author: THORNBERRY, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Defendant-Appellant.
    No. 72-2943.
    United States Court of Appeals, Fifth Circuit.
    Aug. 3, 1973.

      Wm. P. Simmons, Jr., Eric B. Meyers, Muller & Mintz, Ray C. Muller, Miami, Fla., Ross L. Malone, Gen. Counsel, General Motors Acceptance Corp., Eugene L. Hartwig, Detroit, Mich., for defendant-appellant.
    John K. Light, William J. Kilberg, Solicitor, Carin Ann Clauss and Donald S. Shire, Department of Labor, Washington, D. C., for plaintiff-appellee.
    Before GEWIN, THORNBERRY and RONEY, Circuit Judges.
   THORNBERRY, Circuit Judge:

This is an action brought by the Secretary of Labor to enjoin the General Motors Acceptance Corporation from violating the overtime and record keeping provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and from withholding more than $92,000 in unpaid overtime compensation from twenty-six employees. The employees in question were district representatives, field representatives, and telephone collection men; their basic task was collecting overdue accounts and repossessing automobiles. Their jobs naturally demand long and irregular hours in the field. Because the men work on their own and without direct supervision, GMAC computes their hours worked (and thus wages) by relying on time sheets completed by the employees in the field. The court below found that despite efforts of upper echelon management to encourage accurate overtime reporting, the employees nevertheless understated their overtime because of pressure brought to bear by their immedidate superiors. The trial court found that these supervisors insisted that reported overtime hours be kept to a stated minimum level, thus forcing the employees to work unreported and thus uncompensated hours of overtime. The trial court, 347 F.Supp. 9, concluded that GMAC had willfully violated the FLSA and therefore awarded back pay for three years’ unreported overtime to twenty-six employees, including eleven who did not testify at trial. GMAC appeals from the trial court's decision, and we affirm.

On appeal GMAC raises three points of error. It maintains it did not violate the FLSA because the company had no actual or constructive knowledge that these employees were working unreported, uncompensated hours of overtime. GMAC further claims that even if it did violate the FLSA, the violation was not willful and therefore a two-year statute of limitations should apply, instead of the three-year statute applied by the trial court. GMAC’s last point is that there was no competent evidence in the record to justify an award to the eleven employees who did not testify at trial.

GMAC’s principal argument is that it cannot have violated the FLSA because it had no knowledge of the unreported overtime. The company relied on its employees to report fully all the hours worked. In fact the record contains a series of memoranda and instructions promulgated by upper management to encourage full reporting of all hours worked by employees. If the employees are not paid for all overtime hours worked it is because they have voluntarily failed to report those hours to the company. While it may be true that the company has had no actual knowledge of the unreported overtime hours, we believe the company had constructive knowledge.

This court’s latest pronouncement on the issue of employer knowledge in FLSA cases came in Gulf King Shrimp Co. v. Wirtz, 5th Cir. 1969, 407 F.2d 508. In that case the employer maintained he did not have actual knowledge that minors were illegally working in his factory. In response to that position we said:

With these principles in mind we need only to inquire whether the circumstances of the present case were such that the employer either had knowledge that minors were illegally in his employ, or else had the “opportunity through reasonable diligence to acquire knowledge.” 407 F.2d 508, 512.

In the instant case the trial court found that during the three years preceding this lawsuit twenty-six employees had been working an average of thirteen hours of overtime each week. It would seem that an employer exercising reasonable diligence would acquire knowledge of this fact. Indeed, GMAC’s upper management regularly encouraged the full reporting of overtime and sought to learn of all overtime worked, but the trial court found that the employees’ immediate supervisors insisted that all work be completed within certain defined time limits and that “the pervasive effect of such instructions from defendant’s supervisors to its employees was that an employee was limited in the number of hours he could turn in for payroll purposes irrespective of the number of hours actually worked. The defendant’s district representatives, field representatives and certain of the side telephone collection men regularly worked in excess of forty hours per week but with rare exception, were only allowed to turn in, record, and be paid for forty to forty-two hours.” Because the immediate supervisors were primarily responsible for the employees’ failing to report all overtime, we believe they may have had actual knowledge of the unreported overtime. At the very least they had constructive knowledge, for they had the opportunity to get truthful overtime reports but opted to encourage artificially low reporting instead. The company cannot disclaim knowledge when certain segments of its management squelched truthful responses.

GMAC appeals also from the trial court’s finding that its violation of the FLSA was willful. Section 6(a) of the Portal-to-Portal Act, 29 U.S.C. § 255(a), as amended 1966, provides a two-year limitation on actions to recover unpaid compensation, “except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” Thus a finding of willfulness increases defendants’ exposure to liability by fifty percent. GMAC advances two reasons why its actions in any violation of the FLSA cannot be characterized as willful. First, the upper levels of GMAC management frequently instructed branch managers and employees in the importance of accurate, honest overtime reporting and made every effort to encourage employees to report all hours worked. Second, some employees falsified their activities report and prevented GMAC management from knowing how many hours they were working. Thus, if GMAC gave its employees every opportunity to report all overtime hours worked and encouraged the employees to do so, and some employees responded by falsifying their overtime reports, any violation of the FLSA by defendant was purely inadvertent and not willful. We disagree with this view.

This court treated the question of employer willfulness in FLSA violations in Coleman v. Jiffy June Farms, Inc., 5th Cir. 1972, 458 F.2d 1139, cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219. In that case an employer instituted a new overtime pay rate after counsel advised him that the new rate would not violate the FLSA. Because he had checked with counsel, and because he was acting in good faith, he claimed that the resulting violation of the FLSA could not be willful. This court disagreed and found willfulness because there was substantial evidence in the record “to support a finding that the employer knew or suspected that his actions might violate the FLSA. Stated most simply, we think the test should be: Did the employer know the FLSA was in the picture?” 458 F.2d at 1142. In that case the court found the employer knew of the possible applicability of the FLSA because he had consulted his lawyer to see if his actions would be in violation.

Although the court in Coleman v. Jiffy June Farms, Inc. limited its decision to the particular facts of that case, we think the same approach should be used in the instant case. In both eases an employer with knowledge of the possible applicability of the FLSA took deliberate action that was later Characterized as a violation. The record indicates that GMAC was apprised of the meaning and scope of the FLSA by virtue of previous wage-hour investigations which disclosed a number of violations. These investigations ended in stipulated settlements. GMAC’s awareness is also indicated in memoranda issued by its corporate headquarters. One such memorandum, dated January 27, 1969, recognizes that the long and irregular hours worked by the field personnel of the branch offices, coupled with the responsibility of management to maximize efficiency and effectively utilize employees’ time, could result in the underreporting of hours of work and that such underreporting might “subject GMAC to possible unanticipated legal liability.” The memo added that “field employees constitute the major potential problem for GMAC in Wage and Hour Law compliance.” Other memoranda and instructions in the record also indicate a keen GMAC awareness of the wage and hour problem presented by their district and field representatives and telephone collection men. These memoranda and instructions communicated FLSA awareness from upper management to lower management and to employees.

Despite these instructions and memo-randa the employees’ immediate supervisors persistently reminded the employees that their jobs were to be performed in forty to forty-two hours. Once again we must note the lower court’s finding that “the pervasive effect of such instructions from defendant’s supervisors to its employees was that an employee was limited in the number of hours he could turn in for payroll purposes irrespective of the number of hours actually worked.” Thus while one level of management had a keen awareness of possible FLSA violations in the area of overtime compensation, a lower level of management intentionally proceeded with a course of action that has now been characterized as an FLSA violation. Under the Coleman v. Jiffy June Farms, Inc. test such a violation must be termed willful. The trial court was correct in allowing a three-year statute of limitations.

Appellant’s last point of error is that the trial court should not have included in its award eleven employees who did not testify at the trial because appellee did not introduce sufficient evidence to show that they had worked uncompensated overtime hours. This is a determination of fact to which we will apply the “clearly erroneous” standard.

The trial court found that “the defendant’s district representatives, field representatives, and certain of the side telephone collection men regularly worked in excess of forty hours per week, but with rare exceptions, were only allowed to turn in, record, and be paid for forty to forty-two hours.” We interpret this finding to mean that as a general rule this type of GMAC employee worked unreported overtime hours. The court’s finding is not clearly erroneous, for evidence in the record supports such a conclusion. Sixteen employees testified that they worked unreported hours of overtime. Furthermore, a government investigator interviewed six employees, examined GMAC records and concluded that GMAC employees in this type of job consistently failed to report all the overtime hours worked. From these two sources, the employees’ testimony and the investigator’s testimony, the trial court might well have concluded that plaintiff had established a prima facie case that all thirty-seven employees had worked unreported hours. At that point the burden of proof shifted to the defendant, and it was his obligation to show which of the employees had reported all overtime hours. Appellant produced ten such employees and the trial court accordingly omitted them and one other from its award. The ten men who reported all overtime hours were those who resisted the “pervasive effect” of the supervisors’ instructions.

The judgment of the district court is affirmed.


source: Caselaw Access Project

author: BARRETT, Circuit Judge.

license: Public Domain

text:
    James Nelson HINDE and Hinde Engineering Company, Plaintiffs-Appellees. v. HOT SULPHUR SPRINGS, COLORADO, Defendant-Appellant.
    No. 72-1878.
    United States Court of Appeals, Tenth Circuit.
    July 19, 1973.
    Rehearing Denied Aug. 14, 1973.

      William Griffith Edwards, Denver, Colo. (Fred S. Lockwood, Chicago, 111., of counsel), for appellees.
    Herbert A. Shatz, Denver, Colo. (George A. Smith and George A. Smith, Jr., Philadelphia, Pa., of counsel), for appellant.
    Before BREITEN STEIN, McWIL-LIAMS and BARRETT, Circuit Judges
   BARRETT, Circuit Judge.

John Nelson Hinde, patentee, and Hinde Engineering Company, exclusive licensee of United States Letters Patent Nos. 3,293,861 (’861) and 3,234,123 (’123), brought this patent infringement suit against the Town of Hot Sulphur Springs, Colorado, (Town), following its installation and operation of a sewage treatment plant. The trial court, 359 F.Supp. 987, sitting without a jury, held that ’123 was valid and that the Town, together with its privies, Case/Cotter, Inc., and Schramm, Inc., had deliberately, wilfully, and wantonly infringed Claims 8 and 21 of ’123. The Court perpetually enjoined the Town, its officers, and all those under its control or in privity with it, from infringing upon claims 8 and 21 of ’123. In addition, an accounting was ordered to ascertain treble damages for infringement.

’123, “Method of and Means for Treating Bodies of Water”, was a continuation, in part, of ’861, “Method of Distributing Fluids in Bodies of Liquid and Apparatus Therefor”. A review of the events surrounding these patents will facilitate our consideration of the issues presented.

Hinde first began experimenting with the concepts of water aeration in 1958 to prevent winter fish kill as a favor to a friend. By utilizing a compressor to pump air through submerged copper tubing with small holes punched therein, he was able to supply oxygen into a small trout pond. It stopped the fish from dying. However, many of the holes became clogged in a short period of time and the bubbles emitted from the tubing were quite large. Thereafter he began experimenting with hoses and rubberlike tubing.

In 1958 Hinde also sent the Kenosha Trout Club in Colorado, polyethylene tubing which he had perforated every five feet with needle holes. Once the Club members had submerged and anchored the tubing, they found that it was not only effective in preventing fish kill, but that it also melted large strips of ice. Encouraged by these reports, Hinde formed his own company.

In the summer of 1959, Hinde sent tubing to the Montague Fish Hatchery in Massachusetts. This tubing had round needle holes and was weighted with taped on lead. Clogging was again a problem and even though he developed a chisel-shaped needle that punched slotted self-closing valves, the mineral content in the water precluded its effectiveness. At this time Hinde also began inquiring as to the availability of tubing with an encapsulated lead keel.

In January, 1960, Hinde installed tubing at the Bauduin Yacht Club to melt ice around a pier. This tubing was perforated with larger needle holes at two feet intervals. Clogging was somewhat of a problem, but having determined that slit holes produced smaller bubbles and did not clog as rapidly as round ones, Hinde sent the Club a “minute knife blade” so that the holes could be repunched and thus converted to slits.

By November, 1960, Hinde was able to obtain tubing with an encapsulated lead keel. He had also developed a die that would put self-closing slit valves in the tubing without widening it as much as the chisel-shaped needle. Having thus developed a tubing which could discharge oxygen in a controlled manner with a minimum of clogging while submerged for extended periods of time, Hinde felt that his tubing would be an economical means for treating sewage. Therefore, in the summer of 1961, he shipped tubing to Butterfield Estates, Illinois, to be installed to handle the waste of a housing development. The tubing was shipped with the understanding that Hinde would be paid if, and only if, the tubing worked. In November, 1961, Hinde shipped tubing to Tin-ley Heights, Illinois, for another installation under similar terms. In each instance perforated tubing with slit valves and an encapsulated lead keel was installed, and in each instance the installation was successful. A similar installation was made at the United States Industrial Chemical Company at Tuscola, Illinois, during the summer of 1961. By the date of trial Hinde had made over three hundred similar installations in various parts of the country.

On November 13, 1961, Hinde applied for a patent relating to “innovations and' improvements in distributing or dispersing fluids into bodies of liquid for various purposes.” This application gave rise to ’861 and it utilized a perforated flexible weighted tubing which was “provided with a plurality of outlet valves in the form of relatively short self-closing slits oriented substantially lengthwise of the tubing.” The uses of the tubing as set forth in the application included aeration of bodies of water to prevent summer and winter fish kill, ice melting, and sewage or industrial waste treatment.

On December 26, 1962, Hinde also applied for a patent relating to “innovations and improvements in the treatment of bodies of water with air or other gas, usually for purification and related benefaction purposes.” This application gave rise to the T23 patent. It was a continuation in part of Hinde’s pending ’861 application. By utilizing a plurality of submerged conduits arranged in a predetermined pattern of the same type as the perforated tubing utilized in ’861, ’123 was able to release sized bubbles in a controlled manner and thereby produce “upward laminar flows of aerated water.”

An important feature of ’123 was the creation of hydraulic curtains formed by the upward laminar flow of aerated water above the submerged conduit, creating a series of treatment cells, wherein there is a “horizontal division of a body of water into a lower anaerobic layer which is relatively quiescent and an upper aerobic layer which is non-quiescent by reason of being vertically divided into said hydraulically defined cells.”

Claims 1, 8, and 21 of ’123 described the process as follows:

1. The method of aerating a body of aqueous liquid which comprises releasing oxygen-containing gas into said body from a plurality of submerged flexible conduits having a narrow row of self-closing slit valves in the upper portions thereof for substantially the full length of each conduit and arranged in a pattern wherein said conduits extend substantially straight and parallel with each other, said oxygen-containing gas being released through said slit valves in bubble form along the length of each conduit in such manner that the diameters of the majority of bubbles do not exceed approximately % inch so as to produce upward Jaminar flow of a curtain of aerated liquid above said conduits with each such curtain parting at the surface so as to form downward recirculation of the liquid intermediate each of said curtains whereby said body is divided into a series of parallel hydraulically defined cells, said self-closing slit valves being spaced sufficiently close together in said narrow rows as to release streams of said bubbles which are close enough together to produce said upward laminar flow.
8. The method of claim 1 wherein said body of aqueous liquid is formed by waste water selected from the group consisting of domestic sewage, industrial waste, effluent from an activated sludge treatment plant, and effluent from a trickling filter treatment plant.
21. In a sewage or industrial waste treating lagoon of elongated rectangular shape and uniform depth having an influent inlet at one of the narrow ends and an effluent outlet adjacent the opposite end, means for aerating the body of waste flowing through said lagoon, comprising, a plurality of lengths of weighted flexible tubing having a narrow row of self-closing slit valves in the upper portions thereof for substantially the full length of each conduit and resting on the bottom of said lagoon and arranged in a pattern wherein said lengths are substantially straight and parallel with each other and extend generally transversely to the length of said lagoon, compressed air header means communicating with said lengths of tubing, and compression means, said self-closing slit valves serving to release bubbles the diameters of the majority of which do not exceed y8 inch in diameter and said slit valves being spaced sufficiently close together in said narrow rows as to release streams of said bubbles which are close enough together to produce upward laminar flow above each length of conduit.

In April, 1969, Hinde Engineering Company, through its Denver agent, Control Sales Incorporated, submitted a bid for the installation of an aerated oxidation pond to the Town’s consulting engineers. Thereafter, when it discovered that the Town had installed a system for treating liquid sewage, it filed suit.

Hinde claimed that the Town’s engineers used its design in the preparation of the plans and construction of its installation, that the Town’s installation operates as Hinde had designed it to operate, and that the principal change was the use of Schramm, Inc.’s tubing rather than its own. Hinde also alleged that the infringement was deliberate, wilful, and wanton. The Town denied infringement and asserted that ’123 was invalid and that it had been fraudulently obtained. The trial court upheld the validity of ’123 and entered judgment in favor of Hinde.

On appeal the Town sets forth four allegations of error, i. e.: (1) Claims 8 and 21 of ’123 are invalid by anticipation under 35 U.S.C.A. § 102 because they are not supported by the disclosure of the application on which ’861 is based within the requirements of 35 U.S.C.A. § 120; (2) Claims 8 and 21 of ’123 are invalid because of obviousness under 35 U.S.C.A. § 103; (3) Claims 8 and 21 are not sufficiently definite to satisfy the requirements of 35 U.S.C.A. § 112; and (4) the perpetual injunction, which is woi’ded in the language of Claims 8 and 21 of ’123, is too vague to be understood.

We observe at the outset that we are not a trial court and that a case cannot be presented de novo on appeal, and further that the findings and conclusions of the trial court must stand unless clearly erroneous. Maloney-Crawford Tank Corporation v. Sauder Tank Company, 465 F.2d 1356 (10th Cir. 1972); Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir. 1970). The Town’s entire appeal is predicated on the invalidity of ’123 and the vagueness of the injunction. No challenge is made to the trial court’s determination that the Town deliberately, wilfully, and wantonly infringed Claims 8 and 21 of ’123.

I.

The Town contends that Claims 8 and 21 of ’123 are invalid by anticipation under 35 U.S.C.A. § 102 because they are not supported by the disclosure of the application on which ’861 is based within the requirements of 35 U.S.C.A. § 120. This argument is predicated on the contention that since three installations, (Butterfield Estates, Tinley Heights, and United States Industrial Chemical), embodying the essence of ’123, were in public use and on sale more than one year prior to its December 26, 1962, filing date, Claims 8 and 21 are invalid by anticipation because they are not entitled to the benefit of the November 13, 1961 filing date of ’861 via 35 U.S.C.A. § 120.

35 U.S.C.A. § 102 provides in part:

A person shall be entitled to a patent unless—
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or .
Section 120 of 35 U.S.C.A. provides: An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application.

To come within Section 120, the ’123 application must: (1) disclose an invention described in the manner provided in 35 U.S.C.A. § 112 in an earlier application; (2) be by the same inventor; (3) be filed before the patenting of the earlier application; and (4) contain a specific reference to the earlier application. Bendix Corporation v. Balax, Inc., 421 F.2d 809 (7th Cir. 1970), cert. denied 399 U.S. 911, 90 S.Ct. 2203, 26 L.Ed.2d 562 (1970). It is undisputed that the applications were filed by the same person, that the ’123 application was filed before a patent was granted for ’861, and that the ’123 application referred to ’861. The sole question is whether ’123 was adequately disclosed in accordance with Section 112 in the ’861 application.

The trial court, in affording ’123 the filing date of ’861 held, effectively, that the ’861 application contained a written description of ’123 in such full, clear, concise and exact terms to enable any person skilled in the art to which it pertains to make and use the same. In this regard, the trial court found:

Claims 8 and 21 of the ’123 patent correspond, as to operation and as to construction, respectively, to Figure 3 of the ’861 patent and the pertinent portions of that patent’s specifications. In particular, Claim 21 is adequately disclosed in Figure 3 when the aeration equipment shown in Figure 3 is installed in a sewage lagoon typical of that time such as was described by both plaintiffs and defendant’s experts.
Thus Claims 8 and 21 are disclosed in the ’861 patent application, and it follows that they are entitled to the benefit of the filing date of November 13, 1961.

In making these findings, the trial court relied heavily on the findings of the patent office, the drawings and specifications, the testimony adduced at trial, and the courtroom demonstration. Such a finding represented one of mixed fact and law, which, absent a persuasive proof that it is clearly erroneous, will not be reversed on appeal. Maloney-Crawford Tank Corporation v. Sauder Tank Company, supra. See also Refrigeration Patents Corporation v. Stewart-Warner Corporation, 159 F.2d 972 (7th Cir. 1947).

We hold that the trial court did not err in determining that ’123 should be afforded the earlier filing date of ’861. Since ’123 did not disclose any definite subject matter not defined in ’861, it is entitled to be afforded the earlier filing date. Application of Van Langenhoven, 458 F.2d 132 (CCPA 1972). Whenever the subject matter of one patent is completely disclosed in a previous application, and it reads on one of the important uses set forth therein, it is entitled to the filing date of the previous application, provided the other conditions of Section 120 are met. Application of Risse, 378 F.2d 948, 54 CCPA 1495 (1967).

Even if we doubted the validity of the trial court’s determination, which we do not, the Town’s own expert, Dr. Fischer, did not challenge or dispute testimony that Claims 8 and 21 could be found in the ’861 application. Thus, when the evidence is considered in its totality in specific relationship to the type of disclosure dictated by Section 120 via Section 112, it is clear that the disclosure of the ’861 application, along with the prior art, brought ’123 within the ’861 application, in accordance with the requirements of Section 120.

II.

The Town contends that Claims 8 and 21 are invalid because of obviousness under 35 U.S.C.A. § 103. This argument is based on the theory that the subject matter of Claims 8 and 21 would have been obvious to a person having ordinary skill in the art at the time it was allegedly invented. In support of this contention, the Town argues that had the Patent Office been aware that tubing capable of producing laminar flow already had been in public use at Keno-sha, Montague, and Bauduin, and that it was being offered for sale via Hinde’s sales brochure, and that had the Patent Office been aware that diffused aeration was suggested to the public by the O’Connor and Eckenfelder article, the Patent Office would have concluded that the subject matter of Claims 8 and 21 was obvious.

Although the question of patent validity is one of law for the court to decide, Admiral Corporation v. Zenith Radio Corporation, 296 F.2d 708 (10th Cir. 1961), the issue of obviousness must be resolved on the basis of factual inquiries. Carson v. Bland, 398 F.2d 423 (10th Cir. 1968). The trial court addressed itself to the issue of obviousness in the following manner:

Defendant’s final challenge to the validity of the ’123 patent is based upon 35 U.S.C.A. § 103, which requires the subject matter covered by the patent application not to have been obvious at the time the invention was made to a person having ordinary skill in the art to which the subject matter pertains.
Under Section 103, the following three conditions must be satisfied: (1) the scope and content of the prior art are to be determined; (2) differences between the prior art and the claims at issue are to be ascertained; and, (3) the level of ordinary skill in the pertinent art is to be resolved. Graham v. John Deere Co., 383 U.S. 1, 16 [86 S.Ct. 684, 15 L.Ed.2d 545] (1965). As indicia of obviousness or non-obviousness, such secondary considerations as commercial success, long felt but unsolved needs, and so forth, may be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.

Proceeding from this standard, the trial court distinguished the article because it undertook aeration by the utilization of air headers carrying spargers at appropriate places, in an admittedly characteristically turbulent system which does not indicate that treatment cells are formed. The trial court also found that the tubing offered for sale on November 19, 1961, was not in public use or on sale for more than one year before the November 13, 1961 filing date of the ’861 patent and that it could not be considered part of the prior art with respect to the claims in the suit. In view of the time period from 1958 to 1960 during which time Hinde was refining his tubing, we hold that the Court did not err.

In summarizing its argument that the claims involved herein were obvious, the Town makes the following observation:

Thus, we submit that there is an inconsistency in the District Court’s reasoning with respect to obviousness and anticipation: if the claimed subject matter was unobvious, it is not entitled to the benefit of an earlier filing date and is therefore anticipated; if it is entitled to the benefit of an earlier filing date, then it was obvious. Either way the claims are invalid.

If the trial court is to be considered guilty of “faulty logic”, we submit that the Town is equally guilty in that it consistently argues that although Claims 8 and 21 could not be anticipated in the ’861 application, T23 is invalid because the same claims were obvious. In any event, we are non-plussed by the Town’s contention that the District Court used faulty logic herein. To adopt the Town’s view would be to endorse the position that Congress did not want anyone to be able to utilize the provisions of Section 120. See Frantz Manufacturing Company v. Phenix Manufacturing Company, 457 F.2d 314 (7th Cir. 1972).

III.

The Town contends that Claims 8 and 21 are not sufficiently definite to satisfy Section 112, supra. The trial court considered this allegation in the following manner:

It should first be noted that great weight must be given to the findings of the Patent Office if they are consistent with the evidence presented at trial. McCullough Tool Company v. Well Surveys, supra; Johns-Manville Corp. v. Ladd [117 U.S.App.D.C. 262], 328 F.2d 563 (D.C.Cir. 1964). A review of the records from the Patent Office reflect that ultimately the Patent Office was satisfied with the precision and clarity of Claims 8 and 21. In addition, the drawings and specifications of the ’123 and ’861 patents, the testimony adduced at trial, and the courtroom demonstration are persuasive that the defendant failed to sustain its burden of proving either the affirmative defense of invalidity based upon indefiniteness under 35 U.S.C.A. § 112 or the affirmative defense under 35 U.S.C.A. § 102 barring the patenting of an invention that is in public use or on sale more than one year before the date of the patent application.
Claims 8 and 21 of the ’123 patent do particularly point out and claim Mr. Hinde’s invention, the specifications of both the T23 and the '861 patents contain written descriptions that comply with the requirements of Sections 112, and Claims 8 and 21 of the T23 patent are completely disclosed in the ’861 patent.

When, as here, the findings of the Patent Office are reviewed and endorsed by a trial court, we will not reverse on appeal unless clearly erroneous. The trial court did not err.

IV.

The Town argues that utilization of claim language within the injunction rendered it in violation of Rule 65(d), Fed.R.Civ.P. for lack of specificity. Having reviewed the injunction we hold that it does not violate Rule 65(d). Furthermore, since the Town was expressly allowed to continue to use its sewage treatment facilities, the injunction does not place an undue burden on the Town.

Affirmed.

      . Although the Town was the sole named defendant, it has been defended throughout by Schramm, Inc., the supplier of the aeration conduit used in the accused installation, and Case/Cotter, Inc., the subcontractor for the installation. The perpetual injunction was tempered by a proviso allowing the Town to continue to operate its existing sewage treatment facilities.

      . “Laminar flow” was defined to mean “upward flow with little or no turbulence.”

      . 35 U.S.C.A. § 112 provides in pertinent part as follows:
      The specifications shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in tbe art to wlueli it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

      . Section 103 provides :
      A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.

      . “Treatment of Organic Wastes in Aerated Lagoons”, Journal of the Water Pollution Control Federation, April, 1960.


author: GEWIN, Circuit Judge:

text:
    Clifford W. POTTER, Regional Director of Region 23 of the National Labor Relations Board, etc., Petitioner-Appellee, v. HOUSTON GULF COAST BUILDING TRADES COUNCIL, AFL-CIO, et al., Respondents-Appellants.
    No. 73-1187.
    United States Court of Appeals, Fifth Circuit.
    Aug. 10, 1973.

      W. Arthur Combs, W. Dickinson Yale, Jr., Houston, Tex., for Houston Gulf.
    Hugh E. Hackney, Houston, Tex., for Bullen and Boley.
    Wiley Doran, Houston, Tex., for Int’l Electrical Workers.
    William N. Wheat, Houston, Tex., for Carpenters Dist. Council.
    Robert G. Levy, N. L. R. B., Region 23, Houston, Tex., Julius G. Serot, Sp. Counsel, N. L. R. B., Marvin Roth, Supervisory Atty., Washington, D. C., for petitioner-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   GEWIN, Circuit Judge:

In this case we are concerned solely with the scope of the equitable relief granted by the district court, 363 F.Supp. 1. Appellants are several unions all members of the Houston Gulf Coast Building and Trades Council. They contend that the relief fashioned by the court below is unnecessarily broad insofar as it bars them from engaging in peaceful primary picketing. We conclude that the scope of the injunctive relief granted is overbroad and should be modified; otherwise we affirm the order of the district court.

This litigation arose out of a labor dispute between appellants and two construction companies, Bullen Corporation (Bullen) and Boley Construction Company (Boley). The ease was submitted to the district court upon the following stipulated facts. Bullen is a general contractor engaged in and supervising three separate construction projects in Houston, Texas. In November qf 1972 appellant Houston Gulf Coast Building and Trades Council and its component unions commenced efforts to organize Bullen’s employees. Pickets were established at each of Bullen’s three jobsites; they carried signs protesting the allegedly substandard wages paid by Bullen. Bullen immediately notified the unions that a reserve gate for the exclusive use of its employees would be set aside at each jobsite.

While at two of the jobsites appellants confined their picketing to the gates reserved for Bullen’s employees, at the third, picketing continued at entrances and other places used by the employees of union subcontractors. In addition union business agents visisted each job-site and advised employees of the various union subcontractors working at the same jobsites that they should not cross the picket lines. Employees who did not follow this advice were informed that union charges would be filed against them. As a result of these threats and other union activities, employees of the union business agents visited each job-sites stopped working, and Bullen’s construction projects were brought to a standstill.

Like Bullen, Boley is a general contractor operating in the Houston area. At one of its construction projects a subcontractor was using nonunion labor. A union of sheet metal workers not involved in this appeal began picketing to protest the wages paid by this subcontractor. When a reserve gate was established for the use of the offending subcontractor’s employees, picketing was confined to it. But some of appellant’s business agents visited the jobsite and ordered all union employees to cease working behind the picket line. Union charges were served upon those who continued to work contrary to this order. As a result the several union subcontractors on the Boley jobsite were all forced to stop work even though they had no dispute with appellants.

Thus at all of the construction sites in question the unions exerted pressure on Boley and Bullen by inducing members who were employed by neutral subcontractors to strike. Both companies filed charges with the National Labor Relations Board alleging that appellants were engaging in unfair labor practices violative of § 8(b)(4)(i)(ii)(B) of the National Labor Relations Act, the section proscribing secondary boycotts. Following a preliminary investigation, the regional director of the NLRB concluded that there was reasonable cause to believe the companies’ allegations. A complaint against the unions was issued. Pursuant to § 10 (l) of the Act, the regional director petitioned the district court for appropriate interim injunctive relief pending a final disposition of the charges before the Board.

The district court reviewed the stipulation of facts submitted by the parties and determined that the regional director did have reasonable cause to believe that appellants were violating the Act as charged. Appellants do not contest this determination. The facts to which the parties stipulated provide more than ample cause to believe that the unions were engaged in illegal secondary activity violative of § 8(b)(4). Although the line between primary and secondary activity is often especially difficult to draw when two employers are performing separate tasks on common premises, the courts have held time and again that tactics such as those employed by the unions in this case fall on the secondary side of the line.

Having properly concluded that the regional director’s petition was meritorious, the district court proceeded to fashion interim injunctive relief. The unions were enjoined from further picketing at any of the Bullen or Boley job-sites and’ from in any other manner inducing neutral employees to exert pressure upon their employers so as to force them to cease doing business with Bul-len or Boley. In addition the unions were required to notify all members employed by neutral subcontractors that the unions had no objection to their returning to work and that they were expected to man their jobs upon the request of their employers.

Appellants contend that the injunctive relief granted by the district court is overbroad insofar as it prohibits them from engaging in peaceful picketing in front of gates reserved for the exclusive use of the employees of the employers with whom they are at odds. They also protest the portion of the district court decree requiring them to order their striking members to report to work upon request. The regional director, on the other hand, takes the position that here the peaceful primary picketing was so enmeshed with the illegal secondary activity as to be inseparable from it. He argues that to enjoin the latter without at the same time enjoining the former would be useless since the picketing serves as a signal to all union employees to remain on strike until otherwise directed. In considering remedies the district court felt compelled to defer to the expertise of the regional director, and, relying primarily upon the authority of Milk Wagon Drivers v. Meadowmoor Dairies — a case in which the Supreme Court affirmed an injunction against picketing which was accompanied by flagrant violence — it adopted the broad decree he recommended.

It has often been said that the provisions of § 8(b)(4) reflect “the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in priiñary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” The statute prohibits all union activity “where ... an object thereof is forcing or requiring” an employer to cease doing business with “any person.” Although the language of § 8(b)(4) is quite broad, it bans only secondary activity. Peaceful primary activity and its normal incidents are not forbidden and in fact are specifically exempted from the section’s coverage.

Thus, whenever possible, a grant of equitable relief should be carefully tailored so as to permit the continuation of primary activities while stamping out the illegal secondary conduct and its deleterious impact. This principle was implicitly recognized by the Supreme Court in Youngdahl v. Rainfair, a case involving a union which had combined picketing with threats, intimidation, and acts of violence. A state court had enjoined all union activity for the immediate future, but the Supreme Court set aside the injunction insofar as it prohibited peaceful picketing. The Court plainly indicated that at least initially the lower court should have halted only the illegal activity; further relief could then be granted if proven necessary. Although there was no secondary activity in the case, Youngdahl nevertheless suggests that, if possible, equitable relief in a labor dispute should not be drawn so broadly as to limit the statutorily protected right of unions to bring peaceful primary pressure to bear on employers with whom they have grievances. By proceeding in this manner the courts will insure that both congressional objectives embodied in § 8(b)(4) will be recognized, namely, that of prohibiting secondary activity while permitting primary activity to continue.

In this case there is no evidence of the kind of violence condemned in Meadowmoor Dairies or indeed of any violence at all. Appellants’ activities, including both the primary picketing and the exertion of secondary pressures, were all peacefully conducted. In these circumstances we believe the district court abused its discretion in ordering a halt to peaceful primary picketing. As long as the unions restrict their picketing to the immediate vicinity of the reserve gates set aside for the use of the employees of the employers against whom their protests are directed, it should be allowed to continue in the absence of violence.

On the other hand insofar as the district court’s decree enjoined other union activity designed to coerce neutral employees and ordered the unions to inform these employees that the union no longer objected to a return to work, it constituted a proper exercise of the court’s discretion and is affirmed. This part of the decree was intended to halt the illegal secondary activity and to remedy its effects. In the first instance it should have been sufficient. If subsequent events demonstrate this relief to be inadequate — for instance if it becomes clear that the primary picketing operates as nothing more than a signal to neutral employees to remain on strike— then the district court can always respond in an appropriate manner.

Under the facts and in the circumstances disclosed by the record now before us, we modify the injunctive relief ordered by this district court insofar as it prohibits peaceful primary picketing, and that portion of the order is vacated and set aside. The remainder of its order is left intact, and the case is remanded to the district court for further proceedings not inconsistent with this opinion.

Modified, affirmed and remanded.

      . 29 U.S.C. § 158(b) (4) (i) (ii) (B).

      . 29 U.S.C. § 160 (l).

      . Markwell and Hartz, Inc. v. N.L.R.B., 387 F.2d 79 (5th Cir. 1967).

        See also N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951); N.L.R.B. v. Lafayette Building & Construction Trades Council, 445 F.2d 495 (5th Cir. 1971); Superior Derrick Corp. v. N.L.R.B., 273 F.2d 891 (5th Cir.), cert. denied, 364 U.S. 816, 81 S.Ct. 47, 5 L.Ed.2d 47 (1960), and N.L.R.B. v. Truck Drivers & Helpers, Etc., 228 F.2d 791 (5th Cir. 1956).

      . 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941).

      . N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953 (1951) and N.L.R.B. v. Lafayette Building & Construction Trades Council, 445 F.2d 495, 497 (5th Cir. 1971).

      . 29 U.S.C. § 158(b)(4).

      . Id.

      . See Chauffeurs, Teamsters, and Helpers Local No. 175 v. N.L.R.B., 111 U.S.App.D.C. 65, 294 F.2d 261 (1961).

      . 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957).


author: STEVENS, Circuit Judge.

text:
    MOBIL OIL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, and its Local Affiliate 7-507, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 72-1415, 72-1538.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 21, 1973.
    Decided July 17, 1973.
    Francis F. Sulley, Gilbert A. Cornfield, Chicago, 111., for petitioners.
    Peter G. Nash, Gen. Counsel, Jay E. Shanklin, Atty., N.L.R.B., Washington, D. C., for respondent.
    Before STEVENS, Circuit Judge, GRANT , Senior District Judge, and GORDON , District Judge.

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

       District Judge Myron L. Gordon of the Eastern District of Wisconsin is sitting by designation.

   STEVENS, Circuit Judge.

The question presented is whether employees have a statutory “right to representation” at fact-finding interviews conducted by management during an investigation of suspected theft of company property. Distinguishing a series of earlier cases, the Board held that such a right was created by § 7 of the National Labor Relations Act for employees who (a) personally requested Union representation at such interviews, and (b) reasonably feared that their jobs were in jeopardy. The Union contends that there is no statutory or logical basis for the Board’s limitations on the right, while the Company argues that the right itself does not exist unless created by contract. These arguments persuade us that the Board has adopted an untenable interpretation of § 7 of the Act.

I.

The facts are undisputed. In April, 1969, the Company’s security department began an investigation of unauthorized removal of Company property at its Cicero plant. On July 1, management decided to interview nine employees suspected of complicity. No decision to discipline any of the nine suspects was made before the interviews began. The Board found, however, that the Company had “decided that during the interviews no union representative would be permitted and that none would be allowed prior to the Company making any preliminary decision. Should preliminary action be taken with respect to any of the individuals, upon request, union representation at that point would be allowed.”

The first employee interviewed (Matthews) did not request representation. However, before the second interview commenced, a Union representative requested that he be permitted to attend the remaining interviews; this request was refused. In addition to the request by the Union representative, which could reasonably be interpreted as a timely request on behalf of all of the unit employees except Matthews, two of the employees (Burnett and Smith) individually asked to have a Union representative present. Each of these requests was also refused.

After the interviews had been concluded six employees were suspended, two returned to work, and one resigned. Subsequently, five of the six suspendees were discharged, the sixth was suspended for five days, and the “return to work” decision for the other two was confirmed. Later, the Union filed a grievance on behalf of four discharged employees: Matthews (who had made no request for representation); Burnett and Smith (who made individual requests) ; and Hill (who made no individual request but presumably was covered by the Union’s). The disposition of that grievance is not described in the findings.

Two months later the Union filed a charge relating to these four employees with the Board. On January 4, 1971, the complaint issued, describing the interviews and alleging two separate violations of the Act. Paragraph VIII alleged a violation of § 8(a)(1) by interfering with the exercise of § 7 rights of employees Matthews, Burnett, Smith and Hill; paragraph IX alleged a violation of § 8(a)(5) by derogating the Union’s status as exclusive collective bargaining representative.

Although the complaint clearly identified two separate theories, at the hearing before the Trial Examiner the parties apparently assumed that both legal issues turned on the factual validity of the general counsel’s contention that the real purpose of the interviews was to make a record to support disciplinary action that had already been decided upon, and therefore that the refusal to permit a Union representative to be present violated both § 8(a)(1) and § 8(a)(5) under the Board’s then recent decision in Texaco, Inc., Houston Producing Division, 168 NLRB 361. The Company argued that Texaco was distinguishable and that this case was controlled by Board decisions finding no unfair labor practice if the interviews from which the Union is excluded are plainly fact-finding in character and precede any decision on discipline.

The Trial Examiner’s characterization of the issues indicated that both the Union’s right to be present and the individual employee’s right to be represented by the Union depended on the same factual determination. He stated:

“The issue of whether the denial of a union representative during the interviews herein contravenes the Statute concerns itself with the prohibitions contained in Section 8(a)(1) and (5) of the Act, specifically, the interference, restraint, or coercion of employees in the exercise of their right to bargain collectively through a representative of their own choosing and the refusal to bargain collectively with such bargaining representative with respect to wages, hours, and other terms and conditions of employment.”

In his findings of fact, which were accepted by the Board, the Examiner concluded that “no decision to discipline, tentative or otherwise, had been made by the Company prior to conducting the employee interviews. . . .” He therefore held that the Company was under no obligation to permit Union representation during the interviews, and neither § 8(a)(1) nor § 8(a)(5) had been violated. He recommended dismissal of the entire complaint.

Although the case was treated by the Hearing Examiner as one involving the right to Union representation in bargaining with the Company — and therefore with the primary emphasis on § 8(a)(5) and § 9(a) of the Act — the Board’s decision rested on a different legal theory. The Board accepted the conclusion that there was no violation of § 8(a)(5) — and presumably no impairment of the Company’s obligation to treat the Union as the exclusive bargaining representative of the unit employees —but held that the denial of the requests by Burnett and Smith violated § 8(a)(1). Under the Board’s reasoning, the Company properly rejected the Union’s request to represent Hill and others, but improperly rejected the requests by Burnett and Smith to be represented by the Union.

The remedy selected by the NLRB is attacked by both the Union and the Company. The Board ordered the Company to cease and desist “from requiring that any employee take part in an interview or meeting without union representation, if such representation has been requested by the employee and if the employee has reasonable grounds to believe that the matters to be discussed may result in his being subject to disciplinary action.” App. 53. No reinstatement, back pay, or other relief for either Burnett or Smith was ordered.

The Board’s decision rests squarely on its reading of § 7 of the Act. Before considering the language and basic purpose of that section, it is appropriate to identify certain matters that are not involved on this appeal.

First, we are not concerned with the employees’ unquestioned right to bargain collectively for a contractual provision which would guarantee them Union representation at investigatory or, indeed, other interviews with management. Apparently that type of contractual protection was sought, but not obtained, by the Union in its 1970 negotiations with the Company. The employees’ right to use economic pressure to secure such a condition of employment is plainly guaranteed by § 7 of the Act.

Second, we are not concerned with the effort of individual employees to enforce er to ascertain the true character of the contractual terms which their collective bargaining agent has negotiated for them. Cf. NLRB v. Ben Pekin, 452 F.2d 205 (7th Cir. 1971). Our broad construction of § 7 in such a context is inapplicable here since, admittedly, the employees’ requests were unrelated to any contractual right.

Third, this is not a case in which there is any danger that the questioning was actually motivated by a desire to impair the employees’ right to organize, to detect Union activity, or in any way to influence collective bargaining negotiations. Considerations which may have influenced Board decisions in such cases are not present here.

Fourth, the record in this case does not present us with the task of reviewing the Board’s evaluation of the relative importance of the employees’ interest in fair procedures and protection from arbitrary discharge as opposed to management’s interest in effective investigation of inventory shortages and suspected dishonesty. Nothing in the Board’s opinion indicates that the Board itself made any attempt to balance the conflicting interests affected by its decision. On the contrary, its opinion simply explains the conclusion as mandated by the language of the statute.

Finally, we do not ourselves resolve the policy question which counsel have extensively argued in their briefs. From the employee’s standpoint, there are certainly valid and persuasive reasons for requiring Union participation in any management interview which may affect his further employment. Those reasons are particularly compelling when possible criminal charges lurk in the background. On the other hand, from the standpoint of management, and indeed the entire economy, the delays and costs associated with an adversary, or semi-adversary, fact-finding process may impose burdens on efficient management which a cost-conscious, competitive business cannot tolerate. Of course, this question may be answered in different ways by freely negotiated collective bargaining agreements. But whether to impose one answer on the economy as a whole presents a question of national policy that must be resolved by Congress.

Notwithstanding the breadth of the language contained in § 7, we do not believe Congress answered that question when it passed the Wagner Act in 1935. In a literal sense it may be true, as the Board argues, that if a Union representative attends an interview with an employee, the two are engaged in “concerted activity,” and also that their purpose is “mutual aid or protection.” But such parsing of a sentence apart from its historical context and the central purpose of the section is inappropriate. For it is well settled that certain activities which are described by a literal reading of § 7 are not in fact protected.

The “central purpose” of the National Labor Relations Act “was to protect employee self-organization and the process of collective bargaining from disruptive interferences by employers.” American Ship Building Co. v. NLRB, 380 U.S. 300, 317, 85 S.Ct. 955, 966, 13 L.Ed.2d 855. The basic thrust of § 7 is to enable employees to organize and to apply economic pressure against their employers in appropriate situations. Scholarly analyses of the reach of § 7 devote almost no attention to the language of the section, but instead consider the various situations in which the use of economic pressure by employees is appropriate. In our opinion, economic pressure may properly be applied to compel employers to follow acceptable investigatory procedures, or to determine the consequences of various kinds of misconduct, but economic pressure should not be a component of the fact-finding process itself. The requested Union representation at an investigatory interview is clearly not the kind of “concerted activity” with which § 7 is primarily concerned.

If we turn from the central purpose of § 7 to a consideration of its language, we also find the Board’s reading unacceptable. The relevant portion of the section provides:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, . . . .” 29 U.S.C. § 157. (Emphasis added.)

Nothing in that text indicates that the right to engage in a given concerted activity should be protected when asserted by an individual employee but not when a request is made by his bargaining representative. Nor does the text suggest the source of the Board’s view that the right of representation depends on whether the employee has any reasonable basis for believing that his job is in jeopardy. • The carefully tailored limitations on this procedural right were designed by the Board, not by any statutory mandate.

A fair interpretation of the broad purpose and language of § 7 persuades us that the novel “right to representation” recognized by the Board in this case is not a “concerted activity” within the meaning of the Act. This conclusion is supported by precedent, NLRB v. Ross Gear & Tool Co., 158 F.2d 607 (7th Cir. 1947); Texaco, Inc. v. NLRB, 408 F.2d 142 (5th Cir. 1969); and by history. If the Board’s interpretation of §§ 7 and 8(a)(1) correctly reflected the will of Congress, we are persuaded that this interpretation would have been recognized many years ago.

Enforcement denied.

      . The nine included six unit employees, a non-unit employee, and two supervisors. Except for one supervisor who resigned without being interviewed, each was interviewed separately by a two-man team consisting of one security agent who did the questioning and one administrative employee who served as a witness. Each employee was confronted with certain evidence and asked for an explanation. At the end of the interview, the security agent left the room to review the ease with the Plant Manager, Peckham, and Operation Superintendent Hahn. If Hahn and Peckman decided that suspension was appropriate, one of them would go into the interview room, give the employee a final opportunity to explain, and inform him of the decision. Higher management officials later reviewed the cases and made the final decision. Of the nine suspects, one was absent on July 2 and subsequently resigned without being interviewed ; five (including one supervisor) were fired, one was suspended for five days, and two were not disciplined.

      . Trial Examiner’s Decision, p. 3; App. 41.

      . Enforcement of the Texaco decision was denied. Texaco, Inc., Houston Producing Division v. NLRB, 408 F.2d 142 (5th Cir. 1969). The court held that the evidence was overwhelming that the interview was investigatory in nature and that there was absolutely no evidence that the purpose of the interview was to deal with the employee about the consequences of his alleged misconduct. As the court stated, the “function of the interview was to question Aloniz, not to bargain with him.” Id. at 144.

      . The Company relied principally on Chevron Oil Co., 168 NLRB 574; Jacobe-Pearson Ford, 172 NLRB No. 84; Dayton Typographical Serv. Ine., 176 NLRB No. 48.

      . Trial Examiner’s Decision, p. 8; App. 46.

      . Trial Examiner’s Decision, p. 10; App. 48.

      . “An employee’s right to union representation upon request is based on Section 7 of the Act which guarantees tire right of employees to act in concert for ‘mutual aid and protection.’ The denial of this right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of Section 8(a) (1) of the Act. Thus, it is a serious violation of the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy. Such a dilution of the employee’s right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action.” Board’s Decision at 2; App. 51. This language contains the Board’s entire analysis of the statute.

      . Conceivably, such factors, although not relied upon by the Board, might lend support to its order in Quality Manufacturing Co., 195 NLRB No. 42, enforcement pending (4th Cir.) 481 F.2d 1018. In this case, Quality Manufacturing was the sole authority on which the Board relied. That case is not, however, precisely in point. There an employee was discharged for refusing to attend an interview unless accompanied by a Union representative, and the company disciplined a Union officer for requesting to be allowed to attend. In this case, on the other hand, the employees did attend the interviews and were disciplined for stealing company property, not for requesting Union representation. Nevertheless, the Board’s decision in Quality Manufacturing was the first decision to apply the “mutual aid and protection” language in the interview context.

      . This comment is also applicable to the Board’s decision in Quality Marmfactur-

        ing, supra note 8, on which the Board relied in this ease. That decision likewise rests simply on the Board’s reading of § 7 rather than any exposition of policy.

      . The “mutual aid or protection” language of § 7, 49 Stat. 452, appeared earlier in § 2 of the Norris-La Guardia Act, 47 Stat. 70, and § 7 (a) of the National Industrial Recovery Act, 48 Stat. 198. The same language also is used in § 1 of the National Labor Relations Act, 49 Stat. 449-450, 29 U.S.C. § 151.
      Perhaps due to its earlier usage, the legislative history of the Act reveals no particular concern for the language. Rather, § 7 is spoken of generally: “The language restrains employers from attempting by interference or coercion to impair the exercise by employees of rights which are admitted everywhere to be the basis of industrial no less than political democracy. A worker in the field of industry, like a citizen in the field of government, ought to be free to form or join organizations, to designate representatives, and to engage in concerted activities.” S.Rep. No. 1184, 73rd Cong., 2d Sess. 4. In introducing his bill, Senator Wagner also spoke in broad terms: “The national labor relations bill which I now propose is novel neither in philosophy nor in content. It creates no new substantive rights. It merely provides that employees, if they desire to do so, shall be free to organize for their mutual protection or benefit. * * * It seeks merely to make the worker a free man in the economic as well as the political field. Certainly the preservation of long-recognized fundamental rights is the only basis for frank and friendly relations in industry.” 79 Cong.Rec. 2368. And, the committee report on the bill discussed §§ 7 and 8 together: “These sections are designed to establish and protect the basic rights incident to the practice of collective bargaining . . . Neither the National Labor Relations Board nor the courts are given any blanket authority to prohibit whatever labor practices that in their judgment are deemed to be unfair.” S.Rep. No. 573, 74th Cong., 1st Sess. 8.

      . See, e. g., Southern Steamship Co. v. NLRB, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246; NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627; NLRB v. Sands Manufacturing Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; NLRB v. Local No. 1229, IBEW, 346 U.S. 464, 477, 74 S.Ct. 172, 98 L.Ed. 195.

      . “The Wagner Act was designed to eliminate the guerilla warfare that, as Chapter I indicated, had accompanied struggles over organization in the United States. Section 7 of that act broadly affirmed the rights of self-determination and concerted activity, and § 8 implemented those rights by proscribing a broad range of employer activities that had operated to impede unionization. Furthermore, § 8, and subsection 8(1) [8(a)(1)] particularly, was deliberately elastic so that it could be used to strike down new forms of interference that were likely to develop and that might not fit neatly under the more specific provisions of subsections 2 through 5. H.R.Rep. No. 969, 74tli Cong., 1st Sess. 15 (1935). The sweeping and plastic character of of the restrictions on employer power was to confront the board and the courts with the task of reconciling legitimate employer interests and conflicting interests in employee self-determination and organization.” B. Meltzer, Labor Law: Cases, Materials, and Problems 892 (1970).

      . See, e. g., Getman, Protection of Economic Pressure by § 7 of the National Labor Relations Act, 115 U. of Pa.L.Rev. 1195 (1967).

      . Before this court, the Board’s counsel defended the decision as establishing a right of “presence” as opposed to “representation,” a distinction similarly lacking in statutory foundation.

      . In Ross, the employer had fired an employee for refusing to attend an interview without representation. The court found no unfair labor practice: “Assuming that an employee has a right to be represented by the union in the discussion or presentation of a labor grievance with an employer, such a right does not exist in the instant case. This is so, in our view of the matter, because there is no basis for the contention that such a grievance was involved.” 158 F.2d at 613. While that case turned on the right to present a grievance and did not examine the “mutual aid or protection” language, enforcement of the Board’s order would be inconsistent with the major premise underlying the essential holding of Ross— that there is no statutory right to representation at interviews not involving the presentation of a grievance. We have no reason to doubt the validity of the Ross decision.


author: BY THE COURT:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Paul SHELTON, Defendant-Appellant.
    No. 73-1776.
    United States Court of Appeals, Fifth Circuit.
    Aug. 2, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 591.
    William V. Hall, Jr., Decatur, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.
   BY THE COURT:

Shelton was convicted in federal district court of interstate transportation and concealment of a stolen motor vehicle, was sentenced to two concurrent five-year terms on February 2, 1973, and filed notice of appeal on March 5. The District Court granted Shelton release pending appeal on condition of $5,000 bond with surety.

On June 1 Shelton escaped from state custody during his trial on state charges of forgery. He was found guilty on the forgery charges, his state bond was forfeited and a bench warrant issued. He remains at large. On June 1, the same day that Shelton escaped, his pro se brief in the appeal from the federal conviction was filed in this court.

On June 18 the District Court held a show cause hearing in response to a motion by the U.S. Attorney to revoke or forfeit the appeal bond. Shelton did not appear at that hearing nor was he represented by counsel. The District Court determined that it lacked jurisdiction to order forfeiture of the bond.

The United States has now filed with this court a motion to revoke or forfeit Shelton’s appeal bond and a motion to dismiss the appeal on the basis that Shelton has absconded and defied the authority of this court. An attorney, who did not represent Shelton in the trial of the federal charge or of the state charge, has filed a response to the government’s motions contending that Shelton has neither breached the conditions of the federal bond nor evidenced any intent not to obey the judgment of this court.

An appellate court has the power and authority to dismiss the appeal of an appellant who has escaped from custody or jumped bail, the rationale being variously expressed as disentitlement of the appellant to call upon the resources' of the court to consider his claim, as discretion of the court to refuse to consider the claim of a litigant who indicates that he will comply with the court’s decree only if it is favorable, or as the lack of a justiciable controversy. Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Eisler v. United States, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, dism’d, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949); Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876); Johnson v. Laird, 432 F.2d 77 (CA9, 1970); United States v. O’Neal, 453 F.2d 344 (CA10, 1972); United States v. Dawson, 350 F.2d 396 (CA6, 1965). In this instance the custody fled is that of another sovereign and upon a charge unrelated to that embraced in the federal appeal. We conclude, however, that the escape from state custody, the subsequent state conviction, the revocation of the state bond, the fact that Shelton remains at large despite the existence of the state bench warrant, and the fact that the response filed in this court contains no indication of his whereabouts nor any affirmative averments that he intends to submit himself to jurisdiction of this court or of the State of Georgia, constitute sufficient probable cause for this court to conclude that appellant will not comply with orders of this court and will abide its decree only if favorable to him. We therefore conditionally revoke his appeal bond and conditionally dismiss his appeal. The cause is remanded to the District Court which shall schedule a prompt hearing at which appellant shall appear in person (and with counsel, if he wishes) and show cause why the conditional revocation of his bond and conditional dismissal of his appeal should not be made final. Copies of this order and of the District Court’s order setting the matter for hearing shall be served upon counsel who filed the response in this court, upon appellant’s counsel in his state trial, and a copy of each mailed to appellant’s last known address. A transcript of the District Court hearing shall be certified to this court.

The motions of the United States are conditionally granted and the cause remanded to the District Court for further proceedings as hereinabove provided.

      . While the jury was deliberating.

      . The attorneys who represented Shelton in the state proceedings advised the District Court that they did not represent Shelton in his federal appeal.

      . The conditions of the bond are that Shelton appear before this court, abide by and obey its orders, and surrender himself if his conviction is affirmed. There are no conditions limiting Shelton to remaining within any particular geographical area pending his appeal.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Dillard T. MADDEN, Jr., Appellant.
    No. 73-1132.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1973.
    Decided July 20, 1973.
    Certiorari Denied Nov. 12, 1973.
    See 94 S.Ct. 453.
    Richard L. Colbert, Kansas City, Mo., for appellant.
    Sheryle Randol, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   PER CURIAM.

This is an appeal from the conviction of Dillard T. Madden for possession with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a) (1). On this appeal Madden challenges the sufficiency of the evidence and claims that the trial court erred in refusing to permit certain cross-examination of the informer who was the chief Government witness. We affirm the judgment of conviction.

On July 13, 1972, LaFoy O. Thomas, an individual cooperating with the Kansas City Office of Drug Abuse Law Enforcement (DALE), met with DALE agents for the purpose of arranging the purchase of illegal drugs. Thomas, himself, had previously pleaded guilty to the illegal sale of narcotics and, at the time of the trial, was awaiting presentence investigation. Pursuant to the arrangements made with the DALE officers that day, Thomas and his automobile were thoroughly searched for the purpose of uncovering possibly concealed drugs. He was then given fifty dollars in prerecorded bills by the officers and proceeded by automobile from the DALE office to a predesignated location where it was believed that he could easily purchase illegal drugs. He was followed by two surveilling vehicles, manned by DALE agents.

Upon reaching his destination, Thomas stepped from his car and was approached by Madden. Both parties left the scene in Madden’s automobile, drove a short distance, and returned to the initial site where they parted company. All of their movements were observed by at least one of the DALE agents.

After Thomas had departed from Madden, he rejoined the DALE agent several blocks away and surrendered to him five capsules. It was his testimony that he obtained these five capsules from Madden in exchange for the fifty dollars during the brief interlude in which they were in each other’s company. The capsules were later determined to contain heroin.

Testimony regarding Thomas’ prior conviction and per diem payment from DALE was admitted at the trial. Testimony dealing with a past misdeed which had not resulted in a conviction was excluded. Madden’s counsel repeatedly attempted to secure the admission of this evidence which apparently related to Thomas’ cooperation with a federal agency in the purchase of illegal firearms. The trial court refused to permit this cross-examination on the basis that this was a wholly collateral issue that was so remote from the issues of the case and of such a complex nature that it would only mislead the jury from the real issues in the case.

Turning first to the sufficiency of the evidence, we note that an appellate court does not try a case de novo and does not determine the weight of the evidence. See e. g., United States v. Wright, 428 F.2d 445, 446 (8th Cir. 1970). Rather, it is for the fact finder, here the jury, to determine the credibility of witnesses and the weight of evidence. United States v. Cole, 449 F.2d 194, 197 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 991, 30 L.Ed.2d 806 (1972); United States v. Wright, supra, 428 F.2d at 446; United States v. May, 419 F.2d 553, 554 (8th Cir. 1969); Smith v. United States, 407 F.2d 356, 358 (8th Cir.), cert. denied, 395 U.S. 966, 89 S.Ct. 2113, 23 L.Ed.2d 753 (1969). Upon the finding of guilt by the jury, all reasonable inferences from the evidence are to be resolved in favor of the jury verdict. That verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Atkins, 473 F.2d 308, 310 (8th Cir.), cert. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1973); United States v. Matzker, 473 F.2d 408, 410 (8th Cir. 1973).

Here, the sufficiency of the evidence rests, to a large extent, upon the credibility of Thomas, but there is also substantial corroboration in the record. Thomas and his car were thoroughly searched before the purchase. No concealed drugs were found. He did not leave the sight of DALE officers subsequent to the search. The only person he met or came in contact with during the period of surveillance was Madden. Immediately after the rendezvous, Thomas produced five capsules of heroin to the DALE officers. The three DALE agents corroborated the informant’s testimony in all material respects except the actual exchange of the money and the capsules. Our review of this evidence, in light of the rules just enunciated, convinces us that the evidence was more than sufficient to support the guilty verdict.

Madden also urges the jury verdict be set aside on the ground that his ability to impeach the credibility of the Government’s informant was curtailed by the trial court. It is his contention that the Government’s case rested entirely upon the testimony of an informant whose credibility could have been impaired by the introduction of evidence relating to participation in a scheme of cooperation with a federal agency in the purchase of illegal firearms. Madden sought to elicit testimony relating to allegedly surreptitious conduct on the part of Thomas in the negotiation of the marked bills used in that scheme. However, no conviction arose from the facts that were the subject of this controversy and for this reason, the cross-examination was properly limited.

It has consistently been held that it is impermissible for a party to attempt to affect the credibility of a witness by showing that he has been accused of, charged with, or arrested for a crime of which he has not been found guilty. In Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948), the Court stated:

“Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. . . . Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness.”

The attempt to show merely an arrest or an accusation of misconduct in an effort to impeach a witness has been uniformly prohibited. Rizzo v. United States, 304 F.2d 810, 831 (8th Cir. 1962); Homan v. United States, 279 F.2d 767, 771 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960).

In the admission of such testimony, the trial court is vested with considerable discretion and will not be overruled unless it has abused that discretion. United States v. Cole, supra, 449 F.2d at 199; Coil v. United States, 343 F.2d 573, 578 (8th Cir. 1965); Davis v. United States, 229 F.2d 181, 185-186 (8th Cir. 1956); Marteney v. United States, 218 F.2d 258, 265 (10th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745 (1955).

We conclude that the evidence was sufficient to support the conviction and that the trial court did not abuse its discretion in limiting the cross-examination. The judgment of conviction is affirmed.


author: LAMBROS, District Judge.

text:
    Dorris F. DESHELES et al., Plaintiffs-Appellants, v. T.W. & C.B. SHERIDAN COMPANY et al., Defendants-Appellees.
    No. 72-1957.
    United States Court of Appeals, Sixth Circuit.
    Argued April 18, 1973.
    Decided Aug. 2, 1973.

      James A. Tuck, Detroit, Mich., for plaintiffs-appellants; Goodman, Eden, Millender, Goodman & Bedrosian by Paul A. Rosen, Detroit, Mich., on brief.
    John W. Mason, Detroit, Mich., for defendant-appellee, T.W. & C.B. Sheridan Co.; Martin, Bohall, Joselyn, Halsey & Rowe, Detroit, Mich., on brief.
    Before EDWARDS and MILLER, Circuit Judges, and LAMBROS , District Judge.

       Honorable Thomas D. Lambros, United States District Judge for the Northern District of Ohio, sitting by designation.

   LAMBROS, District Judge.

Plaintiff-appellant appeals from a verdict for the defendants-appellees in a products liability trial. The issue presented by this appeal is whether the admission of a hearsay statement of the only claimed eyewitness to the injury constitutes reversible error when the out-of-court declarant is available but does not testify.

Appellant sought recovery for the amputation of his right arm below the elbow by a power press manufactured by appellee Sheridan Company (“Sheridan”) and leased to appellant’s employer by appellee Greyhound Leasing & Financial Corporation (“Greyhound”). At trial, appellant claimed that the injury resulted when he was working near the press and his arm, which was raised to break a fall, entered an opening negligently left unguarded in the power press. Appellees defended on the basis of contributory negligence, claiming that appellant’s injury resulted when he intentionally placed his arm in the operating press to remove material from it, a procedure in contravention of operating regulations.

The evidence showed that only one person, Buddy Dean Casey, was working near appellant at the time of the injury, although a second worker, Leo Jankow-ski, had observed appellant cleaning the press several minutes prior to the injury. When interviewed by a company representative immediately after the injury occurred, Casey indicated that appellant intentionally placed his hand in the press. However, when later deposed in connection with the case, Casey denied having seen the occurrence. Although apparently available, Casey was never called to testify at trial.

Appellees’ reliance upon the out-of-court declaration by Casey is apparent in the first instance from appellee Greyhound’s opening statement at trial:

“I suggest to you that the facts on this case will show that the tragic occurrence to the Plaintiff in this case was occasioned solely by his own counsel and his own misfortune of slipping.
I suggest to you that a fellow employee, a Mr. Casey, from whom a stenographic statement was recorded by a Court Reporter a very short time after this accident, says he saw the plaintiff in this case reaching into the back of the machine.
Now, it is true that there are arguments both ways. The facts will also probably show that Mr. Casey says that he can’t remember making the statement. You will hear throughout this trial words such as Deposition; Pre-trial Discovery, other matters that are gone into. As you will hear, probably in the Deposition of Mr. Casey, that he forgot or doesn’t remember making that statement.

Although promising to the jury to introduce Casey’s testimony at trial, the appellees presented no evidence related to Casey’s statement except that which was elicited from appellant on cross-examination. After repeated inquiry regarding appellant’s failure to call Casey as a witness, appellee Sheridan’s counsel was able to obtain the italicized portion of statement which is in issue:

Q. You didn’t make any inquiry of Buddy Dean Casey when he stopped over just before his deposition whether he had seen you fall ?
A. No, sir, I didn’t discuss it with him, because I’m not interested in Buddy Dean Casey after he made his first statement. I heard about it at the plant.
Q. After he made what ?
A. The first statement at the plant.
Q. Can you tell us what that is?
A. No, sir, I can’t, because I never saw it.
Q. You mentioned that you are not interested in Buddy Dean when you heard about some statement at the plant?
A. Since I heard about it. Now, whether what I heard was true, I don’t know, because I never discussed it with the boy.
Q. Was that statement something that you didn’t like ?
A. Yes, quite a bit.
Q. Did you inquire when Buddy Dean Casey came over to your house why he made the statement ?
A. No, sir.
Q. Do you know what the statement is?
A. No, sir, I don’t.
Q. You don’t know that the statement was?
A. Nothing more than just what I heard the boys talk about around the plant.
Q. You say you don’t know what the statement is, but you dislike what you heard ?
A. Yes, sir.
Q. I don’t understand, Mr. Desheles. How can you dislike something when you don’t know the content of it, anything about the contents ?
A. It’s just the way it sounds to me. Mr. Tuck: Your Honor, I’d just like to place an objection. I am afraid we are asking this witness to testify to hearsay.
The Court: No. This is cross-examination. It is perfectly proper.
Mr. Tuck: Thank you, your Honor.
Mr. Mason: Thank you, your Honor.
Q. (By Mr. Mason). So, Mr. Desh-eles, there is some substance that, or something that Mr. Casey said that you don’t like; is that correct ?
A. Yes.
Q. I’d like you to tell me what this is that you don’t like ?
A. Well, I don’t like the idea—
Mr. Tuck: Your Honor, I am again going to object. I think what he is asking this witness to do is to testify to what Mr. Casey said, and I don’t think a proper foundation has been laid for that. And, in addition, it’s hearsay.
The Court: You are overruled.
A. I didn’t like the idea that he told —the boys was telling me that he said he saw me stick my arm in the press, because I know he couldn’t see that.

Appellant’s testimony regarding the rumor as to Casey’s previous statement was further emphasized in the closing argument by appellee Sheridan’s counsel. He not only discussed appellant’s testimony but also read to the jury that portion of the transcript which is italicized above, referring to it as “the testimony of Casey” and citing it with respect to the truth of the matters stated by Casey.

The admissibility of the statement in question is governed by federal procedural law. Faircloth v. Lamb-Grays Harbor Co., Inc., 467 F.2d 685 (5th Cir. 1972); Bosse v. Ideco Division of Dresser Industries, Inc., 412 F.2d 567, 569 (10th Cir. 1969); Bryant v. Sears, Roebuck Co., 435 F.2d 953, 955 (4th Cir. 1970). Generally, the federal courts have been liberal in permitting the admission of evidence if there is any theory justifying its admission and have given the trial judge broad discretion in making this determination. Rule 43(a), Federal Rules of Civil Procedure; Household Goods Carriers’ Bureau v. Terrell, 452 F.2d 152 (5th Cir. 1971). However, with regard to hearsay statements in the case of a person available to testify, the Advisory Committee to the Proposed Federal Rules of Evidence has taken the position that such evidence should be admitted only when the statement possesses “circumstantial guarantee of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial.” Advisory Committee’s Note to Rule 803, Proposed Federal Rules of Evidence, 56 F.R.D. 183 (1973). See also 5 Wigmore, Evidence §§ 1420, 1422 (3rd Ed.); G. & C. Merriam Co. v. Syndicate Pub. Co., 207 F. 515, 518 (2d Cir. 1913) (J. Learned Hand).

In this case, the admission of testimony from appellant regarding Casey’s prior statement as appellant heard of it from “the boys” was clearly erroneous and prejudicial. The statement had none of the circumstantial guarantees of trustworthiness recognized as exceptions to the hearsay rule in the case of an available witness. See Rule 803, Proposed Federal Rules of Evidence, 56 F.R.D. 183 (1973); Wigmore, Evidence §§ 1420 et seq. (3rd Ed.); McCormack, Law of Evidence §§ 223-304 (1954 Ed.). The error is especially harmful because the out-of-court declarant, Casey, was apparently the only eyewitness to the occurrence and key to the defense of contributory negligence. Moreover, appellee’s promise of testimony from Casey on the issue of contributory negligence together with the reference to appellant’s statement as the “testimony of Casey” in appellee’s closing argument compounded the prejudice.

The judgment of the District Court is, therefore, reversed and the case remanded for a new trial.

      . Counsel for appellee mentioned at the time of arguments on this appeal that there may' have been a mistake regarding a subpoena of Casey and his failure to appear. However, there is no evidence that appellees attempted to find out the reason for the nonappearance or to request a continuance so as to secure Casey as a witness.

      . Although the Proposed Rules are not presently binding, they have been approved by the Supreme Court and should therefore be given special consideration. See P.L. 93-12, 93d Congr., S. 583, 87 Stat. 9 (March 30, 1973) (delaying until further Congressional action the effective date of the Proposed Rules).