author: PER CURIAM: WINTER, Circuit Judge BUTZNER, Circuit Judge

text:
    Frank V. THOMPSON et al., Appellants, v. The SCHOOL BOARD OF the CITY OF NEWPORT NEWS, VIRGINIA and George J. McIntosh, Division Superintendent of Schools for the City of Newport News, Appellees.
    No. 74-1005.
    United States Court of Appeals, Fourth Circuit.
    Argued April 2, 1974.
    Decided May 31, 1974.

      James W. Benton, Jr., Richmond, Va. (Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, New York City, Henry L. Marsh, III, S. W. Tucker, Philip S. Walker and Hill, Tucker & Marsh, Richmond, Va., on brief), for appellants.
    Robert V. Beale, Newport News, Va. (Bateman & Beale, Newport News, Va., and Panos A. Yeapanis, City Atty., for Newport News, Va., on brief), for appellees.
    Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting en banc.
   PER CURIAM:

In Thompson v. School Board of City of Newport News, Va. (4th Cir. 1972) 465 F.2d 83, we remanded this proceeding, instituted to achieve the desegregation of the public schools of the City of Newport News, to the District Court with direction that the Court should consider and make findings on these two issues:

(1) Whether, after considering any alternate plan submitted by the plaintiffs, and taking into consideration the ages of the pupils involved, the problems of transportation and the educational program itself, any plan other than neighborhood zoning was practical for grades 1 and 2 in such school system?
(2) Whether groupings of grades 3, 4 and 5 in formerly identifiable white schools and grades 6 and 7 in formerly black identifiable schools under the plan of desegregation “were based on non-discriminatory grounds” ?

I.

The District Court, on remand, held a hearing, allowed the plaintiffs to submit their alternative plan for the assignment of pupils in the first and second grades, and, after considering the evidence submitted in support of that alternative plan, found that it, prepared concededly without consideration of the difficulties of transportation “as a factor” and without any substantial familiarity with the school district’s physical facilities or even special education programs, was neither “practical” nor “feasible”. It proceeded to review in some detail the facts developed in connection with the Board’s plan for neighborhood assignment of pupils in these two grades both at previous hearings and at the hearing held after remand, and, on that record, it reaffirmed the neighborhood plan previously developed, basing such finding on “three factors — (1) the transportation problems within the city, (2) the educational process, and . (3) the health and ages of the very young children who would be transported * * *.” Such findings are not clearly erroneous and must be affirmed.

II.

The District Court was instructed, also, that on remand, it should make findings on whether the assignments of grades 3 to 7 “were based on non-discriminatory grounds.” At the hearing held after remand, the School Board stated the reasons that led to its grouping of these grades. As explained by the school officials directly concerned in the drafting of the Board’s plan, these reasons were:

“ * * * Well, the original testimony pointed out the uniqueness of Newport News with regard to shape and the housing patterns that had developed in the city, the almost complete separation of the races.
With a ratio of thirty-six and a fraction to sixty-three and a fraction, or roughly 60-40 or three to two, it becomes obvious that if you are going to take two widely separated areas and mix them in any manner that would approach that, it is necessary to vacate 60 percent of the classrooms in the black area and 40 percent of the classrooms in the white area and transport to that enough blacks and whites to fill those classrooms and replace them.
So it became a three to two ratio.
Now, with five grades involved, that falls into a three to two pattern very readily. Anything else caused us— causes us very quickly to arrive at a point where we exchange white children for white children. So we tried to — this was why we originally selected two grades instead of three and had a two-five split to give us the three-two pattern.
The question of who should go first was a matter of choice.” (Tr. pp. 141-2.)

The District Court concluded that the grouping of these grades was satisfactorily explained” in the testimony of the school officials, and it accordingly found “that the distribution of the white and black children for grades three through seven was nondiseriminatory.” We find no error in this conclusion. We might observe as we did in the earlier opinion herein that the grade distribution as approved is similar to that approved in Allen v. Asheville City Board of Education (4th Cir. 1970) 434 F.2d 902; Clark v. Board of Education of Little Rock School Dist. (8th Cir. 1971) 449 F.2d 493, and Hart v. County School Board of Arlington Co., Virginia (D.C.Va.1971) 329 F.Supp. 953, aff., 459 F.2d 981 (4th Cir.), cited in the earlier opinion in this case.

The orders of the District Court, from which this appeal is taken, are accordingly affirmed.

Affirmed.

WINTER, Circuit Judge

(dissenting):

For the reasons set forth by Judge Butzner, in whose opinion I join, I, too, dissent. I add only a few comments of my own..

With respect to the apparently uneven burden on black pupils in grades 3 to 5, I think that the decision of the district court is presently indefensible. The inquiry and findings that we directed to be made in the last appeal were not made. Certainly if the choice to transport only black students in grades 3 to 5, made by a school board which historically has demonstrated its unwillingness to bring itself into compliance with Brown, was non-discriminatory, the basis for the choice is undisclosed. And, as Judge Butzner convincingly demonstrates, the present record does not demonstrate that the choice must be made on an all or none basis. Reversal and remand of this portion of the district court’s order should inescapably follow.

I would reverse and remand as to the treatment of grades 1 and 2 also. This may well be a school district in which total dismantling of a dual system of schools is not required under Swann, but the present record does not lead me to that conclusion. The record shows that, prior to 1971, over 22,000 of the total school population of 31,500 pupils were transported to segregated schools by bus. At the present time, over 25,000 of the approximately 28,000 students are bused; and over 50 percent of the students in grades 1 and 2 are transported to segregated classes. If grades 1 and 2 are to be totally desegregated, the total number of students to be bused will be increased. But just as neighborhood schools are not per se valid, so is busing not per se invalid. The length and time of transportation, with consequent burden and perhaps detriment to the students, are pertinent factors to determine the feasibility and necessity of busing. While we may speculate in a school district of this size, shape and demographic composition as to the distance and time of busing necessary to achieve a totally unitary system at grades 1 and 2, the fact is that the district court has made no findings in this regard. Logic and a sound basis of decision require a survey and findings of the burden of present busing, past busing and future busing under various plans of integration before any conclusion could be drawn that achievement of a totally unitary system at grades 1 and 2 would or would not be deleterious to the health of the students involved. And, again, even if it is concluded that achievement of a totally unitary system should not be ordered, the achievement of some desegregation in grades 1 and 2 should not go unexplored.

Finally, I record my suspicion of the basis on which the district court approved retention of a dual system' for grades 1 and 2. It relied heavily on the testimony of Dr. Hogge, a pediatrician, to the effect that the health of students in kindergarten and the first and second grades would be adversely affected if they were not permitted to attend neighborhood schools. But as I read the testimony of Dr. Hogge, it was — beside the obvious that there are limits to the physical endurance to children in grades 1 to 7, and if transportation, coupled with the usual school day, exceeded those limits, the effect would be deleterious to the child — that the effect of transportation on the physical and mental health of a child depends upon whether he is happy which, in turn, depends upon whether he is transported to a school “of his choice or his parents’ choice.” If the child is unhappy, i. e., not transported to a school of his choice or his parents’ choice, “then it follows from there, as the night does the day, that you’re just going to have a poor situation.” Acceptance of Dr. Hogge’s thesis, it seems to me, would be to require application of the equal protection clause to depend upon a plebecite by parents. This is a novel doctrine which I do not think finds support in the authorities.

BUTZNER, J., joins in this dissent.

BUTZNER, Circuit Judge

(dissenting) :

Under familiar principles, the burden is placed on a school board which formerly operated statutorily segregated schools to establish that it has eliminated its dual system. Green v. County School Board, 391 U.S. 430, 437, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Eighteen months ago we found that the record in this case was insufficient to show compliance with this well established rule, and we remanded the case for reexamination of the school board’s plan and for consideration of alternative feasible plans for the assignment of pupils to elementary schools. Thompson v. School Board of the City of Newport News, Virginia, 365 F.2d 83 (4th Cir. 1972). Both our past and present inquiries are directed at two aspects of the problem: first, the propriety of not integrating grades 1 and 2, and second, whether the grouping of the other elementary grades was based on nondiscriminatory grounds.

The district court’s findings and conclusions respond in great detail to our inquiry concerning grades 1 and 2. Given the distance and time required to bus these young children from some white neighborhoods to some black neighborhoods and vice versa, the court’s approval of the plan would probably not have been error if this were its only questionable feature. See Swann v. Board of Education, 402 U.S. 1, 30, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (dictum). However, the assignment of pupils in the first two grades cannot be viewed in isolation from the assignment of other elementary pupils. And this leads us to the more difficult aspect of the problem —the justification for the disparate treatment of white and black pupils in the other elementary grades.

The district court made no attempt to state findings and conclusions to explain its approval of transportation of nearly all black children in grades 3 through 5 out of their neighborhoods while most white children are not required to leave their neighborhood schools until they attend grade 6. The court simply stated that the testimony of two school officials satisfactorily explained the methods utilized for assignments. Without giving any reasons, the court added that it found the distribution of pupils for grades 3 through 7 was nondiscriminatory.

I find this part of the district court’s memorandum both procedurally and substantively inadequate. It requires the court of appeals to initially make findings and provide a rationale of decision. Consequently, it either denies the parties realistic appellate review or thrusts this burden on the Supreme Court. The absence of findings and conclusions in this case fully demonstrates the wisdom of generally requiring compliance with Rule 52(a).

Counsel for the school board selected an excerpt from the testimony of one witness as the finding that filled the vacuum left in the district court’s memorandum decision. The majority has adopted this excerpt as the pertinent finding of fact on which its opinion depends. No one, however, has identified the relevant testimony of the other witness to whom the district court adverted. It is fair to assume, therefore, that the testimony quoted in the majority opinion is the only evidence tending to justify the disparate treatment of white and black pupils in grades 3, 4, and 5.

The district court’s opinion substantively errs because the excerpt from the testimony which undergirds it is based on a faulty premise. The school officials treated each grade as a monolithic unit. Actually, the record shows that each grade is composed of many classes, but no explanation is given why classes for grades 3, 4, and 5 in predominately black schools cannot be paired or clustered with predominately white schools in adjacent or nearby zones. While this would not affect all pupils in the elementary grades, it would allow some of the black children in grades 3, 4, and 5 to enjoy the advantages the school board claims for neighborhood schools, a privilege now accorded only to white children in these grades.

The excerpt from the testimony shows that it was a matter of choice for the school board to start busing all of the black children out of their neighborhoods at grade 3 while leaving white children in their neighborhoods until grade 6. But the excerpt, and the opinions of both the district court and this court fail to furnish any rational explanation for this choice.

It is, of course, not feasible to equalize transportation time and distance for each child, and we have never insisted that this be done. But previously when a charge was made that the burden fell more heavily on one race, we have examined the facts in the light of the explanation offered by the board. See, e. g., Hart v. County School Board of Arlington County, 459 F.2d 981 (4th Cir. 1972); Allen v. Asheville City Board of Education, 434 F.2d 902 (4th Cir. 1970). And implicitly we have subscribed to the maxim, “the burden [of desegregation] on all students, black and white, should be as equitable as possible.” Clark v. Board of Education of Little Rock School Dist., 449 F.2d 493, 499 (8th Cir. 1971). The instant case departs, I believe, from our sound practices and precepts.

Because this record engenders doubts about whether black and white pupils have been treated evenhandedly, I would again vacate the judgment of the district court. This time, however, I believe specific instructions would more likely be productive. I would remand the case with directions that the court ascertain a suitable maximum distance and time for busing pupils enrolled in the elementary grades. Operating within this framework, the district court should then determine whether an equal or greater degree of integration could be achieved in elementary classes without placing an undue burden on children of one race. Moreover, busing within workable parameters may facilitate integration of a number of classes in grades 1 and 2.

The school board has twice failed to affirmatively establish that it has achieved maximum integration considering the peculiar geographic complexities of the city. Therefore, I would authorize the district court to tax as costs against the board a reasonable fee for a consultant, selected by the plaintiffs, to devise a plan or plans better calculated to comply with the law.

WINTER and CRAVEN, JJ., join in this dissent.

      . Dr. Strickler, who prepared on behalf of the plaintiffs the alternative plan, testified that, in designing the plan, he “eliminated * * * as a factor” any difficulties of transportation and justified his action by stating that, in his opinion, “time and distance of travel” were not proper matters for consideration even when preparing a plan for pupils as young and immature as first and second grade students. Under his plan, some of these pupils would have had travel time, including loading time, of almost two and a half hours a day, and the mean travel time for all such pupils in the school system would have been almost two hours. It was Dr. Strickler’s view, as testified to by him, that transportation of pupils in the first and second grades in order to establish a fixed ratio in each school, regardless of “time and distance of travel”, was the overriding eonsideration in preparing a plan of desegregation. Cf., however, Northcross v. Board of Education of Memphis (6th Cir. 1971), 444 F.2d 1179, 1183, and 466 F.2d 890, cert. denied, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed. 2d 313 (1974). It was, also, suggested that these elementary pupils were already being bussed in substantial numbers. This argument would disregard the fact that this bus-sing was within the neighborhood zones and involved no considerable distances or time; the transportation was not from the tip of the uniquely shaped school district where the so-called black pupils were concentrated to the distant zones of the areas where the greater number of whites lived (the mean distance would be over twelve miles).

      . 465 F.2d at p. 85.

      . After i)araphrasing our inquiry pertaining to elementary grades 3 through 7, the court wrote:
      “Through testimony from Messrs. McIntosh and Greenwood, the reasons for the method utilized were satisfactorily explained and the Court finds that the distribution of the white and black children for grades three through seven was nondiscriminatory.” Thompson v. The School Board of the City of Newport News, Virginia, 363 F.Supp. 458 (E.D.Va.1973).
      This paragraph constitutes the entire district court findings of fact and conclusions of law on this issue.

      . Fed.R.Civ.P. 52(a) provides in part:
      “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon . . . . ”
      A leading commentator on the rules has stated, “The requirement that the trial court find the facts specially and state separately its conclusions of law is mandatory and must be fairly observed.” 9 O. Wright & A. Miller, Federal Practice and Procedure: Civil § 2574, at 690 (1971).

      . A number of cases deal with the distance and time required for busing. The most notable is Swann v. Board of Education, 402 U.S. 1, 30, 91 S.Ct. 1267, 1283, 28 L.Ed.2d 554 (1971), where the Court said :
      “The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and transported to the schools they were to attend. The trips for elementary school pupils average about seven miles and the District Court found that they would take ‘not over 35 minutes at the most.’ This system compares favorably with the transportation plan previously operated in Charlotte under which each day 23,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be' required to employ bus transportation as one tool of school desegregation. Desegretion plans cannot be limited to the walk-in school.”
      The record discloses that as recently as 1971 the City of Newport News transported more than 22,000 pupils to segregated schools. Even now, about one-half of the first and second grade pupils are being transported to segregated classes. In formulating its criteria for maximum allowable distance and time, the court may take into consideration the characteristics of this transportation.


source: Caselaw Access Project

author: SNEED, Circuit Judge:

license: Public Domain

text:
    ILWU LOCAL 142, Appellee, v. LAND & CONSTRUCTION CO., INC., Appellant.
    No. 73-2222.
    United States Court of Appeals, Ninth Circuit.
    May 30, 1974.

      William F. Crockett (argued), of Crockett & Crockett, Wailuku, Maui, Hawaii, for appellant.
    James A. King (argued), Honolulu, Hawaii, for appellee.
   OPINION

Before DUNIWAY, CHOY and SNEED, Circuit Judges.

SNEED, Circuit Judge:

ILWU 142 brought this action against Land & Construction Co., Inc. to enforce an arbitration award growing out of the grievance of employee Philip Freitas. Land & Construction Co., Inc. contends that the award is void because of the failure of both ILWU 142 and the arbitrator to comply with Section 9(a) of the Labor Management Relations Act, 29 U.S.C. Section 159(a), and that the arbitrator lacked the power to make the award sought to be enforced. The district court, confronted with motions for summary judgment by both plaintiff and defendant, granted the plaintiff’s, but the award was “referred back to the said arbitrator for the purpose of determining the exact amount of money due grievant Philip Freitas.” We believe this action should be affirmed.

To understand the defendant’s contention concerning Section 9(a) of the Labor Management Relations i\ct, it is necessary to describe the circumstances leading to the arbitration award1. ILWU 142 entered into a collective bargaining agreement with Land & Construction Co., Inc., in April, 1968. On June 26, 1970, the employee Freitas was laid off by his employer, Land & Construction Co., Inc. because of a decline in the volume of work available to it. Plaintiff, ILWU 142, promptly took the preliminary steps of the grievance procedure outlined in Section 16 of its collective bargaining agreement with the defendant, Land & Construction Co., Inc., asserting that Freitas’ layoff violated his seniority rights as established by the agreement. These preliminary efforts were not successful and led to a demand on July 21, 1970 for arbitration in accordance with the terms of Section 16. In the meantime, Freitas looked for work and on July 22, 1970 was employed by Concrete Industries. By August 4, 1970 the plaintiff and defendant had agreed upon an arbitrator from the panel established by Section 16. On or about the same time the defendant’s business improved, and all employees who had been laid off in June, 1970, except Freitas, were called back to work. The defendant asserts that Freitas would have been recalled at that time had he not been employed elsewhere.

During August, 1970 efforts to set a hearing date for arbitration were unsuccessful. On August 31, 1970 the collective bargaining agreement between the plaintiff and defendant expired by its own terms. September, 1970 was marked by further efforts to set a hearing date which by early October appeared to have been successful.

This appearance proved to be false. On October 7, 1970 the plaintiff wrote the defendant that it was no longer the collective bargaining agent for the defendant’s employees, but that it had not withdrawn from the arbitration of the Freitas grievance. The defendant immediately questioned the arbitrator about whether the plaintiff could continue to represent Freitas at the arbitration hearing and suggested the hearing tentatively be set for November 7, 1970. The plaintiff objected to a delay, but for reasons not necessary to detail here, the hearing was delayed until May 13, 1971. Suffice it to say that during this long period of delay the defendant did not vigorously attempt to expedite the hearing.

In the meantime, Freitas ceased to work for Concrete Industries and shortly thereafter took employment with the State of Hawaii. He has been continuously employed by the State since January 1, 1971. Also, in late 1970 the Defendant recognized the Construction & General Laborer’s Union, Local No. 368, AFL-CIO (hereinafter designated as Laborer’s) as the bargaining agent for its employees. A collective bargaining agreement between the defendant and this union was signed on January 26, 1971. The plaintiff and arbitrator were informed of this agreement.

At the May 13, 1971 hearing the defendant contended that the plaintiff had been supplanted by the Laborer’s Union, and on May 19, 1971 the defendant’s counsel wrote counsel for the plaintiff in pertinent part as follows:

It is our opinion that the company will be guilty of an unfair labor practice if it should proceed with arbitration of this grievance with the ILWU and without the consent of the Construction & General Laborer’s Union. The Company therefore insists that the grievant and the ILWU obtain the consent of the new bargaining agent to the arbitration proceeding. Until this is done, the Company will not proceed with arbitration, nor will the Company recognize any award made by the arbitrator.

The letter then outlined three alternatives available to the plaintiff and Freitas, viz., (1) obtain the consent of General Laborer’s Union, Local 368, (2) obtain an order to compel arbitration, or (3) proceed with arbitration with the defendant reserving his rights on the jurisdictional issue. A similar letter was sent to the arbitrator.

The decision of the arbitrator was rendered on June 7, 1971. In it he held that because the plaintiff was the authorized representative of the defendant’s employees in June, 1970 it was obligated to present the Freitas grievance and that the agreement of the defendant with the Laborer’s Union did not have retroactive effect. In this manner jurisdiction to arbitrate and make an award, was asserted. With regard to the merits of the grievance, it was held that the layoff of Freitas was not justified, that he should be reinstated “and that he be paid at his usual rate of pay from June 26, 1970 to date, less whatever sums he may have received from other sources since that date.” The defendant, in accordance with its letters of May 19, 1971, refused to recognize the award, and the plaintiff’s complaint was filed on July 2, 1971.

I.

There is no doubt that the arbitrator had the power to arbitrate the grievance of Freitas notwithstanding the termination of the collective bargaining agreement between the plaintiff and defendant. Assuming for the moment that no collective bargaining agreement with Laborer’s had been executed, there is nothing in the agreement between the plaintiff and defendant that would justify a holding that the decision of the arbitrator, as modified by the district court, manifested an infidelity to that agreement. The principles that must be followed in reviewing an arbitrator’s award in a labor dispute were made clear in the first Supreme Court cases interpreting labor arbitration clauses. This group of cases is known as the Steelworkers Trilogy and consists of United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In these cases the Supreme Court made clear that the courts were not to undertake a plenary review of an arbitrator’s interpretation of the contract. In Warrior the Court indicated that a dispute was subject to arbitration “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” 363 U.S. at 582-583. Enterprise established a similar approach with respect to remedies that might be fashioned by the arbitrator.

When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen 'may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to .this obligation, courts have no choice but to refuse enforcement of the award.

363 U.S. at 597.

There is nothing in the April, 1968 agreement between Land & Construction Co., Inc. and ILWU which terminates the Section 16 grievance procedure upon the expiration of the agreement. Nor is there any provision limiting back pay to a period ending with the expiration of the collective bargaining agreement. The only explicit provision in the agreement dealing with back pay relates to improper discharges and disciplinary suspensions and not to temporary layoffs. Even this provision limits back pay only to that pay “lost because of the discharge or suspension.” It is obvious that back pay lost because of improper discharge or suspension could exceed that which accrues to the date of termination of the collective bargaining agreement. It follows that the arbitrator was faithful to the April, 1968 agreement in holding that its termination neither ousted him of jurisdiction to arbitrate nor limited back pay to that accruable to the date of termination.

II.

The defendant does not seriously question these conclusions. His focus is upon the effect of the January, 1971 agreement in which Construction & General Laborer’s Union, Local No. 368 replaced the plaintiff as the bargaining agent for the defendant’s employees. Modifying the position taken in his May 19, 1971 letters in which he insisted that Laborer’s must consent to arbitration, defendant contends that jurisdiction to arbitrate a dispute arising under the April, 1968 agreement is dependent on the new bargaining agent being given an opportunity to participate in the arbitration proceedings.

In part, this contention rests upon the defendant’s reading of Section 9(a) of the Labor Management Relations Act which states:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.

We do not agree with defendant’s interpretation. The legislative history of this Section demonstrates that it was enacted to limit to a degree the monopoly held by the properly designated bargaining representative in grievance matters. S.Rep.No.573, 74th Cong., 1st Sess., May 1, 1935; H.R.Rep.No.510, 80th Cong., 1st Sess., June 3, 1947; Comment — The Labor-Management Relations Act of 1947, 42 Ill.L.Rev. 444, 450-52 (1947); Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 299-303, (1948) ; Case Note, 63 Harv.L.Rev. 361 (1949) . Individual employees or groups of employees are permitted to present grievances, and any adjustments resulting therefrom are entitled to protection so long as they are not inconsistent with the terms of the appropriate collective bargaining agreement and provided the proper bargaining representative has been given the opportunity “to be present at such adjustment.” Putting aside the fact that “an opportunity to participate in the arbitration proceedings” may be more extensive than the “opportunity to be present at such adjustment” required by Section 9(a), it is clear that this Section is applicable only if the arbitration of the Freitas grievance can be considered to be the presentation of a grievance by an individual employee. It was not such a presentation. We have already indicated that it was not such under the April, 1968 agreement with the plaintiff notwithstanding the termination of that agreement prior to the arbitration hearing. Nor can it be said that Laborer’s swallowed the plaintiff so as to require treating Laborer’s as the continuation of the plaintiff under another name and the plaintiff as a volunteer assisting Freitas. Cf. Carpinteria Lemon Ass’n v. National Labor Relations Board, 240 F.2d 554 (9th Cir., 1956) cert. denied, 354 U.S. 909, 77 S.Ct. 1295, 1 L.Ed.2d 1427 (1957). See, Note, Labor Law — Rights and Duties of Successor Unions — General Dynamics Corp., 11 B.C.Ind. & Com. L.Rev. 1006, 1010 (1970).

In our view, the arbitration can be held to be such a presentation only if the Laborer’s contract requires it to be so held. Defendant insists such a holding is required and in so doing relies heavily upon McGuire v. Humble Oil & Refining Co., 355 F.2d 352 (2d. Cir., 1966), cert. denied, 384 U.S. 988, 86 S.Ct. 1889, 16 L.Ed.2d 1004 (1966), and three later cases, two of which are from this Circuit. See Stove, Furnace & Allied Appliance Workers v. Gaffers & Sattler, Inc., 470 F.2d 860 (9th Cir., 1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1927, 36 L.Ed.2d 410 (1973); International Ass’n of Machinists v. Howmet Corp., 466 F.2d 1249 (9th Cir., 1972); Southern Conf. of Teamsters v. Red Ball Motor Freight, Inc., 374 F.2d 932 (5th Cir., 1967). In each of these cases arbitration under an earlier collective bargaining agreement was denied because of the strong probability that such arbitration would foster labor unrest with respect to matters which went to the heart of a later collective bargaining agreement with a different union. The two collective bargaining agreements existed because the employees of a seller of all or a portion of the business were represented by a union other than the one representing the employees of the purchaser. Assuming arguendo that the principle of these cases is applicable to the facts of this case, a careful examination of the two collective bargaining agreements here involved does not lead us to believe that enforcement of the arbitrator’s award will foster labor unrest or create a risk to the defendant of being guilty of an unfair labor practice.

Although the two agreements differ in a number of significant ways, we find nothing in the Laborer’s agreement that suggests either that the defendant should not proceed to conclusion with any properly commenced arbitration under the ILWU 142 contract or that the arbitrator’s award conflicts with any provision or policy of the Laborer’s agreement. It is true that the seniority provisions of the two contracts differ in language, but it is also true that Section 18 of the Laborer’s agreement requires that the employer give preference in hiring “to former employees who are available for rehire.”

Our conviction that enforcement here will not promote labor unrest draws considerable strength from the belief that had the defendant feared such unrest it would have made some effort to bring this arbitration to the attention of Laborer’s and to secure their intervention in some manner. The formalism of its insistence that either the arbitrator or the plaintiff notify Laborer’s and obtain its consent or permit its participation does not suggest the actions of an employer concerned with the possible wrath of its employees’ present bargaining agent. Rather it conveys the spirit of an artful tactician determined to surrender slowly. While this spirit is not without its value, it does not encourage us to believe that enforcement of' this award will jeopardize the defendant’s relations with its employees or their present union. It follows that the laborer’s agreement does not require that the' presentation of the Freitas grievance under the circumstances of this case be considered as the presentation of an individual employee or group of employees under Section 9(a) of the Labor Management Relations Act. We express no opinion concerning the proper disposition of this case were Laborer’s actively asserting its responsibility for the plaintiff’s obligations under the April, 1968 contract. Cf. Petrowitz, The Effect of a Change of Bargaining Representative, 10 Lab.L.J. 845 (1959).

III.

All that remains is a remnant of the back pay issue. We already have recognized that the April, 1968 contract did not limit the power of the arbitrator to a back pay award covering a period that closes with the termination o'f that contract. The defendant contends that fidelity to the April, 1968 contract requires that back pay be limited to the period commencing with the wrongful layoff of Freitas and ending with the recall of other workers on or about August 4, 1970. ' This position is based on an inapposite provision of the April, 1968 contract pertaining “to discipline or discharge by the Employer for insubordination, pilferage, drunkenness, incompetence, failure to perform work as required, violation of the terms of this agreement, or failure to observe safety rules and regulations . . . . ” As already indicated, the provision limits back pay (with respect to disciplinary discharges or suspensions) to that pay lost while the discharge or suspension is in effect. Were we inclined to believe this provision applicable to the Freitas grievance, it could be argued strongly that since Freitas in fact has never been recalled by the defendant, his period of suspension ended at the date of the arbitrator’s award. We prefer, however, to treat this provision as having no relevance to the back pay of Freitas because he was laid off for reasons unrelated to employee discipline.

Our guidance is derived from the Supreme Court’s decision in Warrior and Enterprise, supra. Calculating back pay to the date of the arbitration award manifests no infidelity to the collective bargaining agreement between the plaintiff and defendant. Nor does the trial court’s remand for the purpose of determining the exact amount due Freitas represent an unwarranted judicial intrusion into the arbitrator’s interpretation of the contract. The judgment of the trial court is

Affirmed.


author: BRIGHT, Circuit Judge.

text:
    Roger Lee McQUEEN, Appellant, v. Harold K. SWENSON, Warden, Appellee.
    No. 73-1278.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1973.
    Decided June 4, 1974.
    Rehearing and Rehearing En Banc Denied July 18, 1974.

      Michael Gross, Clayton, Mo., for appellant.
    Steven D. Hoyne, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       WILLIAM C. STUART, District Judge, Southern District of Iowa, sitting by designation.

   BRIGHT, Circuit Judge.

Roger Lee McQueen was charged with first-degree murder in the shooting death of one George Francis in the fall of 1963 and was tried in the Circuit Court of the City of St. Louis, Missouri, approximately a year later. On October 2, 1964, McQueen was found guilty of second-degree murder by a jury and subsequently sentenced to life imprisonment. After various appeals and collateral attacks on his conviction in state courts, he petitioned for a writ of habeas corpus under 28 TJ.S.C. § 2254 in the United States District Court for the Eastern District of Missouri. Petitioner contended that his right to effective assistance of counsel — guaranteed to him in his state prosecution by the fourteenth amendment — was violated by his trial counsel’s total failure to investigate the facts of the case.

The district court denied the petition without an evidentiary hearing in McQueen v. Swenson, 357 F.Supp. 557 (E.D.Mo.1973), and this appeal followed. We granted a certificate of probable cause, appointed counsel, and heard oral argument in this case because it presents a serious question about the parameters of the constitutional right to effective assistance of counsel. For reasons stated below, we reverse and remand for further proceedings.

I.

A brief background of the testimony adduced at trial is useful. It was undisputed at the original trial and is undisputed in the instant proceedings that petitioner shot and killed a black homosexual, named George Francis, in the latter’s apartment in St. Louis, Missouri, on the morning of October 23, 1963. At the original trial, McQueen relied on self-defense as a justification for the homicide, while the state spun a web of circumstantial evidence around him to negate that possibility.

According to the defense theory, McQueen had known the deceased since 1960. When McQueen was released from prison in 1963 after serving time on a narcotics charge, George Francis, who was employed as a librarian, offered to find him work. At the deceased’s invitation, McQueen visited Francis’ apartment late on the night before the shooting, but, for some reason, on arrival was told to return the next morning. When he did so, according to petitioner’s version of the events, he encountered Francis in a drugged and drunken rage. At that point, the deceased — who outweighed McQueen by 60 or 65 pounds— allegedly attacked the petitioner with a long metal shoehorn, threatening some sort of homosexual rape as revenge for McQueen’s unintentional precipitation of a quarrel between Francis and the latter’s homosexual lover, one Donald Cole. According to McQueen, when the deceased lunged towards him menacingly, McQueen picked up a revolver which had been lying on a nearby dresser top and shot George Francis. Because Francis kept coming towards him, McQueen shot him again, and then once again when neither of the first two shots halted the attack. Thereafter, McQueen asserted, he consumed a large quantity of narcotics which were in the deceased’s bedroom, but had only a vague recollection of his subsequent actions during the next few days.

Other than the petitioner, there was no one alive at the time of trial who saw the actual shooting. McQueen alone testified for the defense, but the state— through a parade of 26 witnesses — attempted to establish five propositions which seemed to destroy petitioner’s self-defense theory. These propositions and the proof from which they were extrapolated are as follows:

1) McQueen brought the murder weapon with him to the deceased’s apartment. The revolver was undisputedly the property of one Mary Zoeller. At the trial she stated that she did not know the deceased, but had met the petitioner through her brother, Dr. Conrad Zoeller. She testified that she kept the pistol under the front seat of her car, that she had vaguely mentioned the existence of the pistol to McQueen, and that she discovered it missing several days after the shooting. As corroboration for the theory that McQueen stole the pistol and brought it with him to the deceased’s apartment, the state introduced two shirts belonging to Mary Zoeller’s brother — one of which was found in Francis’ apartment and the other in McQueen’s possession when he was apprehended. Dr. Zoeller testified that his sister took his shirts to the laundry regularly and that these shirts must have been taken from her ear.

2) McQueen went to the deceased’s apartment for the purpose of robbing him. Various members of the deceased’s family testified that Francis owned an expensive, diamond-encrusted wristwatch, which he took great pride in and which was seen in his possession prior to his death. Other witnesses testified that they observed the petitioner wearing such a watch on October 23, 24, and 25, 1963. McQueen admitted the theft, but claimed that the theft was unpremeditated and occurred almost as a reflex action after the shooting.

3) The shoehorn allegedly used by Francis to attack McQueen never existed. Several police officers who had investigated the scene at the deceased’s apartment testified that in searching the area they found no such shoehorn.

4) McQueen revealed a consciousness of his guilt by fleeing the state. Testimony was introduced that, around midnight on October 24, petitioner approached a motorist named James Fisk at a roadside cafe in Independence, Kentucky, and brandished a revolver, ordering Fisk to drive him towards Louisville. The car was stopped at a roadblock near Covington, Kentucky, and, after attempting to force a county patrol officer to accompany him, petitioner was disarmed and taken into custody.

5) McQueen’s self-defense theory was concocted long after the murder was committed. Police officers, who interrogated McQueen after his apprehension, testified that, in response to the question, “Were you ever in the presence of George Francis?”, McQueen answered: “Not to the best of my knowledge.” The officers also testified that in response to the question, “Did you shoot George Francis?”, McQueen denied it, saying, “Not to the best of my knowledge.”

Based upon this circumstantial evidence, the jury found McQueen guilty of second-degree murder.

II.

In 1969, an evidentiary hearing was held in connection with McQueen’s Rule 27.26 motion in state court, collaterally attacking his conviction on the ground that he had been denied effective assistance of counsel at trial. The testimony at the hearing showed that, approximately two months after his apprehension, McQueen was confined in the Jefferson County jail in Hillsboro, Missouri, where a separate first-degree murder charge was pending. At that time, a Jefferson County magistrate appointed an attorney from Kirkwood, Missouri, Hale W. Brown, to represent McQueen in the Hillsboro ease. Shortly thereafter, Brown apparently volunteered to act as McQueen’s attorney in the St. Louis case as well, but he was not officially appointed to that case until September 24, 1964, four days before the trial.

There is some dispute as to how many visits Brown made to the Jefferson County jail to confer with McQueen and how much time he devoted to the case. According to McQueen, Brown visited him only twice during the period he was confined in Hillsboro between December 1963 and June 1964. According to McQueen, none of the conferences in Hillsboro related to the St. Louis case in any significant way. Some factual corroboration for this contention was offered by a fellow prisoner whose cell was next door to McQueen’s. The witness, who was in the Hillsboro jail between March and July 1964, testified that he saw Brown only once during that period, that he could hear everything that was said, that the conference was only about the Hillsboro case, and that it lasted only 15 minutes.

McQueen testified further that Brown did not visit him at all, during the entire time in which he was confined in the St. Louis City Jail, between June 1964 and the time of the St. Louis trial in late September, and that it was not until the actual trial that McQueen was able to discuss the death of George Francis with his attorney. McQueen asserts that, at that time, he attempted to persuade Brown to investigate Dr. Zoeller whose sister owned the murder weapon and who, according to McQueen, knew the deceased and was himself a homosexual.

Brown’s testimony, on the other hand, emphasized that he visited Jefferson County approximately 37 or 38 times and talked to the petitioner in the county jail about seven times and in the city jail about one or two times. Brown estimated, however, that he spent about four-fifths of all that time working on the Hillsboro case which he expected to come to trial first. In answer to questions probing the manner in which he investigated the St. Louis case, Brown replied as follows:

Q: Did Roger tell you that Doctor Zoeller knew the deceased, the victim in the case ?
A: I am sure he did, yes.
Q: Did you press that point or investigate it?
A: No. It wouldn’t have much to do with shooting a man in the head.
Q: Now, Mr. Brown, did you interview any prosecution witnesses?
A: No, sir.
Q: Prior to trial? A. No, sir.
Q: Of course, there was a long list and the court file had a number of prosecuting witnesses? A Yes, sir.
Q: You did not undertake to interview any prosecution witness ? A No.
Q: Go to see them or try to interview them? A No.
Q: So you don’t really know whether or not they would have talked to you prior to trial? A No. I have never been one to go out and interview them. I realize there is a statute that says they should give us their testimony, but I also found from other lawyers it looks like you are tampering with the State’s witnesses when you talk to them. That becomes an issue in a trial. I don’t think it is worthy of a deposition. And I don’t try to contact them. And like a policeman telling what is going on around the jail. And I try to shoot for my ease. I never like to go out and interview State’s witnesses. That is the duty of a detective or somebody to go to the Court and make an application. It is too subject to bribery offers. It puts you in a bad light. You can be accused of many things. I don’t care to get into that.
Q: It is your position as a matter of policy you simply do not and did not in this case even attempt to interview any prosecuting witness ? A No, I did not.

III.

In denying McQueen’s 27.26 motion after the evidentiary hearing, the state court in an unpublished opinion concluded as follows:

In view of the fact that the defendant stated to his counsel that he was present at the scene and that he did actually kill the deceased George Francis, and in view of the fact that there was no eyewitness to the actual killing by defendant of George Cooper Francis, it cannot be said that the defendant was inadequately represented. The mere fact that he failed to interview all the witnesses or any of the witnesses on the indictment does not necessarily mean he was neligent in the preparation of the case. It may well have been that he obtained information from other sources. Counsel stated that he did. There is no reason to disbelieve him.
The complaint that Mr. Brown failed to interview a single witness endorsed by the State does not appear to have prevented the defendant from obtaining a fair trial.

The Missouri Supreme Court relied upon this conclusion in affirming the lower court’s rejection of McQueen’s claims, stating:

In this case, the defense was self-defense. The defendant was the only eyewitness available to sustain that defense. Therefore, consultation with the defendant in this case was basically what was required in order to make proper and adequate presentation of the defense. [475 S.W.2d at 114.]

This theme was reiterated in the federal district court’s opinion disposing of McQueen’s § 2254 petition. The district court noted that, since a “full and fair hearing” had been conducted in state court, further hearing was unnecessary, and it held as follows on the merits:

Petitioner’s main attack on the effectiveness of his trial counsel is made by way of his assertion of inadequate trial preparation. The Missouri 27.26 court found that defense counsel expended a substantial amount of effort in preparing for trial on the St. Louis murder charge, and that this trial preparation began well in advance of counsel’s formal appointment. Counsel had spoken at length with the only eyewitness to the killing — petitioner himself. Counsel’s failure to interview prosecution witnesses, although an admittedly normal practice for him, and his failure to visit the scene of the crime were, nevertheless, the results of the exercise of his judgment. [357 F.Supp. at 562.]

From a complete examination of the record before us, we are forced to conclude that the district court’s reliance on the state court’s findings of fact is clearly erroneous and that petitioner has met his burden of proving a violation of his constitutional right to effective assistance of counsel. What remains is to remand the case to the district court to allow petitioner an opportunity to establish the existence of prejudice which would justify further relief.

Under Townsend v. Sain, 372 U. S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and the 1966 amendments to 28 U.S.C. § 2254 which effectively codified its holding, the district court must treat a state court finding of fact on a disputed issue as presumptively correct where a “full and fair hearing” has already been held and where the state court’s finding of fact is “fairly supported by the record.” 28 U.S.C. § 2254(d).

Regarding Brown’s investigation of the St. Louis murder charge, the 27.26 court concluded that:

It may well have been that [Brown] obtained information from other sources. Counsel stated that he did. There is no reason to disbelieve him. Based upon this record, the district

court concluded that there was no inadequate trial preparation. The district court emphasized the fact that “[t]he Missouri 27.26 court found that defense counsel expended a substantial amount of effort in preparing for trial -on the St. Louis murder charge.” 357 F.Supp. at 562.

This crucial evidentiary conclusion, however, finds no basis whatsoever in the record at trial or at the 27.26 hearing. Brown testified at the 27.26 hearing that he conferred with the petitioner, but that he did not interview any of the 41 witnesses endorsed on the indictment — 26 of whom testified at trial. Brown made no statement of any kind that could be interpreted to mean that he obtained information from other sources. Nor did his conduct of the trial itself suggest that he had obtained any information outside of that passed to him by the petitioner. Defense counsel called no witnesses other than petitioner; he introduced no documentary or physical evidence; and he submitted no outside information for impeachment or contradiction. We cannot therefore say that the state court’s finding is “fairly supported by the record” or that the district court’s reliance on it is justified. Indeed, the only factual conclusion that can be drawn from the 27.26 hearing is that attorney Brown’s sole preparation for the defense of a client charged with first-degree murder was to interview the defendant himself. The question now to be resolved is whether that amounts to ineffective assistance of counsel within our precedents. In the circumstances of this case, we hold the lack of pretrial investigation amounts to ineffective assistance of counsel.

IV.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), made it clear a decade ago that the right to counsel, guaranteed to federal defendants through the sixth amendment, is a fundamental right guaranteed to state defendants through the due process clause of the fourteenth amendment. Since the days of the “Scottsboro boys” rape case, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), it has also been accepted that a state defendant has a right not only to the timely appointment of counsel but also to the assistance of counsel whose quality of performance does not fall below a minimum level of effectiveness. See McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Waltz, “Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases,” 59 Nw.U.L.Rev. 289 (1964). See also Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

The Supreme Court, however, has never enunciated any clear standards for courts to follow in passing on claims of ineffective assistance of counsel. As a result, circuit courts, left without guidance, have groped for the correct prescription to apply. Over time, a generally accepted formula emerged and came to be known as the “mockery of justice” standard. Our circuit has earlier defined this standard in Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967), in these words:

[A] charge of inadequate representation can prevail “only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court.” [375 F.2d at 230.]

More recently in Brown v. Swenson, 487 F.2d 1236 (8th Cir. 1973), we have had the occasion to express the same thought in other words. There we said:

It is well established that in order to show a basis for relief on the ground of ineffective assistance of counsel the appellant must show actions of his lawyer which would constitute such conscious conduct as to render pretextual the attorney’s legal obligation to fairly represent the appellant and circumstances which demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client. [487 F.2d at 1240.]

Stringent as the “mockery of justice” standard may seem, we have never intended it to be used as a shibboleth to avoid a searching evaluation of possible constitutional violations; nor has it been so used in this circuit. It was not intended that the “mockery of justice” standard be taken literally, but rather that it be employed as an embodiment of the principle that a petitioner must shoulder a heavy burden in proving unfairness. Cf. Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113, 116 (1967). Despite regular critical attacks on the “mockery of justice” standard by commentators, we have adhered to it. We need not now resolve the issue of whether the right to effective assistance of counsel derives solely from the due process clause or also from the sixth amendment’s “more stringent requirements.” See Moore v. United States, 432 F.2d 730, 737 (3d Cir. 1970); United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597, 601 (1970); Bines, “Remedying Ineffective Representation in Criminal Cases: Departures from Habeas Corpus,” 59 Va.L.Rev. 927, 936 (1973). Nor need we decide whether at this time to follow the trend set by the Third, Fourth, Fifth and District of Columbia Circuits and adopt a standard of “reasonably competent” representation. See McMann v. Richardson, supra, 397 U.S. at 770-771.

We hold that, even under our existing precedents, the eomplained-of conduct amounts to ineffective assistance of counsel. Nevertheless, what these circuits have said in relation to the duty of investigation is here pertinent.

The Fifth Circuit long ago adopted a “reasonable counsel” standard, stating in MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960):

We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and, rendering reasonably effective assistance. [280 F.2d at 599 (emphasis in original).]

Relevantly, in King v. Beto, 429 F.2d 221 (5th Cir. 1970), this standard was applied to affirm the granting of a writ of habeas corpus in a state conviction where defense counsel never investigated the circumstances of the crime charged. See also Brooks v. State of Texas, 381 F.2d 619 (5th Cir. 1967).

The Fourth Circuit in Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), first broke new ground by overthrowing the older standard in favor of setting forth a series of specific requirements which defense counsel must observe in the representation of his client. Importantly, adequate investigation is a central requirement:

The principles may be simply stated : Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. [389 F.2d at 226 (footnotes omitted).]

The Third Circuit was the next to abandon the “mockery of justice” standard in Moore v. United States, 432 F.2d 730 (3d Cir. 1970), but opted for a more generalized, “normal competency” standard rather than specific guidelines like those in Coles v. Peyton, supra. The court concluded that “the standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.” 432 F.2d at 736. But, in remanding the case for an evidentiary hearing, the court gave substance to the general rule by adding the following comment:

We have no doubt that counsel acted in an effective manner as far as the trial judge was able to observe his conduct. But representation involves more than the courtroom conduct of the advocate. The exercise of the utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the ease or failed to interview essential witnesses or to arrange for their attendance. [432 F.2d at 739 (footnotes omitted).]

Most recently in United States v. DeCoster, 487 F.2d 1197 (D.C.Cir. 1973), the District of Columbia Circuit abandoned its older standard and adopted detailed guidelines, similar to those of the Fourth Circuit, as a partial definition of the duties owed by counsel to his client under the following standard: “a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” 487 F.2d at 1202. The court drew specific attention to adequate investigation in guideline three:

(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that “all available defenses are raised” so that the government is put to its proof. This means that in most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research. [487 F.2d at 1204 (footnotes omitted).]

In deciding the instant case, the district court relied upon the sound precept enunciated in Robinson v. United States, 448 F.2d 1255, 1256 (8th Cir. 1971), that the exercise of a defense attorney’s professional judgment should not be second-guessed by hindsight in a proceeding such as the present one. 357 F.Supp. at 563. Although we reaffirm this principle, we cannot agree that Brown’s failure to do any more investigation of the case than the interviewing of the defendant comes within this rule. Brown’s assertion that he never interviews prosecution witnesses is an absurd and dangerous policy which can only be viewed as an abdication — not an exercise —of his professional judgment. In this circuit, we have stated:

[T]he mere appointment of counsel, no matter how able, for a defendant charged with commission of a crime without opportunity to consult, advise or to make such preparation for arraignment and trial as the facts of the case fairly demand would be a travesty and would not satisfy the requirements of the Fifth and Sixth amendments. [Maye v. Pescor, 162 F.2d 641, 643 (8th Cir. 1947) (emphasis added).]

We recognize that there is and should be a presumption that counsel is competent, which must be overcome by the petitioner in order for an ineffective assistance of counsel claim to lie. Crowe v. State of South Dakota, 484 F.2d 1359, 1361 (8th Cir. 1973). But here the requisite showing has been made. The highly respected American Bar Association Project on Standards for Criminal Justice, in its “Standards Relating to the Prosecution Function and the Defense Function” (Approved Draft, 1971), has enunciated the duty to investigate in these terms:

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty. [A.B.A. Standards, supra § 4.1.]

The logic behind such a rule is obvious. As one district court succinctly put it in granting a writ of habeas corpus:

The most able and competent lawyer in the world can not render effective assistance in the defense of his client if his lack of preparation for trial results in his failure to learn of readily available facts which might have afforded his client a legitimate justiciable defense. [Goodwin v. Swenson, 287 F.Supp. 166, 182-183 (W.D.Mo. 1968).]

And as another district court vividly stated in also granting a writ for failure to investigate:

The lawyer who does not probe, does not inquire, and does not seek out all the facts relevant to his client’s case is prepared to do little more than stand still at the time of trial. [Smotherman v. Beto, 276 F.Supp. 579, 588 (N.D.Tex.1967).]

In affirming the 27.26 court in this case, the Missouri Supreme Court commented that Brown’s investigation was sufficient since “consultation with the defendant in this case was basically what was required in order to make a proper and adequate presentation of the defense.” 475 S.W.2d at 114. The district court also accepted this premise. Yet it is precisely in such circumstances as these — where the only live eyewitness is the defendant- — that outside investigation is absolutely crucial. In no other fashion can the truth of the defendant’s version of events be corroborated.

In Cross v. United States, 392 F.2d 360 (8th Cir. 1968), we dealt with a claim raised on direct appeal from a federal conviction that a defendant’s retained counsel provided constitutionally inadequate representation at trial. There, as here, defense counsel’s trial technique was acceptable, but there, as here, defense counsel admittedly did not investigate the case beyond conversing with the defendant himself. Citing the statement in Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942), that “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial,” we remanded the case to the district court to determine whether any prejudice resulted to Cross from the conduct of his attorney. We do so again here, and at the same time clarify what may have been unclear in Cross: that the failure to make a reasonable investigation may amount to ineffective assistance of counsel within the standards enunciated in Cardarella v. United States, supra, and Brown v. Swenson, supra.

V.

Our inquiry as to whether or not to grant relief is not concluded by finding a constitutional violation in the failure of petitioner’s attorney to make an adequate investigation of the case. Evaluation of a habeas corpus petition alleging ineffective assistance of counsel is a two-step process: first, determining, as we have already done, whether there has been a failure to perform some duty, as essential as the duty of investigation, owed by a defense attorney to his client; and second, determining, as will be done on remand, whether that failure prejudiced his defense. This second step is necessary, we believe, because the failure to investigate — though a constitutional error — might in certain circumstances be a “harmless” one and hence would not justify habeas corpus relief. We are guided in this regard by Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), where the Court fashioned its harmless-constitutional-error rule.

Although in Chapman, the Supreme Court cited the right to counsel enunciated in Gideon v. Wainwright, supra, as one of those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,” 386 U.S. at 23, we believe that there is an important and obvious difference between the total absence of counsel in Gideon and the ineffective assistance of counsel in the instant case. Since advice of counsel is so crucial tc the exercise of a defendant’s other rights, a total absence of counsel cannot but be harmful. Yet where a defendant is represented by counsel and it is the effectiveness of his counsel’s performance that has slipped below the acceptable standard, the seriousness of this constitutional violation must be judged in terms of the particular factual circumstances of that case.

It is a sensible view, as the Court pointed out in Chapman, that all trial errors which violate the Constitution do not automatically call for reversal. Applying that basic principle, the Court in Chapman went on to enunciate a harmless error rule “requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24. Were that rule to be applied in ineffective assistance of counsel cases, it would appear that the state alone must bear the burden of proof. But such a conclusion need not necessarily follow.

As a constitutional error, ineffective assistance of counsel is sui generis. As we have explained above, it is not one of those fundamental errors like the absence of counsel in Gideon that can never be harmless. We add now that it is not the sort of error envisioned in Chapman which automatically puts a burden on the “beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” 386 U.S. at 24. Unlike a constitutional violation actually caused by the state, such as an illegal search and seizure or a coerced confession, ineffective assistance of counsel is a result of the volitional acts of one charged with representing the defendant. It is, in this sense, not a product of an adversary, but a flaw in the adversary process. To impose automatically the initial burden of proof on the state as described in Chapman would penalize the prosecution for acts over which it can have no control. In such circumstances, a more equitable sharing of the burden of proof seems appropriate.

The courts do not agree on which party must shoulder the initial burden of establishing prejudice, or conversely, the lack of prejudice, flowing from constitutionally inadequate representation. In Coles v. Peyton, supra, the Fourth Circuit held that a showing of counsel’s omissions or failures amounting to ineffective assistance of counsel required the issuance of a writ of habeas corpus “unless the state, on which is cast the burden of proof * * * can establish lack of prejudice thereby.” 389 F.2d at 226. Judge Craven in dissent argued that imperfections in trial representation did not justify shifting the burden of proof to the Government absent their categorization as “inherently prejudicial,” 389 F.2d at 230, or “[wjhere the facts are within the knowledge or reach of an adversary and not readily attainable by the other side * * 389 F.2d at 228.

The District of Columbia Circuit in United States v. DeCoster, supra, specifically adopted the majority view in Coles v. Peyton, and placed the burden on the Government, stating:

Two factors justify this requirement. First, in our constitutionally prescribed adversary system the burden is on the government to prove guilt. A requirement that the defendant show prejudice, on the other hand, shifts the burden to him and makes him establish the likelihood of his innocence. It is no answer to say that the appellant has already had a trial in which the government was put to its proof because the heart of his complaint is that the absence of the effective assistance of counsel has deprived him of a full adversary trial.
Second, proof of prejudice may well be absent from the record precisely because counsel has been ineffective. For example, when counsel fails to conduct an investigation, the record may not indicate which witnesses he could have called or defenses he could have raised. [487 F.2d at 1204 (footnote omitted).]

Judge MacKinnon, concurring and dissenting, accepted the majority’s new test for adequacy of counsel, but emphasized that the burden of proving prejudice ought properly to be cast upon the defendant since “[s]uch proof is usually more within the ability of the accused, if such evidence exists at all * * 487 F.2d at 1205.

The Third Circuit in United States ex rel. Green v. Rundle, 434 F.2d 1112 (3d Cir. 1970), defined the test enunciated in Moore v. United States, 432 F.2d 730 (3d Cir. 1970), more fully and, in specifying that the burden generally rested on the defendant, expanded on the approach voiced by dissenting Judge Craven in Coles v. Peyton. The Rundle court said:

In many instances ineffective assistance of counsel may have had so pervasive an effect on the process of guilt determination that it is impossible to determine accurately the presence or absence of prejudice. In other cases changes in circumstances since the original proceedings beyond petitioners’ control, such as the death of a witness who was not called, may make it impossible at the time of the habeas corpus petition to determine prejudice. In such instances a finding of departure from the standard of normal competence requires without more, a new trial. In other cases the failure of counsel may be with respect to a narrow issue or area, and it may well be possible, in the habeas corpus proceeding, to determine whether or not the departure from normal competence was prejudicial. * * * When a habeas corpus petitioner alleges as a ground for relief the failure of counsel to exercise normal competence in presenting specific trial evidence it is ‘reasonable, we think, to put on petitioner the burden of showing that the missing evidence would be helpful. [434 F.2d at 1115.]

We believe a flexible approach, similar to that in Rundle, is called for. We ought not to intervene in the criminal process unless and until it can be shown that the alleged error itself prejudiced the petitioner in obtaining a fair trial. But this is not to say that, on remand, petitioner must prove his innocence even by so much as a preponderance of the evidence; nor should we be understood to suggest that the Court may trespass upon what properly would have been the jury’s province of weighing the truth or falsity of this evidence at the original trial. What we are saying is that, here, the petitioner must shoulder an initial burden of showing the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-chief at the original trial. Once this showing is made, a new trial is warranted unless the court is able to declare a belief that the omission of such evidence was harmless beyond a reasonable doubt. Cf. Chapman v. California, supra.

In lieu of such a showing, we hasten to add, the defendant must be allowed to demonstrate that changed circumstances beyond petitioner’s control have made it impossible to produce any helpful evidence at this time. The latter circumstances, if proved, would serve to shift to the state the burden of showing the absence of any prejudice in the trial because of the inadequacy of defendant’s counsel.

This case will be remanded to the district court for a hearing on the issue of whether or not prejudice flowed from the failure of counsel to make a reasonable investigation of this case. The petitioner, as we have already stated, must shoulder the initial burden of showing either prejudice or, alternatively, changed circumstances which would justify placing on the state the burden of proving the absence of prejudice.

The judgment of the trial court is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . On his initial appeal to the Missouri Supreme Court, the judgment was affirmed. State v. McQueen, 399 S.W.2d 3 (Mo. 1966). This decision was later set aside, however, because McQueen as an indigent was not furnished counsel on appeal. The record is unclear as to why no attorney appeared for the defendant. Following the trial, petitioner’s original trial counsel, Hale W. Brown— whose trial representation is here challenged —stated to the court at a hearing on McQueen’s petition to appeal as a poor person: “I have agreed to go on up with this case at no cost on my part.” The court granted the motion, but there is no indication in the record as to what happened to Mr. Brown. In the first appeal, the Missouri Supreme Court followed the procedure it normally employed at that time when a defendant was unrepresented at the appellate level; the court simply considered the contentions originally raised in the defendant’s motion for a new trial as allegations of error.
      Upon resubmission to the state Supreme Court with new counsel, the judgment was again affirmed. State v. McQueen, 431 S.W.2d 445 (Mo. 1968). Prior to the second submission of the direct appeal, McQueen filed a motion under Missouri Supreme Court Rule 27.26 V.A.M.R. collaterally attacking his conviction on the ground that he had been denied effective assistance of counsel. On September 12, 1969, an evidentiary hearing on the motion was held in the Circuit Court for the City of St. Louis, Missouri. The trial court denied relief, and, in an opinion that provoked strong dissents from Justices Seiler and Donnelly, the Missouri Supreme Court affirmed. McQueen v. State, 475 S.W.2d 111 (Mo.1971).

      . At the original trial, McQueen asserted that the shirt belonging to Dr. Zoeller which was found in his possession when he was apprehended was one of several items of apparel given to him by the deceased after his release from imison.

      . The watch seen on McQueen’s wrist inexplicably disappeared when petitioner was apprehended by police officers outside of Louisville, Kentucky.

      . According to McQueen, the only question asked was whether he had killed Francis, and, since he thought that he perhaps liad only wounded him, he rexilied “Xot to the best of my knowledge” to that question.

      . The indictment charged McQueen with first-degree murder in that he “feloniously, willfully, premeditatedly, deliberately, on Iiurpose, and of his malice aforethought” killed Francis. Tiie lesser-included offense of second-degree murder is defined in the same manner except that the element of “deliberately” is absent. The court instructed the jury on this point as follows :
      “Deliberately” means done in a cool state of the blood. It does not mean brooded over or reflected upon for a week, a day, or an hour, but it means an intent to kill executed by a party in a cool state of the blood, in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful xrarpose, and not under the influence of a violent passion suddenly aroused by some provocation.

      . The record does not make clear the present status of this second charge, but petitioner stated at the 27.26 hearing that he has not as yet been tried on it.

      . Dr. Zoeller testified at the trial that he did not know the deceased, but admitted knowing the defendant as an insurance salesman who had canvassed Zoeller’s neighborhood. Defendant’s attorney made no further inquiry relating to the witness’ acquaintanceship with defendant or any possible relationship with the deceased, although, from his testimony at the 27.26 hearing, it appeared that he accepted McQueen’s characterization of Dr. Zoeller’s homosexuality.

      . Pursuant to Missouri Supreme Court Rule 24.17, the names of 41 witnesses were “endorsed” on the indictment. Rule 24.17 states:
      When an indictment or information is filed the names of all material witnesses for the prosecution shall be endorsed thereon.

      . Brown’s failure to visit the scene of the shooting was not brought out in the 27.26 hearing, but it was noted both by the Missouri Supreme Court and by the federal district court that an examination of the trial transcript indicates that the attorney was quite unfamiliar with the layout of the deceased’s apartment. For example, on cross-examination, Brown attempted to ascertain from the deceased’s stepbrother in what bed Cole, the alleged lover of George Francis, slept. After the question was asked, the following interchange occurred:
      A: To my knowledge, I wouldn’t know because there were three beds up there.
      Q: Three beds upstairs; is that right?
      A: Yes.
      Q: I see, I didn’t know how big the upstairs was.

      . Attacks on this standard focus on what critics perceive as its ethical permissiveness which allows inexcusably sloppy lawyering to be passed unchallenged. One scholar of the subject has stated:
      It may be something of a puzzle to outsiders why lawyers, who demand so much of other professionals, ask so little of themselves. Doctors, after all, owe their patients much more than a mockery of medicine. But the mockery-of-justice standard does not really reflect the standard of performance which defense lawyers owe their clients. In theory defendants can bring malpractice actions against both doctors and lawyers, but as a practical matter the only remedy for inadequate representation has been to vacate otherwise valid convictions. As a result, the courts have been more concerned with the fairness of the proceedings taken as a whole than with the obligations of counsel. The mockery-of-justice standard simply reflects tbe view that the policy of finality in criminal cases so outweighs the consequences of inferior defense work that only the most serious errors and omissions by counsel deprive the defendant of a fair trial.
      Bines, “Remedying Ineffective Representation in Criminal Cases: Departures from Habeas Corpus,” 59 Va.L.Rev. 927, 928-29 (1973) (footnotes omitted). Other critics point to the essential vagueness of the standard which makes it “unpredictable and difficult to apply.” Finer, “Ineffective Assitance of Counsel,” 58 Cornell L.Rev. 1077, 1078 (1973). See also Grano, “The Right to Counsel: Collateral Issues Affecting Due Process,” 54 Minn.L.Rev. 1175 (1970) ; Note, “Effective Assistance of Counsel for the Indigent Defendant,” 78 Harv.L.Rev. 1434 (1965); Note, “Effective Assistance of Counsel,” 49 Va.L.Rev. 1531 (1963).

      . It was the phrase “reasonably competent advice” in 21e2Iann that appeared to trigger the Third Circuit’s change of standard in Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970). The West Virginia Supreme Court lias recently adopted the following test:
      In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel’s performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law.
      State v. Thomas, 203 S.E.2d 445, 461, (W.Va.Sup.Ct., filed Mar. 19, 1974). In reaching its conclusion, the Thomas court found Chief Justice Burger’s arguments for a higher standard of competence among America’s trial practitioners compelling. See Burger, “The Special Skills of Advocacy: Are Specialized Training & Certification of Advocates Essential to Our System of Justice?” 27 Fordham L.Rev. 227 (1973).

      . The A.B.A. Standards relating to defense counsel have been specifically incorporated into the guidelines for determining violations of the right to effective assistance of counsel laid down by the District of Columbia Circuit in United States v. DeCoster, 487 F.2d 1197, 1203 (D.C.Cir. 1973), and by the Wisconsin Supreme Court in State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1, 9 (1973).

      . Any number of steps could have been taken by Brown to seek corroboration for McQueen’s story. The possibility of a relationship between the deceased and Dr. Zoeller could have been explored as an explanation of the presence of Mary' Zoeller’s pistol in the deceased’s apartment, for example. Other areas of important investigation have been suggested in Justice Seiler’s dissent in the last Missouri Supreme Court case. McQueen v. State, 475 S.W.2d 111, 120-124 (Mo.1971).

      . Other circuits have found no distinction in the constitutional standard to be applied as between appointed and retained counsel. See United States v. Marshall, 488 F.2d 1169, 1192-1193 (9th Cir. 1973); West v. Louisiana, 478 F.2d 1026, 1032-1034 (5th Cir. 1973), rehearing en banc granted (Sept. 5, 1973) ; Goodwin v. Cardwell, 432 F.2d 521, 522 (6th Cir. 1970). Since Brown was appointed by the court, we do not here determine whether such a distinction should exist. We save too for another day the question, whether, in general, a different standard may be applicable as between a claim raised on direct appeal from a criminal conviction and one rasied in a collateral proceeding. Compare United States v. DeCoster, 487 F.2d 1197, 1201-1202 (D.C.Cir. 1973), with Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113. 117 (1967).

      . In so holding, we re-emphasize the caveat expressed in Cross v. United States that courts will not allow a willful failure to investigate to be used as “an avenue by which counsel can upset the judicial processes.” 392 E.2d at 367. Such a calculated dereliction of duty by an attorney will not avail his client and would subject the attorney to disciplinary proceedings by the court.

      . In Chapman, the Court applied its harmless error rule to the prosecutor’s closing argument commenting at length upon the failure of the defendants to testify and to the judge’s instructions permitting inferences of guilt to be drawn from the defendants’ silence. The Court found those errors harmful. 386 U.S. at 26. Such comments were held constitutionally invalid in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).