by the Union on October 16th, after being informed that morning that the Company’s last contract proposal was unacceptable and the Union had no proposals to make. The last proposal offered provisions somewhat better than those in the expired contract.

The Union had been made aware as early as September 16th that the Company was considering a lockout, but no progress was made on any of the unresolved issues from that date until the ' date of the lockout. The parties and the Board are in agreement that the lockout was entirely legal at its inception. No claim has been made that there was any bad faith on the part of the employer at the time the lockout began. The lockout failed to bring about any fruitful negotiations or agreements and effected no change in the Union’s bargaining position. A substantial backlog of work had accumulated in the areas manned by locked out employees, and a failure to resolve the impasse before the Company’s busy season would have prevented the Company from meeting its delivery schedules. Competitors were contacting Inter-Collegiate’s customers and informing them that there would be late deliveries because of the labor dispute, and these customers were threatening to take their business elsewhere unless the Company could guarantee timely delivery. During the time when the Company’s busy season was approaching, the Company’s salesmen were warning of a substantial loss of customers and good will unless the labor dispute was resolved.

Inter-Collegiate is engaged in a highly seasonal business. It prepares yearbooks and announcements that must be delivered around the time of school graduations in May and June. The Company guarantees delivery of yearbooks 10 weeks after the complete school’s copy is received and delivery of announcements six weeks prior to graduation exercises. Because of this delivery schedule, the Company has a peak period between February and June of each, year, when it operates at over 100% of its plant’s capacity (by use of overtime) and adds approximately 300 seasonal employees to its permanent work force of 200. Approximately 66% of their yearbook volume and 98% of their announcement volume is shipped during this busy season. Any disruption has serious consequences for the Company’s ability to meet its guaranteed delivery schedules. During the previous busy season the Company had been struck by a different union, and this strike disrupted deliveries and caused the cancellation of some contracts. Many customers who did not cancel their contracts after the late deliveries in 1970 had made it quite clear that they would do so if the situation recurred.

The Company believed, we feel with justification, that the Union’s strategy was to continue negotiations, while working without a contract, into the busy season when a strike or threat of a strike would have left the Company with little choice but to meet the Union’s demands. This had been the scenario for the other union’s strike during the last busy season. The Company was justifiably concerned over the state of its business affairs in November, 1970, for it was necessary to begin production to reduce the backlog of work in preparation for its busy season and produce salesman’s samples to aid in the solicitation of new business. If it ended the lockout, there was the very real possibility of a strike during the busy season when it would be too late to hire replacements; it being the Company’s belief that at least two months would be required to train new employees for full production and that it could sustain substantial and permanent damage to its business if the Company failed to meet its delivery dates. The permanent loss of a number of its customers and consequent loss of good will appeared a likely possibility, since its business depended significantly on repetitive patronage.

The Company, therefore, on November 9th, offered to end the lockout if the Union would agree to a no-strike commitment for the coming busy season. The Union made a counter-proposal whereby it would agree to the no-strike commitment if the Company agreed to sign a contract acceptable to the Union by July 1, 1971. No agreement was reached by the parties. Thereafter, on November 23rd, the Company informed the Union that it would begin hiring temporary replacements unless a contract was signed or a no-strike commitment given by November 30. The Union and the employees were informed that the replacements were to be used only for the duration of the labor dispute, and in any event, their employment would not continue past June 21, 1971. The Company did hire replacements beginning November 30, resumed full production December 1, and continued the lockout until June 1, 1971, at which time the Company offered to reinstate all the locked out employees.

The evidence clearly indicates that the employer’s use of the temporary replacements was motivated only by legitimate and substantial business reasons. We have carefully scrutinized the record and can find no indication that the employer’s actions were motivated by any animus or hostility towards the Union or were undertaken to discourage its employees from the exercise of their collective bargaining rights.

The Company’s petition in No. 72-1573 requests us to reverse the Board’s finding that the Union was not on strike after November 9, 1970, the date that the employer conditionally offered to end the lockout. We think the finding of the Board on this issue is supported by substantial evidence on the record as a whole, and it will not be disturbed. As the Board found in favor of Inter-Collegiate on the unfair labor practice issue, this contention is apparently advanced as a means whereby we could avoid adjudication of the temporary replacement question, for if the Union were on strike, subsequent hiring of temporary or permanent replacements would not be violative of the Act.

The Company offered to end the lockout if the Union would oblige with a no-strike pledge during the busy season. The Union countered with a proposal to do so contingent upon the Company agreeing to a contract acceptable by the Union by July 1, 1971. No agreement was reached. The locked out employees were willing since October 19th “to return to their employment on an unconditional basis.” The Company’s offer to end the lockout was not unconditional, and the Board’s finding that the employees were not on strike is supported by substantial evidence on the whole record and must be affirmed by us.

We now turn to an analysis of the lockout with the delayed temporary replacement of employees as presented in No. 72-1749. We note first the argument of the Union that while a “defensive” lockout plus the hiring of temporary replacements may be upheld, citing N.L.R.B. v. Brown, 380 U.S. 278, 85 S. Ct. 980, 13 L.Ed.2d 839 (1965), an “offensive” lockout plus the hiring of temporary replacements is violative of §§ 8(a)(1) and (3) of the Act. We do not think a pro forma application of the labels “offensive” and “defensive” to a .lockout assists in the analysis required to determine the legality of the conduct involved. Board Chairman Miller in his concurrence in this case recognized the limited utility of using labels;

“I am somewhat unsure as to the circumstances under which [a] court would regard a lockout as ‘offensive’ or ‘defensive.’ In fact, I am less sure that any such general labels are of real assistance in carrying out the kind of analysis which the Supreme Court would have us undertake.” 199 N.L.R.B. at-.

Eschewing the use of labels “offensive” or “defensive”, we think the legality of an employer’s conduct in a lockout should be determined by principles set out by the Supreme Court in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. at 34, 87 S.Ct. at 1798:

“First, if it can reasonably be concluded that the employer’s discrimina-
“Characterizing a lockout as ‘defensive’ or ‘offensive’ is a difficult task at best.
* * * * *
“ ‘Moreover, and more important, whatever the determination in a particular case might be, the fact remains that the defensive lockout has its primary significance as an attempt to improve the employer’s bargain. If that proposition be conceded * * * it undermines the basic distinction which the Board has sought to maintain in the lockout context —that is, the distinction between * * * [offensive and defensive lockouts] * * *.’ Meltzer, Lockouts Under the LRMA: New Shadows on an Old Terrain, 28 U.Chi.L. Rev. 614, 621 (1961).” Here it is the company advancing the distinction now apparently disfavored by the Board. tory conduct was ‘inherently destructive’ of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair. labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is ‘comparatively slight,’ an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.”

Great Dane involved a claimed § 8(a)(3) violation. However, N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, 380, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967), indicates that the above principles are applicable in determining whether a § 8(a)(1) violation exists as well. The complaint in this case charges violations of both § 8(a) (1) and § 8(a) (3).

If the employer’s conduct is deemed “inherently destructive,” it will be a violation of the Act under the first test in Great Dane. The phrase “inherently destructive” is not easily susceptible of precise definition. In Radio Officers’ Union v. N.L.R.B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954), the permanent discharge of workers because of participation in collective action was viewed as “inherently destructive.” Erie Resistor Corp. v. N.L.R.B., supra, found a super-seniority plan awarded to those working during a strike to be “inherently destructive.” And dicta in American Ship Bldg. v. N.L.R.B., 380 U.S. at 309, 85 S.Ct. 955, indicates that the Supreme Court would regard the permanent discharge of union members and their replacement with workers possessing violent anti-union animus to be “inherently destructive.” We should not attempt to complete a catalog of actions that might be regarded as “inherently destructive,” but rather must determine whether the conduct in this case should be so viewed. One commentator suggests that “inherently destructive” conduct is that which creates visible and continuing obstacles to the future-exercise of employee rights. The impact of a lockout, as recognized by another commentator, is more likely to be on the union’s bargaining position than on the employees’ allegiance to the union,, at least where there is a history of bargaining relations between the parties.

There has been no showing that the Union’s position as bargaining agent was jeopardized or that it has suffered any diminution in its capacity to effectively represent the employees in the bargaining unit. Although 15 employees did not return to work after the lockout ended, this was apparently because they had found other jobs. There is no indication that any of the union employees who did return has disavowed his union membership. The Board did not find the conduct here to be “inherently destructive,” and we are not inclined to disturb this finding under the circumstances of this case.

The considerations which motivated the Court in N.L.R.B. v. Brown, 380 U. S. at 288-289, 85 S.Ct. 980, to conclude that the use of temporary replacements had a “comparatively slight” effect on employee rights are present here. First, the replacements were expressly hired only for the duration of the labor dispute, and a definite date was given for their termination even if the dispute was not resolved. This was communicated to both the union and the employees. Second, at all times the option was available to the employees to return to work by simply agreeing to the employer’s terms, which were better than those in the old contract. Third, the employer had already agreed to continue in effect the union-security clause from the old contract. Thus, we conclude that the employer’s conduct did not have “unavoidable consequences which he must have intended,” Erie Resistor, supra, 373 U.S. at 228, 83 S.Ct. at 1145, and therefore was not “inherently destructive.”

Conduct having even a “comparatively slight” impact on employee rights may be a violation of § 8(a)(3), unless the employer has established a legitimate and substantial business justification. Great Dane, supra, 388 U.S. at 34, 87 S.Ct. 1792. Here the employer has established a legitimate and substantia] business justification for his conduct, and there is no evidence of any unlawful motivation. We therefore agree with the Board that no § 8(a)(3) violation has been proved.

The Union argues that the conduct here is violative of § 8(a)(1) because of the coercion inherent when the employees are deprived of their income while the company continues to operate. This consideration was of importance to the court in Inland Trucking:

“Such lockout forecloses the employees’ opportunity to earn without surrendering the corresponding opportunity of the employer. It would not merely pit the employer’s ability to withstand a shutdown of its business against the employees’ ability to endure the cessation of their jobs, but would permit the employer to impose on his employees the pressure of being out of work while obtaining for himself the returns of continued operation.”

440 F.2d at 564.

We recognize that there is coercion present when the employer locks out his employees, and it may be magnified when the employer continues operations with temporary employees. The coercion, however, is to force acceptance of the employer’s bargaining proposals, not to deter employees from the exercise of their rights. As recognized in American Ship Bldg., supra, 380 U.S. at 309, 85 S.Ct. at 962:

“Proper analysis of the problem demands that the simple intention to support the employer’s bargaining position as to compensation and the like be distinguished from a hostility to the process of collective bargaining which could suffice to render a lockout unlawful.”

It must be conceded that the use of a lockout in support of a legitimate bargaining position is not inconsistent with the right to bargain collectively or the right to strike. American Ship Bldg., supra at 310, 85 S.Ct. 955. The hiring of temporary replacements does no more than increase the pressure upon the employees to settle the dispute, while perhaps easing the pressure on the employer. Such pressure is surely no greater than that caused by stockpiling and subcontracting, American Ship Bldg., supra at 316, 85 S.Ct. 955, or the shifting of production to other plants during the lockout, Ruberoid Corp., 167 N.L.R.B. 987 (1967), which have been found lawful during a bargaining lockout.

“[T]he use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining. . . . Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them.”

N.L.R.B. v. Insurance Agents, 361 U.S. at 495-496, 80 S.Ct. at 430-431.

The Chamber of Commerce of the United States in an amicus curiae brief filed in this case argues that a lockout is the corollary of the union’s right to strike, citing Morand Bros. Beverage Co. v. N.L.R.B., 190 F.2d 576, 582 (7th Cir. 1953). A lockout could be viewed as the employer’s ultimate economic weapon akin to the worker’s right to strike, but this proposition, even if correct, does not determine the question of the permissible scope of the lockout. The Supreme Court in N.L.R.B. v. Truck Drivers Local Union No. 449, 353 U.S. 87, 93 n. 19, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957), in determining whether a lockout was permissible, found it unnecessary to pass upon whether the lockout is the corollary of the union’s right to strike. In American Ship Bldg., supra, 380 U.S. at 315, 85 S.Ct. 955, in finding a bargaining lockout permissible, the Court indicated that the permissible scope of a lockout is a question ultimately resolved by an analysis of §§ 8(a)(1) and (3).

Neither the Board nor the courts should sit as arbiters of the permissible economic weapons available to the parties in a labor dispute. Instead, the Board’s function in carrying out the policy of the Act must be to determine whether the conduct engaged in violates any provision of the Act. Here, since no anti-union animus or hostile motivation has been shown and the employer has established a legitimate and substantial business justification, we agree with the Board that there is no § 8(a)(1) violation merely because the Company may have increased the economic pressure on the Union by continued operation with temporary replacements. To find otherwise would be taking upon ourselves a general authority to assess the bargaining power of the parties to a dispute and to attempt to redress what we might perceive to be a relative imbalance in bargaining power by finding a violation of § 8(a)(1). Such a method of decision has been denied even to the Board. American Ship Bldg., 380 U.S. at 317, 85 S.Ct. 955. The balancing of bargaining power denied to the Board must be contrasted with the Board’s authority to balance “conflicting legitimate interests.” Erie Resistor, supra, 373 U.S. at 236, 83 S.Ct. 1139. This is what the Board has done in this case.

Finding no violation of §§ 8(a)(1) or (3) in the facts of this case, we affirm the Board’s dismissal of the complaint.

      . This question was expressly left open by the Supreme Court in American Ship Bldg, v. N. L. R. B., 380 U.S. 300, 308 n. 8, 85 S.Ct. 955, 962, 13 L.Ed.2d 855 (1965) :
      “[W]e intimate no view whatever as to the consequences which would follow had the employer replaced its employees with permanent replacements or even temporary help.”

      . Petitions for review of the order of the NLRB were filed by Inter-Collegiate Press, Graphic Arts Division-Sargent Welch Scientific Company and Sargent Welch (hereinafter referred to in the singular as Company) and the Bookbinders Local No. 60, International Brotherhood of Bookbinders, AEL-CIO. The Union’s petition was originally filed in the 7th Circuit and transferred by that Court to the 8th Circuit. The petitions were consolidated by us for hearing. Jurisdiction is established under § 10(f) of the NLRA, as amended, 29 U.S.C. § 160(f). Briefs amicus curiae were filed by the Chamber of Commerce of the United States urging affirmance and the International Union urging reversal.

      . Note, Lockouts — Employers’ Lockout with Temporary Replacements is an Unfair Labor Practice, 85 Harv.L.Rev. 680, 683-85 (1972); Note, An Offensive Lockout Accompanied by Continuous Operations with Temporary Replacement Labor is Per Se an Unfair Labor Practice, 50 Tex.L.Rev. 552, 556-58 (1972).

      . See also Lane v. N. L. R. B., 135 U.S. App.D.C. 372, 418 F.2d 1208, 1209-1210 (1969), which indicates that the Supreme Court has suggested a modification of the approach in this area towards a balancing of the competing interests of labor and management.

      . Other unions represent various other units of the Company’s overall operations.

      . Dates hereafter are in 1970 unless otherwise indicated.

      . Lockouts have survived a tumultuous history. Prior to 1965 and the Supreme Court decisions in N. L. R. B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) and. American Ship Bldg. v. N. L. R. B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), the use of the lockout had been restricted by the Board to certain carefully defined circumstances. Lockouts to preserve the integrity of a multi-employer bargaining unit in the face of a “whipsaw” strike had first been found unlawful, see Continental Baking Co., 104 N.L.R.B. 99 (1953), enforcement denied, 221 F.2d 427 (8th Cir. 1955); the Board then changed its view and upheld lockouts in these circumstances as reasonable defensive measures. Buffalo Linen Supply Co., 109 N.L.R.B. 447 (1954), aff’d sub nom., N. L. R. B. v. Truck Drivers Local Union No. 449, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957). However, it was unwilling to extend its holding to allow the use of temporary replacements to continue operations on the part of non-struck employers even if the struck member of the multi-employer group was operating with replacements. Brown Food Store, 137 N. L. R. B. 73 (1962). The Supreme Court’s decision in N. L. R. B. v. Brown, supra, reversed the Board and settled the propriety of the use of temporary replacements to continue operations in these circumstances.
      In cases involving single employers, the Board had evolved a rule that lockouts were only justifiable to safeguard against unusual operational problems or hazards, or economic loss if there were reasonable grounds for believing that a strike was threatened or imminent. American Brake Shoe Co., 116 N.L.R.B. 820, enforcement denied, 244 F.2d 489 (7th Cir. 1957); Betts Cadillac Olds, Inc., 96 N.L.R.B. 268 (1951); International Shoe Co., 93 N.L.R.B. 907 (1951).; Duluth Bottling Assoc., 48 N.L.R.B. 1335. (1943). The mere desire to support a legitimate bargaining position was not viewed as a sufficient justification for the use of a lockout. Quaker State Oil Refining Corp., 121 N.L.R.B. 334 (1958); American Ship Bldg., 142 N.L.R.B. 1362 (1963). The Supreme Court reversal of the Board’s American Ship decision made clear that a lockout in support of a legitimate bargaining position, at least after impasse, is valid. See, Note, The Unanswered Questions of American Ship, 64 Mich.L.Rev. 910 (1966), which suggests a pre-impasse lockout would be unlawful; but see N. L. R. B. v. Dalton Brick & Tile Corp., 301 F.2d 886 (5th Cir. 1962); Lane v. N. L. R. B., 135 U.S.App.D.C. 372, 418 F.2d, 1208 (1960), which upheld the use of a pre-impasse lockout in support of a legitimate bargaining position.
      The foregoing brief survey of decisions prior to Brown, and American Ship illustrates both the complexity of the problem of lockouts in cases presented to the Board and the courts, and the importance of the Brown and American Ship decisions in the analysis of the problem presented to us for decision.

      . As was stated in Laclede Gas Co. v. N. L. R. B., 421 F.2d 610, 615 n. 11 (8th Cir. 1970):

      . Section 8(a) of the NLRA, 29 U.S.C. § 158(a) provides:
      “158. Unfair labor practices “(a) It shall be an unfair labor practice for an employer—
      “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      * * * * *
      “(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .”

      . Note, 85 Harv.L.Rev., supra at 686.

      . Getman, Section 8(a)(3) of the NLRA and the Effort to Insulate Free Employee Choice, 32 U.Chi.L.Rev. 735, 751 (1951).

      . Although the effective date would be deferred until Kansas law approved of such agreements, this indicates to some extent the employer’s recognition of the union as an economic fact of life and further supports the conclusion that no anti-union animus was present here.

      . We note in passing that the returns of continued operation with temporary employees may not be such as to lead most employers to take such a step. There was evidence in this case that Inter-Collegiate lost approximately $120,000 as a direct result of using temporary employees. In addition, replacements for highly skilled jobs may be hard to locate, or the cost of training replacements merely for the duration of a labor dispute may be prohibitively high. In view of the above and the fact that the employer will have to prove legitimate and substantial business justification for his conduct, it is unlikely an employer would hire temporary replacements during an otherwise lawful lockout unless motivated by business exigencies. See Note, 50 Tex.L.Rev., supra at 555; Note, 85 Harv.L.Rev., supra at 684.


source: Caselaw Access Project

author: SPRECHER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold A. GOODMAN, Sr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. STREGE & ROUSAR FISH COMPANY et al., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond S. STREGE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert E. STREGE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. G AND M FISHERIES et al., Defendant-Appellant.
    No. 73-1008.
    United States Court of Appeals, Seventh Circuit.
    Argued June 13, 1973.
    Decided Sept. 28, 1973.

      Adrian P. Schoone, Racine, Wis., for defendants-appellants.
    Gregory B. Hovendon, Chief, Consumer Affairs Section, U. S. Dept, of Justice, Washington, D.C., David J. Cannon, U. S. Atty., Milwaukee, Wis., Charles J. Raubicheek, Washington, D.C., for plaintiff-appellee.
    Before FAIRCHILD and SPRECHER, Circuit Judges, and GRANT, Senior District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   SPRECHER, Circuit Judge.

This appeal presents the problem of whether the Administrator of the Environmental Protection Agency (EPA) must establish by regulation permissible tolerances of DDT and its derivatives in fish before injunctive relief may be granted or whether instead the Secretary of the Department of Health, Education and Welfare (HEW) may enforce an interim enforcement guideline issued by the Food and Drug Administration (FDA) establishing a maximum amount of 5 parts per million of DDT residue in fish shipped in interstate commerce.

I

The federal government regulates the use of pesticides through three statutes, two of which are the Federal Food, Drug, and Cosmetic Act (FDCA), administered by the Secretary of HEW, and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), originally administered by the Secretary of Agriculture.

Pursuant to Reorganization Plan No. 3 of 1970, effective December 2, 1970, EPA was established and there was transferred to it (1) the functions vested in the Secretary of HEW “of establishing tolerances for pesticide chemicals” under FDCA, together with authority “to monitor compliance with the tolerances and the effectiveness of surveillance and enforcement” and (2) the functions vested in the Secretary of Agriculture under FIFRA.

However, the Secretary of HEW continues to administer FDCA except for EPA’s establishing of tolerances for pesticide chemicals, and inasmuch as EPA only “monitor (s) compliance,” the Secretary of HEW continues to enforce compliance. The FDA has acted as the delegate of the Secretary of HEW in enforcing the pesticide tolerances promulgated by EPA.

The Federal Environmental Pesticide Control Act of 1972, providing for “the more complete regulation of pesticides in order to provide for the protection of man and his environment and the enhancement of the beauty of the world around him,” invested EPA with power to prohibit misuse of a registered pesticide in addition to the existing powers of registering certain pesticides and prohibiting interstate commerce in unregistered pesticides. EPA has thus become the Congressionally designated expert on pesticides.

In passing the 1972 Act, Congress noted:

“While appropriate pesticides properly used are essential to man and his environment, many constitute poisons that are too dangerous to be used for any purpose. Others are dangerous unless used extremely carefully, and some may have long lasting adverse effects on the environment. Some may be taken up in the food chain and accumulated in men and other animals. . . . Pesticides therefore have important environmental effects, both beneficial and deleterious. Their wise control based on a careful balancing of benefit versus risk to determine what is best for man is essential.”

II

Upon the complaints of the United States, the district court in this case, at the conclusion of a trial without a jury, entered findings and conclusions and permanently enjoined five distributors of fish known as raw chubs from distributing in interstate commerce such fish in which the total amount of DDT and its derivatives exceeds the interim limit of 5 parts per million. This limit was established by the FDA for all fish pursuant to an announcement to the public on April 22, 1969. United States v. Goodman, 358 F.Supp. 250 (E.D.Wis. 1972).

The district courts of the United States have jurisdiction, for cause shown, to restrain violations of section 331 of the Food, Drug and Cosmetic Act (21 U.S.C. § 332(a)). Among other prohibited acts, section 331(a) prohibits the “introduction or delivery for introduction into interstate commerce of any food . . . that is adulterated .” Section 402 of FDCA provides in part that:

“A food shall be deemed to be adulterated—
“(a) ... (2) ... (B) if it is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of section 346a(a) of this title .. . .”

21 U.S.C. § 342(a)(2)(B).

The parties stipulated that raw chubs are food, that raw chubs are raw agricultural commodities, that DDT and its derivatives are pesticide chemicals and that the defendants have repeatedly shipped foods containing an excess of 5 parts per million of DDT.

A pesticide chemical is deemed “unsafe” by FDCA as follows:

“(a) Any poisonous or deleterious pesticide chemical which is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety of pesticide chemicals, as safe for use, added to a raw agricultural commodity, shall be deemed unsafe for the purposes of the application of clause (2) of section 342(a) of this title unless—
“(1) a tolerance . . . has been prescribed [by regulations promulgated] by the Administrator of the Environmental Protection Agency under this section and the quantity of such pesticide chemical in or on the' raw agricultural commodity is within the limits of the tolerance so prescribed; or
(2) . . . the pesticide chemical has been exempted from the requirement of a tolerance [by regulations promulgated] by the Administrator under this section.”

21 U.S.C. § 346a(a). The parties stipulated that there is neither a regulation nor an exemption covering the situation at issue. It was further stipulated that the granting of injunctions in this case would have an adverse effect on substantial property rights of all of the defendants.

“The term ‘raw agricultural commodity’ means any food in its raw or natural state . . . ."

The issue which remained to be resolved at the trial was, did the raw chubs distributed by the five defendants contain a poisonous or deleterious pesticide chemical which is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety of pesticide chemicals, as safe for use ?

III

The pesticide DDT is a chloride napthalene compound discovered in the late nineteenth century and first introduced in the United States about 1942 as the result of the seizure during World War II of some powder that was being used by the German army in North Africa as lice powder.

It thereafter became “one of the most widely used chemicals to control various insect populations and to protect agricultural crops from destruction by insects” but “[r]ecent scientific studies have . raised serious questions about the effect on the environment and on human health of the continued use of DDT.” Environmental Defense Fund, Inc. v. United States Department of HEW, 138 U.S.App.D.C. 381, 428 F.2d 1083, 1085 (1970).

On April 22, 1969, the FDA issued in the form of a public press release a “guideline” establishing 5 parts per million as the maximum amount of DDT permissible in fish shipped in interstate commerce. In part the release stated:

“The interim limit has been established primarily because of high residues of DDT and its derivatives found in coho salmon from Lake Michigan.
“This guideline is intended to protect the public from excessive levels of DDT in fish while a full scientific review is completed, Food and Drug Commissioner Herbert L. Ley, Jr., M. D. explained. It also gives the fishing industry a specific standard. Fish carrying residues higher than 5 ppm will be subject to seizure.
“The F.D.A. has asked the National Academy of Sciences — National Research Council to nominate a panel of experts to carry out the review of DDT residues in fish. The 5 ppm interim limit may be changed as the result of that study, Dr. Ley said.”

A summary of the evidence in the district court is as follows:

Dr. Frederick Coulston is the Director of the Institute of Experimental Pathology and Toxicology at Albany Medical College, Alamagordo, New Mexico. The Institute was established in 1963 for the sole purpose of studying the safety of chemicals, drugs, and food additives, including pesticides. Dr. Coulston has B. A., M.A. and Ph.D. degrees. He is a professor of pathology, pharmacology and toxicology, a member or fellow of 12 professional societies, the author of 80 articles in professional journals, and active in a host of professional endeavors for organizations such as the World Health Organization and the National Academy of Sciences.

Dr. Coulston testified that he was a member and eventually the chairman of the Joint FAO/WHO (Food and Agriculture Organization and World Health Organization of the United Nations) Expert Committee which decided in 1969 that DDT should be phased out as harmful to animals and plants in the biosphere; that in his opinion as an expert DDT in excess of 5 parts per million in raw chubs is not generally recognized as safe; and that he knows of no evidence nor scientific literature that would indicate that it is generally recognized as safe in such amounts.

Upon cross-examination, he testified that he could not distinguish as to what level might be considered safe, since “[i]f I have five parts [per million] of a piece of fish and something creeps in from something else and something else, eventually the body burden gets very great . . . . ”

Dr. Oscar Garth Fitzhugh is a toxicological consultant for the Environmental Protection Agency with B.S., M.S. and Ph.D degrees. He has taught pharmacology and physiology, is a member or fellow of five professional societies, the author of 112 articles on toxicology in professional journals, and the recipient of 7 awards in the fields of pesticides, toxicology and health. Dr. Fitzhugh has been a member of the World Health Organization Expert Committees on Food Additives and on Pesticides Residues, and the United States delegate on both the Codex Committee on Food Additives and on Pesticide Residues.

Dr. Fitzhugh testified that a toxicologist determines the safety of various materials; that his special purpose has been to establish the safety of materials primarily in food; that from 1939 to 1964 he was in direct supervision of the Food and Drug Administration laboratory on chronic toxicity and beginning in 1942 the laboratory was concerned with the toxicity of DDT; that studies show that DDT has a marked effect on the central nervous system of animals; that if doses are high enough, animals show extreme nervousness, coma and then death; that the central cells of the liver degenerate resulting in death from liver damage; and that other studies show that DDT is toxicant.

Dr. Fitzhugh further testified that the Joint FAO/WHO Expert Committee on Pesticide Residues established in 1965 that the “acceptable daily intake” of DDT for human beings is .01 milligrams per kilogram of body weight per day. An average person weighs about 70 kilograms or 150 pounds so that the average safe intake is 0.7 milligrams per day. If a person eats a hundred grams of fish a day (approximately a quarter of a pound) containing 5 parts per million of DDT, he will consume 0.5 milligrams per day of DDT.

In 1969, the World Health Organization changed the acceptable daily intake to one-half of the original level or to .005 milligrams per kilogram of body weight per day.

Dr. Fitzhugh further testified that in his opinion, as an expert, DDT in excess of 5 parts per million in raw chubs is not generally recognized as safe; that he knows of no scientific literature that would indicate it is generally recognized as safe in such amounts; and that such amounts are not recognized by experts to be safe for human consumption.

Upon cross-examination, he testified that there is a trace of DDT in all foods; that there is a feeling among toxicologists that DDT is unsafe because it probably causes cancer; and that the 5 parts per million interim tolerance guideline was established on April 22, 1969 and was announced to the public through a press release.

Mr. Leon D. Sawyer is the Pesticide Analytical Specialist for the Minneapolis District of the Food and Drug Administration. He received his B.S. degree in chemistry and did graduate work in pesticide analytical methodology at Georgetown University. He has been a chemist with FDA since 1964. He recently presented a paper on pesticide analysis at the Association of Official Analytical Chemists.

Mr. Sawyer testified that as part of his official responsibilities, he has analyzed virtually all types of foods; that at the normal screening level, he looks for DDT in foods at one-hundredth of one part per million; that DDT is not present above this level in all foods; and that no food other than fish has ever approached 5 parts per million in all of his laboratory studies of food samples.

Mr. Sawyer further testified that his headquarters of FDA began a survey of DDT levels in Lake Michigan chubs in May, 1971 which continued to July 1, 1972; that 61 samples of chubs were taken from different locations in Lake Michigan and analyzed; that 54 samples showed well over 5 parts per million of DDT; and that samples along the western shore of the lake were predominately over the 5 parts whereas those taken from the northeastern area of the lake were under 5 parts. The yearly average of DDT content in Chubs taken from five areas along the western shore were 6.00, 6.03, 6.98, 7.13 and 7.41 parts per million. Chubs taken from the northeastern area of the lake averaged 3.66 parts per million.

Upon cross-examination, Mr. Sawyer testified that from 1964 through 1970, he analyzed “a fairly good cross section of all types of foods sold in the United States . . . out of the super market”; and he confirmed that of these only fish tested out with DDT in excess of 5 parts per million.

The defendants called one witness, Mr. Francis B. Coon, who is a chemist employed as the head of the chemistry department of WARF Institute, Inc. He has a B.S. degree in food chemistry. WARF is a commercial testing laboratory offering services in food nutrition toxicology to clients for a fee.

Mr. Coon testified that WARF has run in excess of 40,000 tests for DDT and its derivatives from about 1952 to date; that they ordinarily use a screening level for DDT of .002 parts per million as opposed to Mr. Sawyer’s level of .01 parts per million; that there have been cases where DDT residue has not been found in that amount; that such result occurs in a tenth of their samples; that WARF has run several hundred tests for DDT in raw fish from Lake Michigan and all fish tests have shown the presence of DDT since 1958.

Mr. Coon further testified that in his opinion the DDT in Lake Michigan comes from run-off, air deposits, spillage and dumping of residues and chemicals into the lake; that the residue attaches to small plant and animal life, which is eaten by larger forms and so on up the chain until fish eat the tainted form; and that as the matter moves up from one form of life to another, the level of DDT increases so that when it reaches fish the level is rather high.

He testified that in his experience the level of DDT in food is declining but that most food samples do contain some level of DDT.

On cross-examination, Mr. Coon testified that although he said that a tenth of WARF’s samples do not indicate the presence of DDT, the WARF method of testing does not assure accuracy at that level; that WARF’s tests on Lake Michigan chubs showed the presence of DDT in excess of 5 parts per million in over 50% of the samples; that in his reading he found no references to a general recognition of safety at that level in chubs or in fish generally.

As a result of this evidence,' the district court found that “DDT is not generally recognized, among experts qualified by scientific training and experience to evaluate ¿the safety of pesticide chemicals, to be safe at levels in excess of five ppm in fish for human consumption.”

The court concluded that raw chubs containing DDT in excess of 5 parts per million are an adulterated food under 21 U.S.C. § 342(a)(2)(B), that the introduction or delivery for introduction into interstate commerce of such chubs is in violation of § 331(a), and such introduction or delivery is subject to restraint pursuant to § 332 (a).

The court added (353 F.Supp. 250, 251):

“At the conclusion of the trial, I indicated that I was satisfied of the plaintiff’s entitlement to judgment with but one reservation: I wanted to consider further the defendants’ contention that 21 U.S.C. § 346a(b) made it mandatory for the administrator to promulgate the regulations establishing tolerances. I have now concluded that the defendants’ interpretation is incorrect.
* -X- -X- * -X- -X
“Although the provisions of subsection (b) would seem, facially, to suggest a duty to promulgate regulations that contain tolerances, I am persuaded that the total statutory scheme contemplates a judicial obligation to enjoin the distribution of unsafe foods even in the absence of a formally promulgated regulation.”

IV

The only issue upon appeal is whether Section 346a of FDCA makes it mandatory for EPA to promulgate regulations establishing tolerances.

Both the government and the defendants relied upon the language of Section 346a which provides in part that the “Administrator shall promulgate regulations establishing tolerances with respect to the use . of . pesticide chemicals which are not generally recognized among experts . as safe for use ... to the extent necessary to protect the public health.” 21 U.S.C. § 346a(b). Section 346a(c) provides in part that the “Administrator shall promulgate regulations exempting any pesticide chemical from the necessity of. a tolerance . . . when such a tolerance is not necessary to protect the public health.”

The defendants contended that the use of the word “shall” establishes the mandatory requirement of regulations either (1) to set a tolerance at some level, (2) to exempt a particular pesticide from the necessity of any tolerance, or (3) as further provided in Section 346a(b) to “establish the tolerance ... at zero level if the scientific data before the Administrator does not justify the establishment of a greater tolerance.” They argued that a permanent injunction issued pursuant to standards promulgated by an “interim guideline” denied them the review procedures of 21 U.S.C. § 346a(d) (5) and § 346a(e).

The government on the other hand contended that the Administrator is to promulgate regulations “to the extent necessary to protect the public health” and that in the present situation that necessity has not occurred. The government further contended that the EPA Administrator “may” issue regulations and that the defendants, who argued that they were entitled to the protection of the procedural requirements preceding the promulgation of a regulation, could “trigger” those requirements by requesting that the Administrator act, which they failed to do.

Before evaluating the respective arguments regarding the interpretation of FDCA, it is pertinent to note the reasons why EPA, the expert agency regarding pesticides, has not up to this time promulgated any regulations establishing tolerances or exemptions for DDT.

EPA has recently banned almost all agricultural uses of DDT, effective December 31, 1972. 37 Fed.Reg. 13369 (July 7, 1972). This decision represented the culmination of almost three years of intensive administrative inquiry which resulted in the conclusion that the long-range risk of DDT at the present total volume of use is unacceptable and that DDT presents a carcinogenic risk. 37 Fed.Reg. at 13375. Among the factors which the Administrator is required to consider when he does set a tolerance is “the other ways in which the consumer may be affected by the same pesticide chemical.” 21 U.S.C. § 346a(b)(2). Because the degree of human exposure to DDT from sources other than fish will undoubtedly soon change, an in-depth consideration of DDT tolerances during this period of fluctuation would be virtually meaningless.

Also there was evidence presented at the trial that there are several significant studies currently being conducted by the World Health Organization of the United Nations to determine the probable cancer-causing effects of DDT. It is prudent to wait for at least some of these studies before setting definitive tolerances for DDT in raw foods.

Under the defendants’ interpretation of FDCA, the EPA is not given any flexibility with regard to the timing of establishing tolerances or exemptions. The EPA must proceed according to the requirements of 21 U.S.C. § 346a(b)-(c) before HEW is able to exercise any control over the introduction into interstate commerce of commodities containing unsafe pesticide chemicals. This interpretation renders 21 U.S.C. § 346a(a) meaningless. This section clearly provides that a pesticide chemical which is not generally recognized as safe for use, added to a raw agricultural commodity, shall be deemed unsafe unless EPA has established a tolerance or provided for exemption. Only in the absence of such action by the EPA is this section activated.

The defendants contend that this construction denies them the review procedures of Section 346a(d), but (d) applies only to persons who have registered an economic poison under FIFRA. The defendants, who could hardly have been unaware of the growing national concern over DDT content in fish, could have triggered the rule making procedure under 21 U.S.C. § 346a(e) if they had but requested it.

The language of Section 346a (b) provides for promulgation of regulations establishing tolerances “to the extent necessary to protect the public health.” EPA has determined that a regulation for DDT in raw fish is not necessary at this time. In fact, they have refrained from promulgating such a regulation because DDT levels in the environment are in a state of flux, a state partially induced by their other control activities concerning DDT.

In the absence of a tolerance or exemption, the Secretary of HEW is charged with the enforcement of the ban of interstate shipment of adulterated agricultural commodities. 21 U.S.C. § 331(a). Although the cancer aspects of DDT are frightening, the obvious solution to that problem, that is, a total ban on foods containing DDT, is not available. Virtually, every food contains some DOT. The Administrator is required by Section 346a(b)(1) to consider “the necessity for the production of an adequate, wholesome and economical food supply . . . .’’in setting tolerances. DDT has presented, and apparently will continue to present, a massive dilemma both for EPA and for society. Since there is no tolerance or exemption for DDT in fish, any amount of this poisonous pesticide chemical must be deemed unsafe and result in an adulterated product under a literal interpretation of the statute. Yet is obvious that at the present time all fish can not be banned inasmuch as it would seriously affect the total food supply.

In considering the parallel problem posed by Section 342(a)(3), defining an adulterated food as consisting in whole or in part of any filthy, putrid, or decomposed substance, we early said in United States v. 1,500 Cases, 236 F.2d 208, 210-211 (7th Cir. 1956):

“It sets a standard that if strictly enforced, would ban all processed foods from interstate commerce. A scientist with a microscope could find filthy, putrid and decomposed substances in almost any canned food we eat.”

After quoting from our opinion, the Court of Appeals for the Fifth Circuit recently concluded in United States v. 484 Bags, 423 F.2d 839, 841 (5th Cir. 1970):

“Unjustifiably harsh consequences of a completely literal enforcement are tempered by discretion given the Secretary (now the Secretary of Health, Education and Welfare). He is allowed to adopt administrative working tolerances for violations of which he will prosecute. 21 U.S.C. § 336; United States v. 449 Cases, Etc., 212 F.2d 567 (2d Cir. 1954); Dean Rubber Manufacturing Company v. United States, 356 F.2d 161 (8th Cir. 1966). The courts may accept the administrative tolerance as a proper judicial measure of compliance with the Act. United States v. 1500 Cases, More or Less, Etc., 236 F.2d 208 (7th Cir. 1956); United States v. 935 Cases, Etc., 65 F.Supp. 503, 505 (N.D.Ohio 1946).”

The defendants now contend that although the Commissioner of Food and Drugs has the undoubted authority to prohibit the distribution of all fish with any DDT residue, they are harmed because he has given them the opportunity to continue to operate if they can distribute fish with 5 or less parts per million of DDT residue. This action is consistent with specific statutory authority in the Act empowering him to refrain from prosecuting minor violations. 21 U.S.C. § 336 (see n. 18, supra) .

We conclude that the Commissioner of Food and Drugs, as the delegate of the Secretary of HEW, had the authority under FDCA to abide by the interim guidelines, that in so doing his acts were not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or without observance of procedure required by law, and that the district court’s findings are not clearly erroneous.

The judgments of the district court in the five cases are affirmed.

Affirmed.

      . 21 U.S.C. § 301 et seq.

      . 7 U.S.C. § 135 et seq.

      . 5 U.S.C. Appendix at 609 (1970).

      . Section 2(4), 5 U.S.C. Appendix at 610 (1970).

      . Section 2(8) (i), 5 U.S.C. Appendix at 610 (1970).

      . According to Webster’s Third New International Dictionary, “monitor” means primarily to “check.”

      . Pub.L. 92-516, 86 Stat. 975, 7 U.S.C. § 136 et seq. (Supp. II 1972) (effective October 21, 1972).

      . S.Rep.No.92-838, 92nd Cong., 2d Sess., 3 U.S.Code Cong. & Ad.News 3995 (1972).

      . S.Rep.No.92-838, 3 U.S.Code Cong. & Ad. News 3996 (1972).

      . A sixth defendant was also tried and permanently enjoined in District Court No. 71-C-158 but since that defendant, Ewig Bros. Co., Inc., distributed smoked chubs instead of raw chubs, which raises different issues, we have this day entered an order holding that appeal for decision with the pending appeal from United States v. Vita Pood Products of Illinois, Inc., 356 P.Supp. 1213 (N. D.Ill.1973), which also involves smoked chubs.

      . 21 U.S.C. § 321(r) provides in part:

      . DDT is an abbreviation for dichloro-di-phenyl-trichloroethane.
      The pesticide controversy is chronicled in Carson, Silent Spring (1962) ; Rudd, Pesticides and the Living Landscape (1964) ; Mellanby, Pesticides and Pollution (1967) ; Graham, Since Silent Spring (1970).

      . See United States v. Vita Food Products of Illinois, Inc., 356 F.Supp. 1213, 1216 (N. D.Ill.1973).

      . Section 346a (e) provides in relevant part that the “Administrator may at any time, upon Ms own initiative or upon the request of any interested person, propose the issuance of a regulation establishing a tolerance for a pesticide chemical or exempting it from the necessity of a tolerance. . . .” 21 U.S.C. § 346a(e) (emphasis added).

      . Tending to produce cancer.

      . Congress has indicated its concern for this problem as related to food additives, providing that “no additive shall be deemed to be safe if it is found to induce cancer when ingested by man or animal . . . 21 U.S.C. § 348(c)(3)(A).

      . “21 C.F.R. §§ 120.147 to 120.147c (1969). DDT tolerances range from 50 parts per million in or on peppermint hay and spearmint hay which are not to be used for feeding livestock down to one part per million on artichokes, asparagus and other foods, and down to 0.05 part per million in milk.” Environmental Defense Fund, Inc. v. United States Dep’t HEW, 138 U.S.App.D.C. 381, 428 F.2d 1083, 1090, n. 16 (1970).

      . Section 336 provides that “[n]othing in this chapter shall be construed as requiring the Secretary to report for ... injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served by a suitable written notice or warning.” 21 U.S.C. § 336.


author: TALBOT SMITH, Senior District Judge.

text:
    Mike MADRID, Administrator of the Estate of Ted McDonald, Deceased, Plaintiff-Appellant, v. MINE SAFETY APPLIANCE COMPANY, a corporation, and Texaco, Inc., a corporation, Defendants-Appellees.
    No. 73-1302.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 13, 1973.
    Decided Oct. 25, 1973.

      Benjamin S. Eastburn, Farmington, N. M., for plaintiff-appellant.
    John P. Cusack, Roswell, N. M., for defendant-appellee Mine Safety Appliance Co.
    White & Catón, Farmington, N. M., for defendant-appellee Texaco, Inc.
    Before BREITENSTEIN, Senior Circuit Judge, DOYLE, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The appeal before us relates to the tort liability of the Mine Safety Appli-anee Company (hereafter Mine Safety) and Texaco, Inc., arising out of the death of appellant’s decedent, Ted McDonald. Mr. McDonald was, at the time of his death, an employee of the National Tank Company. The case was tried to the Court, without a jury, following which the Court entered exhaustive findings of fact and conclusions of law in favor of the defendants.

Mr. McDonald and his immediate superior, Walter Rector, were sent by National Tank to install flanges on tanks owned by Texaco and located in an oil field on the Navajo reservation in southeastern Utah. They first" worked on Tank 17. After completing work on this tank they moved on to Tank 15. Late in the evening the decedent’s body with a gas mask in place was found at the base of the ladder in the tank, with Rector’s body on top. With respect both to Mine Safety and Texaco certain theories are asserted under which appellant seeks to establish liability in damages arising out of the death. These will be discussed in detail as the points made are considered.

The mask worn by the decedent bore the following warning: “This canister protects only against hydrogen sulfide gas, petroleum vapors and dust mist and fogs that are not significantly more toxic than lead. This canister must not be used where the oxygen content is less than 16%.” Appellant argues that the cause of death was not a lack of oxygen, warned against, but was due to petroleum vapors. He points to the position of the bodies and excerpts from the testimony of Dr. Schoenfeld, a toxicologist (not a medical doctor) and theorizes therefrom that death was due to petroleum vapors, and that had it been due to lack of oxygen “he would have had sufficient time to descend the ladder and at least start in the direction of the four inch hole.” Appellee Mine Safety speculates that the same physical facts are consistent with a lack of oxygen. Dr. Schoenfeld testified that he tested Tank Battery No. 16 almost a year later and found that it was saturated with petroleum vapor in an amount from between fifty-eight percent and ninety-five percent, which is sufficient, he said, to cause death either from lack of oxygen or fumes.

There is no medical testimony as to the cause of death. No autopsy was done. No physical facts are conclusive. The trial court found that “The medical cause of decedent’s death is not established,” a conclusion seeming to us inescapable upon the record made. It is hardly necessary to stress, though the observation should be made since we are called upon in this entire case to review numerous findings of fact made by the trier of the facts, that under New Mexico law, as generally, “the facts are to be viewed in the aspect most favorable to the prevailing party” and the appellate court is to “indulge all reasonable inferences in support of the verdicts, disregarding all inferences or evidence to the contrary. It is for the jury, not us, ‘[to] weigh the testimony, determine the credibility of witnesses, reconcile inconsistent or contradictory statements of a witness, and say where the truth lies.’ ”

We have noted that the decedent was found at the foot of the ladder in the tank wearing a mask. The appellant argues that the mask was improperly la-belled in that its warnings were “physically insignificant,” that its terms were not readily understandable to the average user, and that they failed to advise of the peril if improperly used.

The appellant relies principally upon the case of Spruill v. Boyle-Midway, Incorp., 308 F.2d 79 (4th Cir. 1962) for the proposition that a supplier or manufacturer must “be expected to anticipate the environment which is normal for the use of his product,” arguing therefrom that since a “hot” tank contains gases, and the product before us is a gas mask, therefore the appellant’s decedent was justified in assuming that the gas mask in evidence was intended for use in the environment under consideration and the label (if, indeed, he read it and understood it) did not warn him to the contrary.

Appellee Mine Safety challenges the syllogism thus argued in many particulars but the principle difficulty, indeed, the insurmountable obstacle against its acceptance by this court, lies with the facts found below. First, as to the physical situation presented, the appellant’s decedent was not a stranger to the oil fields. He had previously worked around such fields, crude oil storage tanks, and oil field equipment for two summers and had been a full time employee since the October preceding his death. He knew, or should have known, of the danger, that is, not to enter a “hot” tank when the basic sediment or clean-out plate was still in place without first removing a stave and letting the tank air out. He had been instructed on the proper procedure for installing flanges both on March 4 and March 5 and had, with his supervisor, successfully installed a flange on Tank 17, by following the proper procedure, on the same morning before working on Tank 15. When he entered Tank 15 from the vent hatch located at the top of the tank he did so in violation of instructions by the National Tank Company.

The mask he wore was not suitable for use under the conditions in which he attempted to use it but it was not furnished to him for such purpose. There was testimony that “it was just a paint mask . . . .We done a lot of spray painting.” The instructions given him, for the accomplishment of his assigned work did not include the use of the mask, since the mask was sold to his employer and used by it for purposes other than entry into “hot” tanks. There was no testimony that the mask had malfunctioned or failed to function in any way. It was simply not the type of mask to use for such purpose.

It is at this point that the appellant seeks to use the warning doctrine, asserting that the label on the mask was inadequate, that it did not give proper warning that “this was not the proper mask for the conditions he encountered.” What these “conditions” (meaning, apparently, the kinds and concentrations of gases) were, the record does not disclose. But, whatever they were, it was the finding of the trial court that the decedent knew of the danger presented, and that it was not hidden or obscure. There is testimony in the record that in a “hot” tank, without removal of the bottom sediment plate, there is a lack of oxygen in the tank, and it was found as a fact that “decedent knew or should have known not to enter a ‘hot’ tank when the basic sediment or clean-out plate was still in place without first removing a stave and letting the tank air out . . . .” The oxygen problem was specifically adverted to on the canister’s label, it stating that “This canister must not be used where the oxygen content is less than 16%.” In view of the findings herein summarized the trial court held that “The lable on the canister gave no indication that the mask could be used safely under the conditions which existed and which decedent knew, or by reasonable inquiry should have known existed in Tank 15.” We agree. In the dangerous situation presented, known to the employee, reliance may not properly be placed on a mask without some reasonable indication thereon of safety to be attained from its use. Such holding precludes not only liability for negligent failure to warn, but also the application of the doctrine of strict liability (if otherwise applicable) based upon the theory that inadequate warning constituted a defective condition of the product. Neither the diligence of counsel nor our own research has disclosed a case precisely in point on these facts, although the Restatement of the Law, Torts, § 388 and commentaries thereon, and the case of McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 226 N.Y.S.2d 407, 181 N.E.2d 430 (1962) and cases therein cited, contain helpful discussions. See, also Dillard and Hart, Product Liability: Directions for Use and Duty to Warn, 41 Va.L.Rev. 145 (1955).

Appellant next argues that the deceased was “not the employee of an ‘independent contractor’ in the legal sense of the term,” that (citing 31 A.L. R.2d 1375) “the weight of authority is to the effect that, as a general proposition he [the owner or occupier of premises] is bound in law to use reasonable care to provide and maintain a safe place in which an independent contractor and his employees can work,” and, that “within the perimeters of § 343 and § 414 [of the Restatement of the Law, Torts], that the judgment of the court below should be reversed upon the facts of this record.”

As abstract principles of law the points made (e. g., an employer’s duty to furnish a safe place to work) are generally acceptable today, regardless of the situation only a few decades ago. The appellant’s difficulty, however, lies not with the law but with the facts found in the case before us. Thus the trial court found that National Tank Company, decedent’s employer, “was an independent contractor under an agreement with Texaco, Inc. to install flanges on Texaco’s crude oil storage tanks . . . . ” Disputing such finding the appellant excerpts certain of the testimony going to control, and the right to control, Texaco citing other portions thereof. We find no error in the court’s holding on this point regarding it, in fact, well justified on the record made.

But appellant argues further that, even with independent contractor-ship established, nevertheless it was incumbent upon Texaco to furnish the decedent a safe place to work. The problem here has caused a wide divergence of opinion in the courts. It is the holding of many courts (see footnote 1, Parsons v. Amerada Hess Corp., supra) that employees of an independent contractor are included within the protected class of third persons when the performance of the contracted work is (as here) inherently dangerous. But other courts have held that employees of the independent contractor are not within the protected class. We examined the matter in detail in the Parsons case, supra, and, after an examination of the New Mexico authorities, held as follows:

Until, therefore, New Mexico has spoken more explicitly to our subject, we must conclude that an employee of an independent contractor is not within the class of third persons to whom the employer of the independent contractor owes the nondelegable duty of 'due care while such employee is engaged in the performance of inherently dangerous contracted work. 422 F.2d at 614.

The New Mexico court not having, to date, spoken more explicitly on the subject, our conclusion remains as stated in Parsons.

In the same case, Parsons, the applicability of §§ 343 and 343A liability was exhaustively examined in the light of the New Mexico precedents. We there stated that Section 343 was “intended to impose a duty on the owner of the land to appreciate and warn of a dangerous and latent condition on the premises.” But, as the Section states, liability turns, inter alia, on the consideration that an invitee “will not discover or realize the danger,” and, under Section 343A, there is no liability if the danger is “known or obvious.” Here we have no unknown danger. The record discloses warnings to the decedent by Mr. Beg-shaw of National Tank, by Mr. Muns, his former crew foreman, and by Mr. Fowler, the branch manager. Although appellant attacks this testimony, its credibility and weight were for the trier of the facts.

Appellant, however, relies heavily upon Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971) as having changed the “policy for New Mexico in this area of the law.” We do not so read Williamson. The case dealt with the doctrine of assumption of risk, holding that “assumption of risk will no longer be a defense in New Mexico.” We find therein no discussion of the problem here under consideration, or, indeed, mention of the Parsons case. The more recent case of Mabrey v. Mobile Oil Corp., 84 N.M. 522, 505 P.2d 865 (Ct.App.1972) indicates no change in the Parsons doctrine. There the questions presented related to the liability of the defendant employer of an independent contractor for injury to plaintiff, one of the contractor’s employees, where the contractor denied knowledge of the danger, and where the question of knowledge had been left to the jury. No criticism was made by the Court of Appeals (cert, denied Dec. 11, 1972) of the following instruction:

“The defendant did not owe the plaintiff the duty to warn the plaintiff of or protect him from dangers inherent in the work that defendant hired plaintiff’s employer to do, if plaintiff’s employer knew or should have known of the dangers.”

The conclusions of the Parsons court as to liability under Section 343 is equally applicable here, namely, that “Again until New Mexico speaks on the subject, we agree with the trial court that liability cannot be imposed under Section 343 in situations like this.”

In summary, on this entire phase of the case, there is no doubt that the work being done was inherently dangerous, a fact known both to the appellant’s decedent and to his employer. The employee, with this knowledge, entered the tank in violation of his employer’s instructions. The trial court found that he was contributorily negligent. Although the appellant challenges the finding in the briefs filed with us, on the ground, among others, that appellant's decedent ran into unexpected difficulties in his work at Tank 15, nevertheless the trial court, weighing the evidence and appraising the witnesses, found contributory negligence, and, as we have noted, knowledge of the danger confronted on his part as well as that of his employer. We cannot say there was error therein. Under these circumstances and the applicable New Mexico law, cited hereinabove, the doctrines relied upon by the appellant, imposing liability upon the principal contractor, have no application.

Finally, appellant urges to us that under the regulations of the U.S. Geological Survey, 30 C.F.R. § 221.37, as implemented by the safety orders of the Utah Industrial Commission, Texaco was in violation of such safety orders, such constituting negligence per se as well as of its own safety regulations, alleged violations of which constituted evidence of its negligence. Assuming that the safety orders issued by the Industrial Commission of the State of Utah are applicable, and applicable, as well, to alleged Federal oil leases on Indian lands, issues upon which our view of the case does not require us to rule, it nevertheless remains that the trier of the facts held that Texaco was “not negligent as to decedent in any manner which proximately caused his death.” Such a holding does not, of course, exclude the possibility that the trial court may have believed Texaco negligent in some respect or respects. But, as found, the primary responsibility for an employee’s safety under the circumstances before us rested with his employer, the independent contractor, National Tank. It had the duty to determine how the flange should be installed in the tank, and, in event entry therein was necessary, to properly prepare the tank for entry. Texaco, it was found, had the right to rely on the fact that National Tank had been installing flanges for years and that it would properly proceed with the installation in a safe and prudent manner.

In addition it is significant that this is not a case of hidden or concealed dangers. The appellant’s decedent was, as we have noted heretofore, warned of the dangers he confronted yet, tragically as it turned out, disregarded the danger and entered the tank. Such action on his part was not only the proximate cause of his death but, with particular relevance to the asserted negligence of Texaco, constituted, as found by the trial court, contributory negligence on his part. We find no error in the case.

Affirmed.

      . Durrett v. Petritsis, 82 N.M. 1, 474 P.2d 487 (1970).

      . A “hot” tank is a storage tank in which crude oil has been stored. Findings of Fact, #15.

      . Appellant argues that the instructions given decedent by National Tank on the proper procedures to be followed were admitted “in violation of the New Mexico Deadman’s Statute,” found in N.M.S.A. 20-2-5 (1953 Comp.). Our ruling is restricted to the issue thus raised. The argument is that the National Tank Company, decedent’s employer, which was not a party to the action, was an interested party. This Company, it is argued, shared the same insurance carrier with defendant Texaco and had an economic interest in the litigation arising out of its employment relationship with Texaco. The trial judge rejected the objections made and admitted the testimony. We agree without passing on the issue of interest, since in any event, corroboration was had of the challenged testimony. The New Mexico Act permits testimony otherwise excluded if “such evidence is supported by some other material evidence tending to corroborate the claimant or interested person.” See Hansen, 1 Nat. Res.J. 189 (1961) of the University of New Mexico School of Law.

      . The cited sections state:
      § 414. Negligence in Exercising Control Retained by Employer.
      One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
      The above Section, § 414, is “a member of the same family of sections of the Restatement as Sections 413, 416 and 427,” Parsons v. Amerada Hess Corp., 422 F.2d 610 (10th Cir. 1970), which sections state as follows:
      § 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor.
      One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
      (a) fails to provide in the contract that the contractor shall take such precautions, or
      (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.
      § 416. Work Dangerous in Absence of Special Precautions.
      One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
      § 427. Negligence as to Danger Inherent in the Work.
      One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such workers by the contractor’s failure to take reasonable precautions against such danger.
      § 343. Dangerous Conditions Known to or Discoverable by Possessor.
      A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
      (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

        (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      (c) fails to exercise reasonable care to protect them against the danger.
      § 343A. Known or Obvious Dangers.
      (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
      (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated. 422 F.2d at 612-614.

      . Findings of Fact, # 4. Finding of Fact # 11 stated, in part, that National Tank had instructed decedent on the proper procedure for installing flanges.

      . See footnote 4, supra.

      . See Bowman v. Redding & Co., 145 U.S. App.D.C. 294, 449 F.2d 956 (1971).

      . cf. Conclusions of Law, # 2, “The law of the State of New Mexico governs this case.”

      . Conclusions of Law, # 3.

      . Findings of Fact, # 23.

      . Findings of Fact, 21.

      . Testimony of Begshaw, Muns and Fowler, supra.


author: MURRAH, Circuit Judge.

text:
    LOCAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1822.
    United States Court of Appeals, Seventh Circuit.
    Argued April 18, 1973.
    Decided Sept. 20, 1973.
    Rehearings Denied Nov. 26, 1973.

      Robert E. Fitzgerald, Jr., Edward J. Calihan, Jr., Matthew E. Murray, Chicago, 111., for petitioner.
    John O’Brien, Washington, D. C., Irving M. Friedman, Chicago, Ill., for intervenor.
    Peter G. Nash, Gen. Counsel, Alan D. Cirker, Atty., National Labor Relations Board, Washington, D. C., for respondent.
    Before SWYGERT, Chief Judge, and MURRAH and BARNES, Circuit Judges.

      Senior Judge Alfred P. Murrah of the United States Court of Appeals for the Tenth Circuit sitting by designation.

       Senior Judge Stanley N. Barnes of the United States Court of Appeals for the Ninth Circuit sitting by designation.

   MURRAH, Circuit Judge.

This is an appeal by a labor union from an order of the National Labor Relations Board (the Board) finding that the union had committed a § 8(b)(4)(D) unfair labor practice in a jurisdictional dispute over installation of telephone equipment. The dispute arose in this way. The Communications Equipment and Systems Division of International Telephone & Telegraph Corporation (the Company) contracted with the Village of Elk Grove, Illinois, to sell, install, test, and maintain a private telephone system for the Elk Grove Village Firehouse and City Administration Offices. This work involved two stages, (1) “pulling cable,” i. e., routing the telephone cable to the telephone instruments, and (2) “terminating the cable,” that is installing and testing the Private Branch Exchange (PBX) switch system and telephone instruments. The Company subcontracted the “pulling cable” phase to the C. A. Riley Electric Construction Co., whose employees are represented by Local 134, International Brotherhood of Electrical Workers, AFL-CIO (Local 134); the terminating phase was to be accomplished by Company technicians represented by the Communication Workers of America (CWA).

The Local 134 business agent objected to this work assignment, telling Company officials that Local 134 did all telephone and PBX installation and maintenance work in that area, that CWA would not install telephone equipment in Cook County, and that “[w]e’d better get that work or there will be trouble.”

When CWA technicians appeared at the job site to begin their assigned work, the Local 134 steward announced to his fellow workers either, “I can’t work here” or “we can’t work here.” He and the other Local 134 employees subsequently left the job site, and none returned until the Company agreed that no CWA employees would be on the site. When the Local 134 employees had finished “pulling” the cable, the CWA workers returned and completed the “terminating” phase.

The Company then filed a charge alleging that Local 134 had violated §§ 8(b)(4)(i) and (ii)(D) of the National Labor Relations Act, 29 U.S.C. §§ 158(b) (4)(i) and (ii)(D), which provide in presently material part that it shall be an unfair labor practice for a labor union or its agents to induce or encourage an employee

“(i) ... to engage in . . . a refusal in the course of his employment to . . . perform any services ; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is
* * * * * *
“(D) Forcing or requiring any employer to assign particular work to employees in a particular labor organization . . . rather than to employees in another labor organization. . . ."

A hearing on the charge, conducted by a hearing officer in accordance with the provisions of § 10 (k) of the Act, 29 U. S.C. § 160(k), resulted in a finding that employees represented by Local 134 were not entitled to the disputed work assignment, and that Local 134 was therefore not entitled to attempt to coerce or force the Company to assign the disputed work to its members. When Local 134 informed the Board’s Regional Director of its decision not to acquiesce in the Board’s determination, the Regional Director issued this unfair labor practice complaint. Upon a § 10(b) hearing, 29 U.S.C. § 160(b), the Board adopted the § 10(k) findings, and accordingly determined that Local 134 had committed a § 8(b)(4)(D) unfair labor practice.

In this § 10(e) enforcement proceeding, Local 134 takes the position that all of the installation work involved here has customarily been performed by Local 134 and, relying upon Longshoremen and Warehousemen’s Local 8 (Waterway Terminals Co.), 185 NLRB No. 35, and the rationale in Woodwork Manufacturers v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), contends that the Board erroneously found in the § 10 (k) proceeding that the work should be awarded to CWA. In the Waterway Terminals and other referenced cases the Board, recognizing the concept of customary work assignments, held that § 8(b)(4)(D) was not designed to proscribe union attempts to retrieve the jobs of employees whom the employer had supplanted by reallocating their work to others. Contrary, however, to the position of the union, we do not have a customary work assignment case in which work is usurped from workers of one union by reallocation to workers of another union. Testimony at the § 10 (k) hearing clearly indicates that employees represented by CWA customarily install and test equipment similar to that involved here in Cook County, and the Board determined that by area, employer, and industry practice and by skill and training, the CWA employees were more entitled to perform the disputed work than employees of Local 134.

“[w]henever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practices shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.”

In the Woodwork Manufacturers case a trade association filed a § 8(b)(4)(B) charge, claiming that it was an unfair labor practice for carpenters to refuse to handle pre-cut and pre-fitted doors manufactured by a member of the association. The NLRB dismissed this particular charge (149 NLRB 646), and the Court of Appeals affirmed (354 F.2d 594, 599 (7th Cir. 1965)). The Supreme Court also affirmed, based upon the Board’s specific findings to the effect that the union’s conduct involved only a primary contract dispute with the employer over preservation of job-site work customarily performed by the contracting union, rather than a secondary jurisdictional dispute between two unions, and was therefore not prohibited by § 8(b)(4). The court concluded that, viewed as a whole, § 8(b)(4) was manifestly intended to protect genuinely neutral employers from coercive pressures in disputes not their own; and rationalized that “[t]he prohibition of subsection (D) against coercion to force an employer to assign certain work to one of two unions contesting for it protects the employer trapped between the two claims.” 386 U.S. at 625, 87 S.Ct. at 1258. In both Woodwork Manufacturers and Waterway Terminals the Board and the courts were concerned with the concept of customary work assignments, and simply applied that doctrine to exempt the disputes from the prohibitions of § 8(b)(4).

The insurmountable difficulty confronting the union here is that the salient and controlling facts of its case do not fit the facts of the cases upon which it relies. In our case the Company is a party to a collective bargaining agreement with CWA, covering installation operations, pursuant to which the work in question was assigned to CWA. At the § 10 (k) hearing it was concluded that “considerations of collective-bargaining history and agreements favor assignment of the work to employees represented by CWA.” Unlike the circumstances of Woodwork Manufacturers and Waterway Terminals, then, the Company assigned the work to CWA in accordance with a current collective bargaining agreement, but was coerced by Local 134 in an attempt to have the work assigned to employees the Local represents. In these circumstances the employer was “trapped” in a jurisdictional dispute between the two contesting unions. Stated another way, the Local 134 activities complained of did not involve a primary dispute with the employer over fulfillment of its contract for work customarily performed, but were secondary pressures designed to influence the employer concerning a jurisdictional union dispute. Such is the very activity § 8(b)(4)(D) was intended to prohibit. 386 U.S. at 625, 87 S.Ct. 1250. See also National Labor Relations Board v. Local Union No. 9, 255 F.2d 649 (4th Cir. 1958). We certainly cannot say that the Board's decision was not supported by the controlling facts of the case. See, e. g., NLRB v. Akin Products Co., 209 F. 2d 109 (5th Cir. 1953).

Compliance With the Requirements of the Administrative Procedure Act

Local 134 also contends that the Board violated Section 5 of the Administrative Procedure Act, 5 U.S.C. § 554, because the hearing officer in the § 10(k) proceeding subsequently served in a prosecutorial capacity as counsel for the General Counsel at the § 8 Unfair Labor Practice Hearing. Section 554 provides in presently material part that “[a]n employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review. . . . ” The avowed purpose of this provision of the Act is to “. . curtail and change the practice of embodying in one person . . . the duties of prosecutor and judge.” See Wong Yang Sung v. McGrath, 339 U.S. 33, 41, 70 S.Ct. 445, 450, 94 L.Ed. 616 (1950). See also Riss & Co., Inc. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345 (1951). And it is true that in this case the presiding § 10 (k) hearing officer also acted as a prosecutor at the Unfair Labor Practice Hearing.

In the Board's view it was not improper for the same person to perform the functions of hearing officer and subsequently prosecute an unfair labor charge based upon the evidence adduced at that hearing, simply because the hearing was without binding effect on anyone. While this is technically so, it is also true that the hearing officer’s rulings at the § 10 (k) hearing largely determine what evidence the Board will have to consider at the Unfair Labor Practice Hearing, in which the hearing officer participates as an advocate. It is, we think, an oversimplification to say that the § 10 (k) hearing has no binding effect. As Justice White put it in NLRB v. Plasterers’ Union, 404 U.S. 116, 126-127, 92 S.Ct. 360, 367, 30 L. Ed.2d 312 (1971),

“ . . . the impact of the § 10(k) decision is felt in -the § 8(b)(4)(D) hearing because for all practical purposes the Board’s award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10 (k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10 (k) decision and the employer does not comply, the employer’s § 8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed.”

The Board also argues that the combination of functions did not violate the Administrative Procedure Act because the hearing officer performed his prosecutorial duties only after he had already presided at the § 10 (k) hearing. But, as Justice Jackson cogently observed in Wong Yang Sung, supra,

“[a] genuinely impartial hearing, conducted with critical detachment, is psychologically improbable, if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible. Nor is complete divorce between investigation and hearing possible so long as the presiding inspector has the duty himself of assembling and presenting the results of the investigation.” 339 U.S. at 44, 70 S.Ct. at 451.

It is apparently admitted that § 554 applies to § 10(k) hearings. And § 556 of the Act provides in presently material part that, in hearings required to be conducted in accordance with § 554, “. . . [t]here shall preside at the taking of the evidence . . . one or more hearing examiners appointed under section 3105 of the title.” Section 3105 provides in presently material part that hearing examiners “. . . may not perform duties inconsistent with their duties and responsibilities as hearing examiners.” This is, we think, a specific manifestation of the congressional intent that administrative officers who preside at such hearings be completely “isolated,” “impartial,” and “independent” (see, e. g., 92 Cong.Rec. A-2982 (1946), 92 Cong.Rec. 2160 and 2163 (1946), 20 Fed.B.J. 74-76 (1960), and 27 Fed.B.J. 351 at 362 (1967); that there shall be no “commingling” of the functions of investigation or advocacy with the function of decision making. See Wong Yang Sung, supra, 339 U.S. at 44, 70 S.Ct. 445 quoting the Attorney General’s Committee on Administrative Procedure. “It has been said that hearing examiners are the administrative equivalent of federal judges.” Indeed, the title of hearing examiner has recently been changed to “Administrative Law Judge.” That is, see 37 Fed.Reg. 16787 (No. 162, Aug. 19, 1972).

In our case the hearing officer had the duty of hearing the evidence in the case, and subsequently urging and relying upon it as prosecutorial evidence. We think that the knowledge on the part of the presiding officer that he will subsequently advocate a position based upon his own evidentiary rulings at the § 10(k) hearing could very well influence his decisions at that hearing. This commingling of functions is plainly inconsistent with both the spirit and the letter of the Act, and, we think, incompatible with the accepted norms for the proper administration of justice. An order of the Board thus tainted should not be enforced.

Enforcement is accordingly denied.

      . There is some conflict in the evidence as to his exact words, but the difference is not material.

      . Section 10 (k), 29 U.S.C. § 160 (k), provides that

      . We assume that the § 10 (k) hearing officer in this case is the equivalent of a hearing examiner for purposes of § 556, inasmuch as the statute so requires and no point was made of any distinction, either at the hearing or on appeal.

      . See comments of Henry S. Sham, NLRB Trial Examiner, at 20 Fed.B.J. 74, 79 (1960), quoting Mr. Earl W. Kintner, then Chairman of the Federal Trade Commission.