author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Larry Lee HANSEL, Appellant.
    No. 72-1373.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 5, 1972.
    Decided Feb. 20, 1973.

      Douglas McArthur, Lincoln, Neb., filed brief for appellant.
    William K. Schaphorst, U. S. Atty., and R. C. Cougill, Asst. U. S. Atty., Omaha, Neb., filed brief for appellee.
    Before MATTHES, Chief Judge, and GIBSON and HEANEY, Circuit Judges.

      . Statutes prohibiting the possession of firearms by particular classes of persons have been criticized. National Commission on the Causes & Prevention of Violence, Staff Report, Firearms and Violence in American Life, § 81-25 (undated). This case bears out the difficulties with respect to the definition of classes.

   HEANEY, Circuit Judge.

The defendant was convicted on two counts of violating the Gun Control Act of 1968. Count I charged that, in violation of 18 U.S.C. §§ 922(a)(6) and 924 (a), he had falsely certified that he had not been adjudicated a mental defective or committed to a mental institution. Count II charged that, in violation of 18 U.S.C. §§ 922(h) and 924(a), the defendant had received a firearm after having been adjudicated a mental defective or committed to a mental institution.

The evidence clearly showed that the defendant had purchased a firearm on April 25, 1971, and had stated on the “Firearms Transaction Record” that he had not been adjudicated mentally defective or committed to a mental institution. The principal question before the trial court and before this Court is whether the defendant had in fact been “adjudicated as a mental defective” and “committed to any mental institution” within the meaning of § 922(h) of the Gun Control Act of 1968.

According to the evidence produced by the government, the Board of Mental Health of Lancaster County, Nebraska, found the defendant to be mentally ill and in need of hospitalization and ordered him hospitalized pursuant to 5 Neb.Rev.Stat. § 83-328 (1971). It was the position of the government that the finding of the mental illness constituted an adjudication of mental defectiveness, and that the order of hospitalization constituted a commitment.

During the government’s case, the doctor who had examined the ■ defendant upon his admission to Lincoln State Hospital testified. He stated that the defendant was found not to have a serious mental disorder, and that he was not in need of hospitalization. He also stated that the defendant was not a mental defective.

The evidence showed that the defendant was released from the hospital on “convalescent leave” after two weeks, and was shortly thereafter formally discharged. Subsequent to his release, the defendant had no further contacts with the hospital.

At the close of the government’s case, the defendant moved for a directed verdict on the grounds that there was no evidence to show that he had either been adjudicated a mental defective or committed to a mental institution. This motion was denied.

The defendant then presented his case. The defendant testified that he did not believe that his entry into the Lincoln State Hospital constituted a “commitment.” He stated that he had been told that it was solely for a brief period of observation. This testimony was corroborated in part by the defendant’s wife.

At the close of the case, the court instructed the jury that they could find the defendant guilty if he had either been adjudicated a mental defective or if he had been committed to a mental institution. The court then defined a mental defective as a “person who has any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” The court did not further define the term “commitment.” The defendant objected, stating that he did not believe the question of whether the defendant was a mental defective should go to the jury because no evidence had been introduced in that regard. The judge overruled this objection.

The first question is whether the defendant’s hospitalization, pursuant to the County Mental Health Board’s order, was a “commitment.” The government conceded on appeal that the defendant was not committed because there was no compliance with 5 Neb.Rev.Stat. § 83-328. This concession is well taken. The Nebraska statutory scheme establishes a two-step procedure for determining that an individual is a mentally ill person in need of hospitalization. First, the individual may be temporarily hospitalized for psychiatric observation if the County Mental Health Board makes a determination that he is a mentally ill person in need of hospitalization. Second, an individual may be committed to a hospital if, on the basis of this observation, the superintendent of the state mental hospital determines that the individual is mentally ill and then certifies this determination to the County Board of Mental Health.

In the present case, no evidence was introduced to establish that the superintendent of the mental hospital had determined the defendant was mentally ill or had conveyed any certification to the Mental Health Board. The record rather indicates that the defendant was found by the superintendent to have no serious mental illness, and was found not in need of hospitalization. Thus, the scope of the Mental Health Board’s order hospitalizing the defendant was limited to “authorizing the superintendent of the hospital to receive and keep the person as a patient for a period of observation, not to exceed sixty days * * (Emphasis added.). 5 Neb.Rev.Stat. § 83-328. There is nothing in 18 U.S.C. § 922(h) which indicates an intent to prohibit the possession of firearms by persons who had been hospitalized for observation and examination, where they were found not to be mentally ill. The statute makes it clear that a commitment is required.

The second question is whether the finding by the Mental Health Board, that the defendant was mentally ill, was an adjudication of mental defectiveness within the meaning of 18 U.S.C. § 922 (h). We hold that it was not. We do not reach the question of whether the “finding” was an “adjudication” because we believe that the term “mental defective” as used in the Gun Control Act does not include mental illness.

The Gun Control Act itself does not define the term “mental defective.” The parties have not suggested any legislative history which would illuminate this point, and we have found nothing in the committee reports or debates which is helpful.

Thus, we are left to ourselves to determine the meaning of the term “mental defective,” “ * * * without any revealing guides as to the intent of Congress. In these circumstances we should follow the familiar rule that criminal statutes are to be strictly construed and give to ‘[mental defective]’ its narrow meaning * * Yates v. United States, 354 U.S. 298, 310, 77 S.Ct. 1064, 1072, 1 L.Ed.2d 1356 (1957).

At trial, the following colloquy took place between the defendant’s counsel and the doctor who had examined the defendant at the state mental hospital:

“Q. Dr. Richardson, are you familiar with the term mentally defective, or mental defective?
“A. I think that I would know what is generally meant by mental defective, yes.
“Q. What is your understanding of the term mental defective?
“A. My understanding of the term would be an impairment of intellectual abilities so it would be synonymous with mental retardation. This would be my understanding of the term.
“Q. Dr. Richardson, based upon your training and based upon your examinations of Larry Hansel do you have an opinion as to whether or not Mr. Hansel would be classified as a mental defective ?
“A. No, he would not.
“Q. He would not be classified as a mental defective?
“A. In my opinion he would not.”

No testimony to the contrary was introduced.

In law, a distinction has usually been made between those persons who are mentally defective or deficient on the one hand, and those who are mentally diseased or ill on the other. See, People v. Thayer, 121 Misc. 745, 202 N.Y.S. 633 (Ulster County Ct. 1923); Interstate Compact on Mental Health, 5A Ark.Stat.Ann. § 59-801; Herzog, Medical Jurisprudence, §§ 561-585 (1931); 1 Wharton and Stille, Medical Jurisprudence, §§ 1073-1093 (5th ed. 1905). In its plain meaning, the term “mental defective,” as Dr. Richardson testified, normally designates an individual of marked subnormal intelligence. People v. Hoffmann, 255 App.Div. 404, 8 N.Y.S.2d 83, 85 (App.Div.1938). In that case, the court stated:

“ * * * The statutes do not define ‘mental defect,’ ‘mental defective,’ nor ‘mental deficiency;’ but Webster’s Dictionary (1935 edition) denominates these as ‘marked subnormal intelligence,’ ‘lack of intelligence,’ and that in varying degrees of the descending scale of moronity, imbecility and idiOCy^ * * * ”

Similarly, a psychiatric dictionary defines “mental defective” as “one who is subnormal intellectually, feebleminded.” L. Hinsie & R. Campbell, Psychiatric Dictionary (1960). The Encyclopedia Britanniea states that mental defectiveness, mental deficiency and feeblemind-edness are synonyms which denote limitations of development of the personality, usually including intellectual retardation. 15 Encyclopedia Britanniea 167 (1972). The Royal Commission on Capital Punishment (1953) has stated:

“336. ‘Mental deficiency’ is generally understood as meaning intellectual defect, or defect of understanding, existing from birth or from an early age. In England ‘mental defectiveness’ is defined by statute as ‘a condition of arrested or incomplete development of mind existing before the age of eighteen years, whether arising from inherent causes or induced by disease or injury’.
A mental defective, therefore, as has often been said, is a person who has never possessed a normal degree of intellectual capacity, whereas in an insane person faculties which were originally normal have been impaired by mental disease.
“337. In England mental defectives are divided into four classes, which are defined as follows:- — ■
“ ‘(a) Idiots, that is to say, persons in whose case there exists mental defectiveness of such a degree that they are unable to guard themselves against common physical dangers;
“‘(b) Imbeciles, that is to say, persons in whose case there exists mental defectiveness which, though not
amounting to idiocy, is yet so pronounced that they are incapable of managing themselves or their affairs or, in the case of children, of being taught to do so;
“‘(c) Feeble-minded persons, that is to say, persons in whose case there exists mental defectiveness which, though not amounting to imbecility, is yet so pronounced that they require care, supervision and control for their own protection or for the protection of others or, in the case of children, that they appear to be permanently incapable by reason of such defectiveness of receiving proper benefit from the instruction in ordinary schools;
“ ‘(d) Moral defectives, that is to say, persons in whose case there exists mental defectiveness coupled with strongly vicious or criminal propensities and who require care, supervision and control for the protection of others.’ ”

We recognize that the term “mental defective” has on occasion, been given a more expansive meaning by courts and legislatures. See, United States v. Flores-Rodriguez, 237 F.2d 405, 411 (2nd Cir. 1956). But as we have said, we must construe the statute narrowly and give to “mental defective” its. general meaning. If it is the desire of Congress to prohibit persons who have any history of mental illness from possessing guns, it can pass legislation to that effect, but we cannot read into this criminal statute an intent to do so. We can speculate that Congress desired to keep guns from all who had a history of mental illness and we might agree that such a policy would be desirable; but we can find no support for such a holding on our part. We, therefore, hold that the defendant’s convictions must be set aside and a judgment of acquittal entered on both counts.

Reversed.

      . 18 U.S.C. § 922(h) states:
      “(h) It shall be unlawful for any person—
      “(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
      “ (2) who is a fugitive from justice;
      “(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201 (v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954) ; or
      “(4) who has been adjudicated as a mental defective or who has been committed to any mental institution;
      “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

      . The defendant’s wife stated that it was her understanding that the defendant had been hospitalized for observation.

      . The jury returned a general verdict of guilty on both counts. It made no special finding that the defendant nad been “committed to any mental institution” or “adjudicated a mental defective.” Under such circumstances, we must examine the record to determine whether there is evidence to support both. For the reasons set forth in the opinion, we feel that there is not sufficient evidence to support either.

      . 5 Xeb.ltev.íStat. § 83-32S (1971) states:

        “83-328. County board of mental health; certification from superintendent; findings. As soon as practicable after the certificate required by this act lias been filed, the county board of mental health shall conclude its investigations. The board members shall find (1) whether the person alleged to be mentally ill is mentally ill; (2) if mentally ill, whether he should be admitted to a state hospital for the mentally ill; and (3) whether his legal settlement is in their county, and if not in that county where it is, if ascertained. If they find the person alleged to be mentally ill is not mentally ill, the board members shall order his discharge, if he is in custody; if they find the person alleged to be mentally ill is mentally ill and should be admitted to a hospital, they shall issue a warrant in duplicate, stating their finding together with the legal settlement of the proposed patient if found and if not found their information if any in regard thereto, authorizing the superintendent of the hospital to receive and keep the person as a patient for a period of observation not to exceed sixty days, at which time the hospital superintendent shall certify that the patient is or is not mentally ill. Commitment by the county board of mental health will be completed only when certification from the superintendent of the state hospital concerned is properly filed with the referring county board of mental' health.”

      - Mental Deficiency Act, 1927 Section 1(2).


source: Caselaw Access Project

author: LIVELY, Circuit Judge.

license: Public Domain

text:
    Philip Benjamin BLACKMON, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 72-1763.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 9, 1973.
    Decided March 12,1973.
    Ishmael C. Childs (Court appointed), Cleveland, Ohio, for defendant-appellant.
    Frederick M. Coleman, U. S. Atty., William D. Beyer, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee.

      Before WEICK, MILLER and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

On direct appeal from his conviction of armed bank robbery (18 U.S.C. § 2113(a) and (d)) the appellant seeks reversal on a number of grounds, all of which have been considered by this Court. There is no merit to the contention that Section 2113 is unconstitutional. Also, an examination of the entire record convinces us that there was sufficient evidence to support the jury’s verdict of guilt. Although there was some discrepancy between two pre-trial statements given by the witness Brooks, nevertheless, he testified concerning the alleged admission made to him by the defendant Blackmon and was cross-examined concerning his prior statements. It was for the jury to determine his credibility and the weight to be given his evidence. The alleged admission of Blackmon to Brooks was corroborated by independent testimony of other witnesses.

Two alleged procedural errors have been brought to our attention by appellant. The case was submitted to the jury late one Friday afternoon and, after several hours of deliberation, court was recessed until the following Monday and the jurors were permitted to separate over the weekend. After returning the jury deliberated for two more days before making its verdict. There was no showing of any outside influence. Absent such a showing, the discretion of the trial judge in deciding whether sequestration is required under the circumstances existing at the time and place of the trial will not be disturbed. United States v. Acuff, 410 F.2d 463 (6th Cir. 1969), cert. denied, 396 U.S. 830, 90 S.Ct. 82, 24 L.Ed.2d 81 (1969).

After the jury had deliberated for more than two days the foreman requested that a map which had been marked for identification as “Government’s Exhibit 3” be delivered to the jury. Neither side had offered the map in evidence, but several witnesses had referred to it and had identified the location of their homes and other places in the vicinity of the robbed bank by placing initials and various symbols on the map. It is apparent that the map was displayed in such a way that the jury could see it during the trial and saw the various witnesses make their identifying marks on it. The only objection disclosed by the record occurred when one prosecution witness made two marks in response to a question and the court ruled one of the marks out. When the foreman requested that the map be delivered to the jury, the following colloquy ensued:

THE COURT: Now, may I say this: The map was marked as Government’s Exhibit 3. The Government did not offer it in evidence, nor did any of the defendants offer it in evidence; however, in view of the fact that several witnesses made reference to it, and testified in connection with it, if it is the jury’s desire to have the map, the Court, on his own motion, will send the map to the jury room, and you of course will understand that the receipt of it under these circumstances should in no sense be inferred by you as having any adverse effect on any of the parties, either on the Government or on any of the defendants, because none of them offered it in evidence. Is that clear ?
THE JURY FOREMAN: Yes, sir.
THE COURT: The jury does desire this map, and the Court has located it, and will send it to the jury, and does that answer your question, Mr. Christie?
THE JURY FOREMAN: Yes, sir.
THE COURT: Very well. You could treat it, Mr. Johnson, as a court exhibit, just purely for identification purposes, and give it the next number as a court exhibit, and please so mark it, and give it to the — or take it, rather, to the jury room, in connection with all the other exhibits and all of the evidence that you have received.
You may proceed back to the jury room.
* * *

Again, there was no objection. However, a short time after receiving the map, the jury returned its verdict. Appellant maintains it was prejudicial error to permit the jury to have during its deliberation an exhibit which had been marked for identification only and never introduced or received as evidence. This case is distinguishable from Sawyer v. United States, 112. U.S.App.D.C. 381, 303 F.2d 392 (1962), cert. denied 371 U.S. 879, 83 S.Ct. 150, 9 L.Ed.2d 116 (1962), where it was held to be error for the trial judge to send to the jury room part of a witness’ statement which he had earlier refused to admit in evidence. In the present case there is no reason to believe the introduction of the map in evidence would have been refused, or even objected to, if offered. Neither do we believe that Henry v. United States, 204 F.2d 817 (6th Cir. 1953), requires reversal. There the trial judge permitted large segments of testimony, including a sharp exchange between the judge and one witness, to be played back to the jury after the foreman had reported that the jury was unable to reach a verdict. The defendants in that case objected.

Writing for this Court, Judge John D. Martin stated the rule as follows:

There is no iron-bound, copper-fastened, double-riveted rule against the admission of evidence after both parties have rested upon their proof and even after the jury has entered upon its deliberations. Considerable latitude in discretion is vested in the trial judge in this respect.
YT "X- X- X* VY X*
In practice generally, where evidence is permitted to be introduced after the jurors have entered upon their deliberations, the admission is by consent of the parties or in relation to some non-controverted matter essential to a complete record. After the jury has reported its inability to agree upon a verdict, it is, in our opinion, incumbent upon the trial judge to exercise extreme care in reopening the case for the introduction of further testimony or in permitting any evidence to be restated or re-read to the jurors. Unless restraint is exercised by the judge, it may well be that he would permit undue emphasis to be placed upon portions of the testimony, if such portions were called for by the jurors. 204 F.2d at 820-821.

The admonition of the trial judge in permitting the jury to have the map shows that he was exercising restraint and extreme care. We have studied the map and, in light of all the circumstances, find that its submission to the jury did not prejudice the rights of the appellant.

The judgment of the District Court is affirmed.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    Wilmer KESINGER et al., Plaintiffs-Appellants, v. UNIVERSAL AIRLINES, INC., and Air Line Pilots Association, International, Defendants-Appellees.
    No. 72-1274.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 11, 1972.
    Decided Feb. 27, 1973.

      Charles Fine, of Clark, Hardy, Lewis & Fine, Birmingham, Mich., for plaintiffs-appellants.
    Robert Savelson, New York City, for defendants-appellees; Cohen, Weiss & Simon, New York City, Rothe, Marston, Mazey, Sachs, O’Connell, Nunn & Freid, Detroit, Mich., on brief.
    Before WEICK, EDWARDS and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This is another in the series of cases concerning the jurisdiction of the Civil Aeronautics Board (CAB) to resolve labor disputes incident to its approval of a merger between air carriers.

In 1968, the Air Line Pilots Association (ALPA) became the collective bargaining agent for the flight crew members of Universal Airlines. During negotiations for a collective bargaining agreement, a dispute arose over whether the existing seniority system should be maintained or altered to a strict date of hire basis. ALPA and Universal agreed to submit this dispute to binding arbitration. On May 28,1969, Arbitrator Harry Platt issued his Opinion and Award (the Platt Award), essentially retaining the system then in effect. The Platt Award was adopted and made a part of the collective bargaining agreement between Universal and ALPA. This collective bargaining agreement was extended indefinitely after its expiration on July 1, 1971, and remains in effect.

In 1970, Universal sought to acquire American Flyers Corporation, including its aircraft and 33 flight crew personnel. Universal and American applied to the CAB for approval of the merger plan.

On April 13, 1971, after a public hearing, the CAB approved the merger subject to its labor protective provisions. These provisions contain two sections relevant here. Section 3 provides:

Insofar as the merger affects the seniority rights of the carriers’ employees, provisions shall be made for the integration of seniority lists in a fair and equitable manner, including, where applicable, agreement, through collective bargaining between the carriers and the representatives of the employees affected. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with Section 13.

Section 13 provides:

In the event that any dispute or controversy * * * arises with respect to the protection provided herein, which cannot be settled by the carrier and the employee, or his authorized representative, within thirty days after the controversy arises, it may be referred, by either party, to an arbitration committee for consideration and determination, the formation of of which committee, its duties, procedure, expenses, etc., shall be agreed upon by the carriers and the employees, or the duly authorized representatives of the employees.

Also, the CAB retained jurisdiction over the merger to make any changes or modifications that it should deem necessary.

The flight crew personnel for American Flyers were represented by a separate organization called PEN-COM. Consequently the negotiations over a new seniority list involved ALPA, PEN-COM and Universal, the surviving airline. These negotiations resulted in an integrated seniority system based strictly on date of hire. . Universal implemented this plan on July 1, 1971.

On July 19, 1971, 71 members of Universal flight crews, dissatisfied with the integrated seniority list, petitioned the CAB to reopen the record of the merger proceedings and to order binding arbitration to formulate another integrated seniority list. They argued that ALPA had not fairly represented their interests and that the terms of the new list were not “fair and equitable.” The CAB declined to reopen the record and refused to pass on the merits of the appellants’ petition. In its ruling on the petition the CAB noted:

We are here asked to attempt to resolve these conflicting contentions and disputed issues and in essence to determine whether petitioners have been fairly represented by ALPA in the seniority negotiations. The Board has previously pointed out on numerous occasions, as have the courts, that the Board possesses no expertise in labor matters.
Accordingly, the Board has declined to intervene in similar circumstances. Similarly, we do not here consider that the public interest would be served by Board adjudication of matters which relate so substantially to questions of internal union procedures. Indeed, but for the context in which they presently arise, these questions probably would be beyond the Board’s jurisdiction. In reaching this conclusion, we do not intend to in any way abridge the right of the parties to pursue such other remedies as are available to them.

On September 29, 1971, appellants filed a complaint in the United States District Court for the Eastern District of Michigan against Universal and ALPA praying for an injunction and damages. The District Court dismissed the appellants’ action for lack of subject matter jurisdiction, holding that the CAB had exclusive jurisdiction to resolve the dispute.

The gist of the appellants’ grievances concerns the integrated seniority list. They argue that ALPA representatives had assured the appellants that the Platt Award would not be disturbed by the integration of the American Flyers’ flight crews; and that the integrated list, based on date of hire, was in derogation of those promises and of the Platt Award. They assert that the merger merely provided an excuse for ALPA to alter the seniority list, and that such a drastic change was not necessary to integrate the 33 American personnel into the 160 working member Universal staff.

ALPA formulated the new seniority-list and placed it before Universal and PEN-COM during the negotiations over seniority after the merger. Despite the protests of the appellants, they were not allowed to present in these negotiations their opinions concerning seniority rights. Also Universal, without waiting for employee ratification, put the new lists into effect.

The appellants therefore claim that ALPA has breached its duty of fair representation because their actions were arbitrary, unreasonable and based on considerations unrelated to the seniority lists. Also the appellants urge that ALPA has failed to follow its Constitution, By-Laws and Administrative Policy Manual, by its failure to consult with the appellants, by failure to allow the appellants to present their position in the negotiations, and by failing to submit the new seniority list to the union membership for ratification.

On appeal ALPA argues that the complaint represents an improper collateral attack on the order of the CAB, and that the jurisdiction of the CAB is exclusive to deal with labor concerns arising out of mergers. Further they assert that the order of the CAB is res judicata.

49 U.S.C. § 1378(a) (1971) requires that all mergers between air carriers shall receive approval from the CAB. 49 U.S.C. § 1378(b) (1971) requires that the CAB must find that the merger “will not be [in] consistent with the public interest” and that the conditions and terms of the merger are “just and reasonable.” Pursuant to this mandate the CAB has developed labor protective provisions, to protect the interests of employees of carriers after a merger. Under these provisions the development of a new seniority list is left primarily to private negotiations and the CAB has intervened only where the parties could not reach an agreement.

The validity of these protective provisions, including the power of the CAB to intervene directly, and its power to order binding arbitration, have been consistently upheld by the courts. American Airlines, Inc. v. CAB, 445 F.2d 891 (2nd Cir. 1971); Oling v. Air Line Pilots Ass’n., 346 F.2d 270 (7th Cir. 1965); Hyland v. United Air Lines, Inc., 254 F.Supp. 367 (N.D.Ill., 1966); See Outland v. CAB, 109 U.S.App.D.C. 90, 284 F.2d 224 (1960); Kent v. CAB, 204 F.2d 263 (2nd Cir. 1953).

The appellants rely on Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) and Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) for the proposition that the jurisdiction of the CAB in this case is not exclusive, because the complaint states a cause of action arising under the union’s duty of fair representation. Humphrey clearly establishes that the union’s duty of fair representation extends to the formulation and implementation of seniority rights. “The undoubted broad authority,” the Court also said, “of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation.” 375 U.S. at 342, 84 S.Ct. at 368. The union must exercise its obligations “in good faith and without hostility or arbitrary discrimination.” 375 U.S. at 350, 84 S.Ct. at 372. The Court further pointed out, quoting from Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), that “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” 375 U.S. at 349, 84 S.Ct. at 372. Consequently, the mere fact that the integration of a seniority list is detrimental to one group of employees, and favorable to another, does not establish that the union has reached its duty of fair representation if it has integrated the list in good faith and not on grounds totally irrelevant to seniority. In Vaca v. Sipes, supra, it was held that an action for unfair representation would lie although the same facts may also constitute an unfair labor practice cognizable by the N.L.R.B. See also Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). The appellants have alleged that the union has engaged in conduct that breaches .its duty of fair representation. ALPA asserts that even if these allegations are true, they would constitute a breach of the labor protective provisions of the merger, and consequently the appellants’ remedy must lie, if at all, before the CAB. Oling v. Air Line Pilots Ass’n, supra. In Oling a group of second officers were dissatisfied with the new seniority list after the merger of United Airlines and Capital Airlines. The new list had been formulated by an arbitrator after negotiations between ALPA and the airline had reached a standstill. After the arbitrator’s award the second officers petitioned the CAB, alleging that they had not been treated in a “fair and equitable manner” as required by the labor protective provisions. The CAB dismissed the petitioner’s action after considering the merits of their claims. In these circumstances the Seventh Circuit held that the CAB had exclusive jurisdiction to adjudicate the contentions, even though the same allegations might have constituted unfair representation under the Railway Labor Act, 45 U.S.C. § 151 et seq. (1971). Accord, Hyland v. United Air Lines, Inc. 254 F.Supp. 367 (N.D.Ill.1966); Holman v. Southern Airways, Inc., 210 F.Supp. 407 (N.D.Ga.1962). These cases also hold that the proper procedure for a party aggrieved by a CAB order is a direct appeal to a circuit court of appeals as provided by 49 U.S.C. § 1486 (1971). Oling v. Air Line Pilots Ass’n, supra; Holman v. Southern Airways, Inc., supra. The appellees further argue that even though the CAB in this instance declined to exercise its jurisdiction, implying that the appellants had remedies available elsewhere, citing Humphrey v. Moore, supra, the CAB is not the final word concerning its own jurisdiction, Pan American World Airways, Inc., v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963), and certainly not the final word concerning the jurisdiction of United States district courts.

Upon the authority of Oling v. Air Line Pilots Association, supra, and for reasons which we believe to be consistent with the statutory scheme of the Federal Aviation Act (49 U.S.C. § 1301 et seq. (1971)), we conclude that the appellants’ exclusive remedy was to appeal the CAB’s denial of the relief sought to a court of appeals. In view of this conclusion we do not deem apposite Vaca and other cases relied upon by appellants.

Although we have been unable tc find significant legislative history bearing upon the question of statutory construction, we think that it is a fair conclusion from the terms of the Federal Aviation Act itself, that Congress intended that the CAB should have exclusive jurisdiction, in approving air line mergers, to prescribe conditions, including labor protective provisions, and to adjudicate questions arising with respect to compliance or non-compliance with such conditions.

As pointed out in Oling, numerous courts have sustained the jurisdiction of the Board with respect to seniority integration in merger cases. As the Oling court also stated, with supporting authority, the principle is well settled that “collateral attacks upon administrative orders are not permissible.” See Oling v. Airline Pilots Ass’n, supra, 346 F.2d at 277.

It is true that in Oling the employees’ petition for relief was entertained by the Board and adjudicated adversely to them on the merits, whereas in the present case the appellants’ petition was dismissed by the Board upon the pleadings without reaching the merits. We do not deem this distinction to be a significant one. Apparently the Board was of the view that it had the discretionary authority to refuse consideration of the petition on the basis of the pleadings, although from our examination of the record it would appear that the appellants at least presented a substantial question to the Board and that material issues of fact were involved. The reasons assigned by the Board in its order of dismissal to justify such a summary disposal of the claim for relief appear to us to be at least highly questionable. The Board’s order indicated that it had no particular expertise in labor matters and that the petitioners had other remedies available to them. Since the Board has full authority to impose conditions for the protection of employees, it is difficult to follow the argument that it may reject an employee’s petition because of a supposed lack of expertise with respect to labor questions, particularly questions which have arisen directly from the conditions formulated by the Board itself. Moreover, the statement by the Board that the employees had other remedies would appear to be a denial of the exclusivity of the Board’s jurisdiction, contrary to the principles enunciated by the Seventh Circuit in Oling as well as by a number of district courts. See Hyland v. United Air Lines, supra; Holman v. Southern Airways, Inc., supra; and Master Executive Council Northeast Pilots v. O’Donnell, 69 CCH Lab.Cas. ¶ 13,200 (D.D.C. Nov. 8, 1972).

It follows from what we have said that upon the denial of the petition by the Board the appellants’ exclusive remedy was to appeal the denial to a court of appeals pursuant to 49 U.S.C. § 1486 (1971). Upon such appeal the court of appeals would have had express and exclusive statutory authority either to affirm the Board’s order, to modify it, or to remand the petition to the Board for further proceedings.

In accordance with the foregoing the judgment of the District Court is affirmed. The action is hereby remanded to that court, however, with directions that the dismissal shall be without prejudice to the right of the appellants to petition the Civil Aeronautics Board for a reopening of the proceeding for consideration of the appellants’ claims on their merits.

      . Appellants sue on behalf of themselves and the approximately 70 other Universal flight crew members who were dissatisfied with the seniority list and who joined in the merger reopening petition.

      . Title 49 U.S.C. § 1486 (1971), provides in material part:
      “(a) Any order, affirmative or negative, issued by the Board or Administrator under this chapter shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed by any person disclosing a substantial interest in such order.
      “(d) Upon transmittal of the petition to the Board or Administrator, the court shall have exclusive jurisdiction to affirm, modify, or set aside the order complained of, in whole or in part, and if need be, to order further proceedings by the Board or Administrator.
      “(f) The judgment and decree of the court affirming, modifying, or setting aside any such order of the Board or Administrator shall be subject only to review by the Supreme Court of the United States ...” [Italics supplied.]


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Brent STOW, Defendant-Appellant.
    No. 72-1651.
    United States Court of Appeals, Ninth Circuit.
    March 8, 1973.

      J. B. Tietz (argued), Los Angeles, Cal., for defendant-appellant.
    Lee Osborne, Asst. U. S. Atty., (argued), Eric A. Nobles, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY, HUFSTEDLER and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

Jeffrey Brent Stow was convicted of refusing to submit to induction in violation of 50 U.S.C.App. § 462(a). He makes three contentions. We find them unmeritorious and therefore affirm.

Stow contends that the local board should have reopened his classification when he requested a conscientious objector form after his local board mailed his order to report for induction. On November 17, 1970, the local board mailed an order to report to the address last reported to it by Stow. The order was returned marked: “Moved, left no address.” In spite of reasonable efforts, the board was unable to contact Stow. On December 4, 1970, Stow notified the board of his whereabouts. It was on this date, for the first time, that Stow requested a form to apply for conscientious objector status.

The request for a change of classification was not timely because it was requested after the induction order had been mailed. 32 C.F.R. § 1625.2 provides :

The classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction . unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.

Lack of timeliness can be obviated only by a showing that the tardiness was due to circumstances over which Stow had no control. This he has not done. On April 7, 1971, the local board, pursuant to an order from the State Director of Selective Service, reviewed Stow’s claim of conscientious objection pursuant to 32 C.F.R. § 1625.2. The board specifically found that there had not been a change resulting from circumstances over which Stow had no control. That finding is supported by the record.

In Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971), the Supreme Court was confronted with the question of whether crystallization of conscientious objector beliefs after the mailing of a notice to report for induction constituted a “circumstance over which the registrant had no control.” Without deciding “ . . . the nature of ‘control’ over one’s own conscience . . . ” the Supreme Court stated that “ . since the meaning of the language is not free from doubt, we are obligated to regard as controlling a reasonable, consistently applied administrative interpretation if the Government’s be such.” 402 U.S. at 105, 91 S.Ct. at 1323. In accepting the government’s contention that his crystallization did not constitute a eir-cumstance over which Ehlert had no control the Court went on to state:

The Government’s interpretation is a plausible construction of the language of the actual regulation, though admittedly not the only possible one. Given the ambiguity of the language, it is wholly rational to confine it to those “objectively identifiable” and “extraneous” circumstances that are most likely to prove manageable without putting undue burdens on the administration of the Selective Service System. 402 U.S. at 105, 91 S.Ct. at 1323.

As a result of Ehlert, it becomes clear that for purposes of 32 C.F.R. § 1625.2, the crystallization of conscientious objector beliefs after a notice of induction is not a change in the registrant’s status resulting from circumstances over which he had no control. The Court explained the rationale behind its holding:

A regulation barring post-induction notice presentation of conscientious objector claims, with the proviso mentioned, would be entirely reasonable as a timeliness rule. . . . Allocation of the burden of handling claims that first arise in the brief period between notice and induction seems well within the discretion of those concerned with choosing the most feasible means for operating the Selective Service and military systems. Id. at 102, 91 S.Ct. at 1322.

Furthermore, Stow cannot rely on the fact that he requested his conscientious objector form before he received his induction order for three reasons. First, he did not receive his order promptly because of his own failure to supply the board with a current mailing address. Second, the mere request of a conscientious objector form with nothing more does not present á prima facie claim. United States v. Lloyd, 431 F.2d 160 (9th Cir. 1970), cert. denied, 403 U.S. 911, 91 S.Ct. 2210, 29 L.Ed.2d 688 (1971); United States v. Enslow, 426 F.2d 544 (9th Cir. 1970). Third, the cutting point of timeliness is the date of mailing, not the date of receipt. 32 C. F.R. § 1625.2; cf. Ehlert v. United States, supra.

Stow next contends that the local board improperly denied him a hearing. He had made two requests for a personal appearance, both of which were made after the board mailed his induction order. The purpose of his requests was to support his conscientious objector claim. As that claim could not be heard on the merits because it was untimely, Stow cannot claim any procedural rights’ violation. 32 C.F.R. § 1625.2; cf. United States v. Stupke, 451 F.2d 997, 998 (9th Cir. 1971).

Finally, Stow contends that the original induction order lapsed. This argument is based on 32 C.F.R. § 1632.2, which allows a maximum postponement of induction of 120 days. A similar factual situation arose in United States v. Foster, 439 F.2d 29, 31 (9th Cir. 1971) where we held:

Since, however, every postponement, including those occurring after the 120 day period had run, was granted at appellant’s specific request or was due to his actions and all were for his benefit, we feel we would be taking an unnecessarily rigid approach by saying, in effect, that the local board does not have the discretion to aid the registrant by allowing him more time than the regulations specify.

The vast majority of delays in the instant case can be attributed directly to Stow’s own actions, or were the actions of the Selective Service Board for his benefit. Stow’s claim that the order lapsed and that a new order should have been issued, thereby allowing him an opportunity to prosecute his conscientious objector claim, is rejected.

Affirmed.

      . After his induction order had been mailed, Stow wrote to the local board requesting a conscientious objector form. He specifically offered late crystallization as his reason for the request. He said:

        Very recently my beliefs have become to (sic) strong (I think the expression “fixed” would be the word) that I again ask for the form.
      I will fill it out and send it back promptly. I have thought about this matter a great deal and have finally made up my mind, I mean that my conscience has now made it up for me. (Etaphasis added.)

      . The proviso referred to is that the military provide adequate means of due process so “that no inductee could be ordered to combatant training or service before a prompt, fair, and proper in-service determination of his claim.” 402 U.S. at 101, 91 S.Ct. at 1322.


author: DYER, Circuit Judge:

text:
    Donald H. WEAVER, Petitioner-Appellant, v. STATE OF TEXAS et al., Respondents-Appellees.
    No. 72-2208
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 5, 1973.
    Rehearing and Rehearing En Banc Denied April 10, 1973.

      Don H. Weaver, pro se.
    Harry H. Walsh, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, Tex., for Donald H. Weaver.
    James H. Randals, Inmate Counsel, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellant.
    Crawford Martin, Atty. Gen., Ben M. Harrison, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.
    Before BELL, DYER and CLARK, Circuit Judges.

      Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   DYER, Circuit Judge:

This is an appeal from the district court’s denial of Weaver’s petition for a writ of habeas corpus. He alleged that he was in jail at the time of the offense, and that his guilty plea was not voluntarily and knowingly made. The district court denied the writ. We affirm, but for reasons different than those expressed by the court below.

Because of the several contentions of the parties, and with the hope that litigation arising out of Weaver’s state conviction may come to an end, it is essential to explore the facts chronologically.

On October 13, 1958, after a plea of guilty, Weaver was convicted of robbery by assault in the District Court of Zava-la County, Texas, and was sentenced to twenty-five years in prison. No appeal was taken. On July 8, 1969, Weaver was released on parole. On September 2, 1969, his parole was revoked and he was held in the Bexar County jail on a charge of burglary with intent to commit theft, which offense allegedly occurred on August 31, 1969. He thus began serving time once again under his 1958 conviction.

On April 20, 1970, Weaver filed a petition for habeas in the state convicting court challenging his 1958 conviction. He asserted that he could not have committed the offense since he was in jail at the time of the robbery. On June 19, 1970, the state court denied the application and on September 3, 1970, the Court of Criminal Appeals of Texas affirmed.

On July 14, 1970, Weaver was convicted on the August 31, 1969, burglary charge, and the 1958 Zavala County conviction was used for enhancement purposes. At this time Weaver did not object to nor assert that his 1958 conviction was invalid. Weaver applied to the court below in October 1970 for ha-beas relief from his 1958 conviction, using the same allegations as he had in the state courts, i. e., that he was in jail at the time the offense was alleged to have been committed. On November 30, 1970, the district court denied relief.

Next Weaver filed a new state application for habeas on December 21, 1970, alleging that his plea of guilty was not voluntarily and knowingly made. This new application was denied on December 28, 1970. On February 1, 1971, the Court of Criminal Appeals for Texas denied Weaver’s new application.

On April 12, 1971, this Court affirmed the November 30, 1970, denial of Weaver’s application, but did not reach Weaver’s allegations concerning his guilty plea in 1958 since the state remedies had not been exhausted at the time the application had been filed. Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388, 389.

On May 10, 1971, Weaver filed another petition for habeas in the court below in which he maintained, as he had five months previously in the state court, that his plea of guilty was involuntarily and unknowingly made. The petition was denied and this appeal ensued.

The State of Texas argues that Weaver has not exhausted his state remedies; that since he is being held only under his 1970 Bexar County conviction he has no standing to attack his 1958 conviction; and that since he did not attack the validity of his 1958 Zavala County conviction when it was used for enhancement purposes in his 1970 Bexar County conviction he cannot now do so. Price v. Beto, 5 Cir. 1971, 436 F.2d 1070; Zales v. Henderson, 5 Cir. 1970, 433 F.2d 20. In denying habeas the district court essentially agreed with these contentions and further found that even though the 1958 conviction might be found invalid, Weaver’s petition should be denied because he would still be in custody under the 1970 conviction.

Our explication of the historical facts foreclose the State’s arguments. Weaver has obviously exhausted his state remedies with respect to his 1958 conviction. His standing is properly predicated upon the fact that his parole under that conviction was revoked on September 2, 1969, and he is still serving time. While his failure to attack the validity of his 1958 conviction, used in his 1970 conviction for enhancement purposes, prevents him from using that as a ground for habeas relief with respect to his 1970 conviction, Price and Zales, supra, it does not foreclose his habeas attack made directly on his 1958 conviction. Finally, the magistrate’s finding, approved by the district court, that “Habeas Corpus is available only when a ruling in petitioner’s favor will result in his immediate release or will cause the restraints on his liberty to cease,” is, in the context of this case, erroneous. Weaver is still serving his sentence under the 1958 conviction. If that conviction should now be found invalid the State would have no legal basis for continuing Weaver’s incarceration under the 1958 conviction, but could keep him in prison under the 1970 conviction. This detention, contingent upon the invalidation of the 1958 conviction, does not bar Weaver from petitioning for a writ of habeas corpus to attack either conviction. Peyton v. Rowe, 1968, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426; Walker v. Wainwright, 1968, 390 U.S. 335, 88 S.Ct. 962,19 L.Ed.2d 1215.

On the other hand, Weaver’s contention, again made on this appeal, that he was in jail at the time of the offense, need not be considered a second time. Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388. Thus the only issue that was properly before the district court and that is before us on appeal is the validity vel non of Weaver’s guilty plea used as a predicate for his 1958 state conviction and sentence.

The underlying facts presented by Weaver to support his assertion that his plea was not voluntarily and understanding^ made are as follows.

While Weaver was in custody the alleged victim made a false and illegal identification. The victim, however, positively identified Weaver as the robber although Weaver denies ever having seen the victim. Whether under the circumstances in which the identification was made such evidence would have been admissible at trial is of no moment. See McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763.

We are likewise unimpressed with the argument that Weaver’s plea was coerced because upon advice of his retained counsel he “reluctantly agreed, through fear of receiving a life sentence, to plead guilty for the twenty-five years offered by the * * * District Attorney of Zavala County, Texas.” North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; Brady v. United States. 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Roberts v. United States, 5 Cir. 1973, 472 F.2d 1195; Schnautz v. Beto, 5 Cir. 1969, 416 F.2d 214; Parrish v. Beto, 5 Cir. 1969, 414 F.2d 770, cert. denied, 1970, 396 U.S. 1026, 90 S.Ct. 606, 24 L.Ed.2d 522; Rogers v. Wainwright, 5 Cir. 1968, 394 F.2d 492.

Weaver’s claim that the District Attorney misinformed him concerning the date and time of the robbery is without merit. This was substantially dealt with in Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388. On collateral attack by habeas it does not rise to a constitutional level.

Finally, Weaver’s argument that his counsel had inadequate time to prepare his defense is unsupportable. Weaver was first indicted for robbery with firearms, a felony capital offense. Seven days before trial he was reindicted for robbery by assault, enhanced by a prior conviction for burglary with intent to commit theft, which, upon conviction, carried an automatic life sentence. Counsel had from April 25, 1958, to October 13, 1958, to prepare for trial on the merits. The second indictment did not change the essential elements of the offense; it simply charged a prior conviction for enhancement purposes if Weaver were found guilty. Under the circumstances a denial of a motion for a continuance poses no constitutional question.

The judgment of the district court is Affirmed.

      . After exhausting his state remedies, Weaver sought habeas in the district court claiming that his 1970 conviction should be set aside because the state court should have suppressed evidence connecting him with the robbery for which he was being tried. The district court denied relief and in a companion appeal we affirmed. Weaver v. Texas, 5 Cir. 1973, 472 F.2d 1407.

      . Weaver v. Texas, 5 Cir. 1971, 441 F.2d 388.


author: STEPHENSON, Circuit Judge.

text:
    Adolph M. ROTERMUND, Appellant, v. UNITED STATES STEEL CORPORATION et al., Appellees.
    No. 72-1405.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 12, 1973.
    Decided March 7, 1973.

      James L. Sullivan, St. Louis, Mo., for appellant.
    Thomas L. Croft and Albert E. Schoenbeck, St. Louis, Mo., for appellees.
    Before LAY, HEANEY and STEPHENSON, Circuit Judges.

      . Id. at 71.

   STEPHENSON, Circuit Judge.

This cause initially was filed in the Circuit Court of the City of St. Louis, Missouri. It was removed to federal court by United States Steel pursuant to removal jurisdiction under 28 U.S.C. § 1441(c) based upon plaintiff-appellant Rotermund’s separate and independent claim against Steel in Count I of the complaint. Rotermund now appeals from entry of summary judgment which was entered May 26, 1972. The district court’s opinion is reported at 346 F.Supp. 69 (E.D.Mo.1972).

The original action was for specific performance of an alleged agreement entered into between defendants-appellees, Powell and United States Steel under date of June 28, 1965. Count I of Rotermund’s complaint sought specific performance against USS which would require USS to purchase shares of Basic Materials common stock owned by Rotermund. Count II alleged a conspiracy by all defendants to induce USS to violate its alleged obligation to purchase stock from Rotermund under the 1965 agreement and that Rotermund was discharged from Basic in furtherance of the alleged conspiracy. Count III alleged a violation of the Missouri Service Letter Statute by Basic.

The trial court determined as a matter of law that U. S. Steel under the agreement was not obligated to purchase Rotermund’s stock and entered summary judgment accordingly on Count I. In view of its finding that USS did not violate the agreement, the court further ruled there could be no conspiracy to induce USS to breach the agreement and therefore entered judgment in favor of all defendants on Count II. See, Howe v. St. Louis Union Trust Co., 392 S.W.2d 625, 628 (Mo.1965). Because the remaining Count III, a non-removable claim, required construction of a Missouri statute, the trial court exercised its discretion and remanded it to the state court for disposition. See, Murphy v. Kodz, 351 F.2d 163, 167-168 (9th Cir. 1965).

Since the factual circumstances together with the relevant portions of the 1965 agreement, the 1968 option, and the 1968 amendment are set out in detail by the trial court in its opinion at 346 F.Supp. 69, we shall confine our statement to those facts essential to our determination.

There are three agreements relevant to this cause. The only parties to all three agreements are USS and Powell.

Pursuant to Section 5 of the 1965 agreement, USS, or its nominee, was given the option to purchase all the Basic stock which Powell would “now or hereafter own” during the fifteen year period from the making of the agreement (or within 20 years if Steel owns, or is obligated under any circumstance to purchase, any obligations of Basie) under three circumstances:

(a) after Powell’s death;
(b) after Powell’s retirement from the active management of Basic; or
(c) if the book value of Basic common shares would fall 20% below book value as disclosed by auditing statements for either of the two immediate preceding years.

Section 6 states in substance that during the same 15-year period, Powell, his guardian, his estate or his trustee would have the option to require USS to purchase all his stock in Basic under the same circumstances as (a) and (b) stated in Section 5.

At the time of the 1965 agreement, Rotermund was an officer of Basic, and owned jointly with his wife 2,000 shares of Basic common stock. Section 10 of the agreement is the basis of Count I of Rotermund’s complaint. It reads as follows:

“If during the term of this agreement USS shall purchase Powell’s stock in Basic pursuant to the terms hereof USS shall within thirty (30) days after such purchase irrevocably offer for sixty (60) days to acquire on the same terms and conditions any stock of Basic which, according to its records, was held by Oliver Keller, Adolph M. Rotermund, Stephen F. Powell or Gale H. Powell on the date twelve (12) months prior to the date of such purchase. Acquisitions of stock by USS pursuant to this section shall be made within fifteen (15) days of acceptance of USS’s offer and tender to USS of the certificates of stock which is the subject of such acceptance.” (Emphasis supplied.)

On July 30, 1968, USS and Powell entered into an agreement granting USS an option to purchase 25,000 common shares of Basic for $1,696,000.00 on condition that Powell would surrender to Basic the warrants he had acquired under the 1965 agreement.

That same day, the 1965 agreement was amended, to become effective only if USS exercised its option to purchase 25.000 shares of Basic stock pursuant to the 1968 amendment. Principally, Section 5 was amended to delete paragraph 5(b) under which USS had the option to purchase Powell’s stock after his retirement. Section 6 likewise deleted the retirement provision with respect to Powell’s option to require USS to purchase his stock. Additionally, Section 10 was amended to provide that the contemplated 1968 purchase by USS of 25.000 shares of Powell’s stock in Basic “shall not constitute a purchase within the meaning of the term as used in this paragraph 10.”

In October of 1968, USS exercised its option under the 1968 agreement to purchase 25,000 shares of Powell’s stock. Approximately 3 years later, in July of 1971, Rotermund demanded that USS purchase his 2,000 shares of Basic for the same price per share as USS had paid for Powell’s in 1968.

Rotermund raises three main issues which we discuss seriatim. That the trial court erred:

(1) in failing to hold that Rotermund was a third party creditor or donee beneficiary under the 1965 agreement, and that his rights under that agreement could not be changed by the 1968 amendment without his consent.
(2) in not holding that the 1968 sale of the 25,000 shares to USS and the 1968 amendment to the 1965 agreement together triggered events which obligated USS to purchase Rotermund’s stock in Basic.
(3) in granting summary judgment for defendants on Count I, thereby precluding Rotermund from proceeding on Count II, for the reason that there is a disputed issue of fact as to whether Powell’s sale of the Basic shares to USS was pursuant to the 1965 agreement.

I.

In support of his first assigned error, Rotermund refers us to Black and White Cabs of St. Louis, Inc. v. Smith, 370 S.W.2d 669 (Mo.App.1963) for the proposition that “where the contract creates a right in favor of a third person, the law presumes that the party to the contract intended to confer benefits on the third person and the third party beneficiary has the right to enforce the contract . . . .’’Id,, at 675. To be sure, we have no conceptual difficulty with this principle-. However, its application is delimited by the general rule, as recognized by the trial court, that “[o]ne suing on a contract allegedly made for his benefit as a third-party beneficiary must accept the contract as it was made by the parties thereto; and he is in no better position than, and his rights are no greater than those of, the contracting party through whom he claims.” Stephens v. Great Southern Savings and Loan Ass’n, 421 S.W.2d 332, 337 (Mo.App.1967). In this connection, the trial court held that “only a purchase pursuant to the terms of the 1965 agreement would give rise to a third-party beneficiary claim by [Roter-mund]” since the 1965 agreement which he relies upon obligates USS to purchase Rotermund’s 2,000 shares in Basic only if USS first were to purchase “Powell’s stock in Basic pursuant to the terms thereof.” We fully agree with the trial court’s holding.

The 1965 agreement provides that an option to purchase the Powell shares by USS could not be made pursuant to the terms thereof unless: (1) Powell died, or (2) Powell retired from the management of Basic, or (3) the book value of stock would become less than a specified standard. The record before us indicates that none of these conditions precedent had occurred. Thus, no present obligation to Rotermund as a third-party beneficiary had been breached, and USS, therefore, is not obligated to purchase Rotermund’s stock under the 1965 agreement.

Inasmuch as the trial court based its determination of defendants’ motion for summary judgment solely upon the terms of the 1965 agreement as originally drawn and relied upon by Rotermund, we hold that the trial court did not err in determining it unnecessary to decide whether the 1965 agreement could be amended without Rotermund’s consent insofar as it affects his rights as a third-party beneficiary.

II.

Under Rotermund’s next assigned error, he alleges that the trial court erred in failing to hold that the purchase by USS of 25,000 shares of Powell’s stock and the 1968 amendment to the 1965 agreement together constituted an exercise of the option and the triggering of events which obligated USS to buy Roter-mund's 2,000 shares in Basic.

Rotermund’s rights under the 1965 agreement are based wholly upon the rights of Powell thereunder. The 1965 agreement relied upon by Rotermund provides in Section 10 that USS would be obligated to purchase Rotermund’s stock upon condition that USS first exercise its option to purchase aU Powell’s shares pursuant to the 1965 agreement. As we have determined, it is evident from this record that none of the triggering circumstances enumerated under Sections 5 and 6 had taken place: Powell had not died, nor had he retired, nor had the book value of the stock fallen below the given standard. Moreover, Section 10 of the 1968 amendment expressly states that the purchase of 25,000 shares of Powell’s stock by USS would not be construed as constituting a “purchase” within the meaning of Section 10 of the 1965 agreement. Since Powell was not entitled to compel USS to purchase all his common shares of Basic stock, Rotermund is in no better position. See, Allen v. Globe-Democrat Publishing Company, 368 S.W.2d 460,463 (Mo.1963); Stephens v. Great Southern Savings & Loan Ass’n, 421 S.W.2d 332, 337 (Mo.App.1967); Noles v. Terminal R.R. Ass’n of St. Louis, 154 S.W.2d 606, 609 (Mo.App.1941); Williston on Contracts, (3rd Ed) § 364A. Consequently, Rotermund cannot now force upon USS a purchase of his 2,000 shares.

III.

Rotermund lastly urges that the issue of whether the sale of the 25,-000 Powell shares was pursuant to the 1965 agreement raises a question of fact, thus rendering improper the entry of summary judgment. We have stated before that when a motion for summary judgment is made to the trial court, only one determination is before the court — whether or not there are issues of fact to be tried. Minnesota Bearing v. White Motor Corp., 470 F.2d 1323 (8th Cir. January 9, 1973); 3 B & H, Federal Practice and Procedure § 1231 at 101 (Wright Ed. 1958). Moreover, “the right to judgment must be shown ‘with such clarity as to leave no room for controversy, and . that . . . [Rotermund] would not be entitled to recover under any discernible circumstances’ ” Minnesota Bearing v. White Motor Corp., supra, at 1328; Cervantes v. Time, Inc., 464 F.2d 986, 993 (8th Cir. 1972); Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213, 216 (8th Cir. 1951).

In Elbow Lake Cooperative Grain Co. v. Commodity Credit Corp., 251 F.2d 633, 637 (8th Cir. 1958) we said that “ambiguity in a contract cannot be created by the mere assertion of a party to it.” Here there are no disputed facts. The only question before the trial court was whether as a matter of law the purchase of Powell’s 25,000 shares by USS obligated USS to purchase the Rotermund stock. We have effectively covered the waterfront in determining that none of the triggering conditions precedent to purchasing Rotermund’s shares have occurred. Rotermund suggests, however, that an examination of Basic’s books by the trial court “might prove that some of the events specified in the 1965 agreement may have transpired to trigger the exercise of the option.” Rotermund was afforded ample opportunity to apprise the trial court of facts relevant to the value of Basic stock since consolidated financial statements for each year from 1961 through 1970 inclusively were produced at the Powell deposition pursuant to Rotermund’s request. Nevertheless, this record is devoid of any attempt by Rotermund to provide the trial court with such relevant data.

Rotermund additionally urges that in-terrogatoris submitted to USS were not answered; thus the court’s ruling on May 26, 1972 precluded discovery and foreclosed him from proving his case. Fed.R.Civ.P. 56(c) states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . . . ” (emphasis supplied). USS filed its motion for summary judgment on September 23, 1971. On November 2, 1971, USS filed its supporting memorandum. On the same date, separate motions for summary judgment and supporting briefs were filed by Basic and Powell. On November 5, 1971, upon his own oral request, Rotermund was granted an additional 20 days in which to file affidavits and suggestions in opposition to the separate motions. On December 17, 1971 the motions for summary judgment were taken as submitted. By written agreement of the parties, depositions taken prior to December 17, 1971 were to be considered by the trial court in ruling upon the motions.

In view of the time available to Rotermund to propound interrogatories prior to the date of submission coupled with the trial court’s proper adherence to Rule 56(c) in considering those matters on file by December 17, 1971, this contention by Rotermund forms no basis for setting aside summary judgment. We hold, therefore, that the trial court properly entered summary judgment as to Count I of the complaint. Cf., Cervantes v. Time, Inc., supra, 464 F.2d at 993.

The only remaining question is whether Basic, Powell and USS conspired together to induce USS to violate its alleged contractual obligation to purchase Rotermund’s stock, and that whether in furtherance of this conspiracy, Roter-mund was fired as an employee of Basic.

Specifically, Rotermund argues that defendants excluded the retirement provision of the 1965 agreement to keep Rotermund from being eligible for stock should Powell retire. As we have suggested repeatedly, this agreement is not self-executing. The record before us shows that at the time this action commenced, Powell had not retired from Basic. Even assuming that he had, however, under the 1965 agreement this event would have done no more than trigger an option on the part of Steel to purchase Powell’s shares. If USS were to purchase all Powell’s shares, then, and only then, would it be obligated to Rotermund.

A Civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties “to inflict a wrong against or injury upon another,” and “an overt act that results in damage.” Neff v. World Publishing Co., 349 F.2d 235, 257 (8th Cir. 1965). Under Missouri law, “[t]he gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy . . . . ” Contour Chair Lounge Co. v. Aljean Furniture Mfg. Co., 403 S.W.2d 922, 926 (Mo.App. 1966).

Under the instant circumstances, damages would accrue only if there had been an actual breach of the contract. Since no breach has occurred, we label this aspect of Rotermund’s argument to be without foundation.

Finally, Rotermund has failed to demonstrate that any genuine issue of fact relative to his allegation that defendants conspired to fire him from his employ with Basic. As noted in Cervantes v. Time, Inc., supra, 464 F.2d at 993, the “extreme nature” of summary judgment “does not lighten the burden of a party against whom a motion therefor is interposed.” Fed.R.Civ.P. 56(e). Thus, as spelled out by the Rule:

“ . . . [A]n adverse party may not rest upon the mere allegations or denials of his pleading, but his response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”

By reason of the absence in this record of any genuine factual issue to be tried, the judgment of the trial court must be affirmed.

      . Vernon’s Ann.Mo.Stat. § 290.140 (1965).

      . 346 F.Supp. 69, 70-71.

      . Id. at 72-73.

      . Basic and Steel suggest that despite what label might be attached to Rotermund’s beneficiary status, in paragraph 22 of the 1965 agreement the parties signatory thereto expressly retained the right to rescind or amend the original agreement without obtaining the consent of any third party beneficiary. We disagree. Paragraph 22 simply states that if the agreement is to be “changed, waived, discharged or terminated” at all, it must be done in writing. Paragraph 22 cannot, therefore, be construed as an express reservation of right to amend the 1965 agreement as against a third party beneficiary. Instead, we interpret it to be no more than a recital of a general principle of contract law otherwise applicable. See, Restatement of Contracts § 407, in connection with V.A.M.S. § 432.020 (1952) (rescission or modification of a contract within the Statute of Frauds must be in writing) ; and see generally, 44 A.L.R.2d 1270.

      . Even if an examination of Basic’s financial statements were to prove that some of the events specified in the 1965 agreement transpired, it still remains that the purchase of 25,000 shares of Powell’s stock did not constitute a purchase of all the Powell shares within the meaning of the 1965 agreement. Since 25,000 shares constitutes less than % of Powell’s holdings, we are not faced with the problem of determining whether “all” means “substantially all.”

      . We note that correspondence appears in the record to Judge Regan from Roter-mund’s counsel stating: “Certainly the court cannot take into consideration anything other than those depositions taken prior to December 17, 1971 in considering the motions for summary judgment, but in an effort to be prepared for trial in the event summary judgment is not granted to defendants I felt it necessary to continue with the discovery process.”

      . We have thoroughly examined the affidavits and depositions contained therein.

      . The trial court properly remanded Count III to State court for its determination since Count III involves the construction of a Missouri statute and the removing defendant has been eliminated. See, 1A J. Moore, Federal Practice ¶ 0.168 [4.-1] at 1342 (2nd Ed. 1965).


author: PHILLIPS, Chief Judge.

text:
    GLEN MANOR HOME FOR the JEWISH AGED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1537.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 5, 1972.
    Decided Feb. 22, 1973.

      J. Mack Swigert, Taft, Stettinius & Hollister, Cincinnati, Ohio, for petitioner.
    Frank Vogl, N.L.R.B., Washington, D. C., for respondent; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Deputy Asst. Gen. Counsel, Frank Vogl, Atty., N.L.R.B., Washington, D. C., John C. Getreu, Director Region 9, N.L.R.B., Cincinnati, Ohio, on brief.

      Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   PHILLIPS, Chief Judge.

The Glen Manor Home for the Jewish Aged brings this petition to review and set aside a National Labor Relations Board order and decision finding it in violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act. 196 N.L.R.B. 171.

' The Home is a non-profit institution located in Cincinnati and is licensed by the city as a nursing home and as a rest home. It maintains constant health services for its approximately 80 residents. A physician is on call at all times and is present at the Home three times weekly. Constant nursing care is administered by a staff of four registered nurses, three graduate licensed practical nurses (GLPN’s) and ten nurses’ aides. When residents become ill, the Home attempts to care for them as long as possible, but when they reach the critical stage they are discharged to a hospital or a private nursing home. The Home has no major medical facilities. All services necessary for residents are provided, including food preparation, laundry services, housekeeping and maintenance. Average length of residence at the Home is three and one-half years.

In 1970 the gross revenue of the Home was $342,039. Approximately $60,000 of this came from the State-administered federal-state Medicaid program. During 1970, the Home paid $18,000 to the Cincinnati Gas & Electric Company, $2,400 to Cincinnati Bell Telephone and $20,000 to Shillito’s department store, all of which are engaged in interstate commerce.

On July 12, 1971, the National Union of Hospital and Nursing Home Employees, Local 1099 H, Retail, Wholesale & Department Store Union, AFL-CIO, filed a representation petition and requested an election be held among the Home’s service and maintenance employees. On September 2, the Regional Director issued his decision and direction of election after finding that the Home was subject to Board jurisdiction as a nursing home under the standards of University Nursing Home, Inc., 168 N.L.R.B. 263 (1967). This decision included two of the GLPN’s in the bargaining unit and excluded the third. The Board denied the Home’s petition for a review, determining that the two GLPN’s included in the unit should be permitted to vote in the representation election subject to the challenge procedure. It should be noted that throughout the representation proceedings the Home disputed the Board’s asserted jurisdiction over it.

The representation election was conducted on October 1, 1971, with the Union winning, 19-15. The Union was certified as the unit’s collective bargaining agent, after which the Home refused to bargain with it. The Union thereupon filed a complaint against the Home alleging violations of §§ 8(a)(1) and 8(a)(5). The defense of the Home in the unfair labor practice proceedings was the alleged impropriety of the bargaining unit. The Board, on May 22, 1972, found that the refusal to bargain was an unfair labor practice and violated §§ 8(a)(1) and 8(a)(5) of the Act.

The Board held that the improper unit claim of the Home concerning the GLPN’s was not a valid defense to the unfair labor practice charge because there was no doubt as to the majority status of the union. The Board suggested bargaining over the unit placement of the GLPN’s or, failing at that, a petition for unit clarification.

The Home now seeks review of the order and decision of the Board on two grounds: 1) the Board improperly asserted jurisdiction over it, and 2) the unit outlined by the Board in the representational proceedings was improper. We examine the issues in order.

1) Jurisdiction

It is well established that Congress, in passing the National Labor Relations Act, gave and intended to give the Board the fullest permissible jurisdiction under the Commerce Clause of the Constitution. N.L.R.B. v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963); Polish National Alliance v. N.L.R.B., 322 U.S. 643, 647, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944). The statutory jurisdiction of the Board extends to all representation questions and unfair labor practices “affecting commerce.” 29 U.S.C. §§ 159(c) (1) , 160(a).

Because of several factors, including limited resources and manpower, the Board for the first fifteen years of its existence determined on an ad hoc case-by-case method whether to assume jurisdiction in a particular case. This was replaced in 1950 with the pronouncement of a series of “yardsticks” to determine whether the Board would assume jurisdiction in a specific type of case. These standards, issued in a series of 1950 decisions by the Board, were essentially dollar volumes. The Board held that if these dollar volume mínimums of the value of inflow or outflow were exceeded in a particular case then it would take jurisdiction. In other cases it would decline to act. Different yardsticks were promulgated for different industries. The yardsticks were raised in 1954 and then lowered in 1958. See Sie-mons Mailing Service, 122 N.L.R.B. 81 (1958). In 1959, Congress validated this Board practice, extending over a span of 20 years, of declining jurisdiction in certain cases, by the enactment of § 14(e)(1) of the Act. 29 U.S.C. § 164(c)(1). This amendment authorizes the Board to decline jurisdiction by “rule of decision or by published rules.”

There is no statutory jurisdiction over non-profit hospitals. 29 U.S.C. § 152 (2) . The Board originally exercised no jurisdiction over proprietary hospitals, either, Flatbush General Hospital, 126 N.L.R.B. 144 (1960), but asserted jurisdiction over them in 1967. Butte Medical Properties, 168 N.L.R.B. 266 (1967). On the same day, the Board asserted jurisdiction for the first time over proprietary nursing homes, University Nursing Home, 168 N.L.R.B. 263 (1967), and announced a gross volume of business yardstick of $100,000. The Board, in that decision, found that there were over 20,000 public and private nursing homes in the country at that time, caring for from one to two per cent of the nation’s population. By 1965, the annual gross national expenditure for nursing home care was $1.2 billion, up 754 per cent from the 1950 expenditure of $142 million.

The Board did not exercise jurisdiction over non-profit nursing homes until, in 1968, a District Court held that the Board could not constitutionally assert jurisdiction over proprietary nursing homes while renouncing jurisdiction over non-profit nursing homes. Council 19, AFSCME v. N.L.R.B., 296 F.Supp. 1100 (N.D.Ill.). That court held that once the Board exerted jurisdiction over a class of employers (nursing homes), as it had in University Nursing Home, supra, it could not renounce jurisdiction over an entire category of employers within that class (non-profit nursing homes). Soon afterwards, in the same case, the Board asserted jurisdiction over non-profit nursing homes. Drexel Home, Inc., 182 N.L.R.B. 1045 (1970). The Board found, in Drexel, that the non-profit nursing home exercises the same kind of impact on interstate commerce as a proprietary nursing home. The Board adopted the same $100,000 yardstick for non-profit nursing homes as it had previously adopted for proprietary homes.

The Home here makes three separate attacks on the jurisdiction of the Board. First, it maintains that Drexel, under whose authority the Board assumed jurisdiction of this case, is an impermissible assertion of jurisdiction by the Board; second, it asserts that the $100,000 yardstick is arbitrary and capricious; and third, it claims that it is not a nursing home within the meaning of the Drexel rule.

The Board’s contention that the Home should be barred from making its jurisdictional claims on appeal is ill-founded. The Home maintained a continuing jurisdictional objection in the representation proceedings and was barred from making these claims in the unfair labor practice proceedings before the Board in the absence of newly found evidence. N.L.R.B. Rule No. 102.67(f); Howard Johnson Co., 164 N.L.R.B. 801 (1967); Cf. May Dept. Stores Co. v. N.L.R.B., 326 U.S. 376, 379, 66 S.Ct. 203, 90 L.Ed. 145 (1945.) It appears that the exact nature of the jurisdictional objection may be different in this Court from the specific objection before the Board. This is not, however, controlling.

This court has held that the exercise of jurisdiction by the Board is within the administrative discretion of the Board and will not be reversed without demonstration of an abuse of that discretion. Lucas County Farm Bureau Cooperative Ass’n v. N.L.R.B., 289 F.2d 844, 845-846 (6th Cir.), cert. denied, 368 U.S. 823, 82 S.Ct. 42, 7 L.Ed.2d 28 (1961); N.L.R.B. v. Guernsey-Muskingum Electric Co-Op, 285 F.2d 8, 11 (6th Cir. 1960). We have held further that the Board’s assertion of jurisdiction in violation of its own self-imposed yardstick is not improper. N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d 758, 760 (6th Cir. 1964).

We cannot hold that the Board’s decision to assert jurisdiction over non-profit nursing homes was an abuse of discretion. The Home seeks to have this court impose an analogy between non-profit hospitals, which are statutorily exempt from Board jurisdiction, and non-profit nursing homes. Assuming, without deciding, that such an analogy would have been permissible, we decline to mandate it to the Board. The Board apparently has decided instead that there is a closer analogy between non-profit and proprietary nursing homes.

The Home has delineated ample evidence in the legislative history of the Labor Management Relations Act that the Senate committee did not originally exclude hospitals from N.L.R.B. jurisdiction in the preliminary draft of what became § 2(2) of the Act because, in the words of Senator Taft, “the Committee felt that hospitals were not engaged in interstate commerce and . . . their business should not be so construed.” 2 Legislative History of the Labor Management Relations Act (1947) at 1464. While this may well be true, § 2(2) as enacted does not exclude non-profit employers generally. Only non-profit hospitals are exempted from the class of employers subject to the provisions of the Act and the jurisdiction of the N. L. R. B. 29 U.S.C. § 152(2).

Conditions in the health care industry have changed substantially since 1947. The Board, in the Universal Nursing Home decision in 1967, noted that there was a 754 per cent increase in nursing home care expenditures between 1950 and 1965. 168 N.L.R.B. at 264. This data now is over seven years old. The assertion of jurisdiction by the Board over the non-profit nursing homes cannot be viewed as an abuse of the Board’s discretion, in light of the nursing home industry’s impact on the economic life of this country.

As far as the $100,000 yardstick is concerned, we hold that this was also a permissible standard within the Board’s discretion. We reemphasize that the Board’s permissible jurisdiction is as broad as the Commerce Clause.

The Home seeks to have this court hold that it really is not a nursing home within the Drexel rule. This same contention was made by the home for the aged in Drexel itself. This is a fact determination within the jurisdiction of the Board and its determination is entitled to great weight. We find no abuse of discretion. The Board’s decision that Glen Manor was an industry “affecting commerce” similarly was not an abuse of discretion.

We hold that the Board’s assertion of jurisdiction over non-profit nursing homes generally and the Glen Manor Home for the Jewish Aged in particular was not improper.

2) Unit Determination

The Home has claimed, before the Board and this court, that there was an improper unit determination made by the Board in including two of the GLPN’s in the bargaining unit. The Home claims that these two employees are supervisors. A search of the record reveals that the Regional Director in his decision in the representation case did hold to this effect. The Board, however, in its actions in both the representation case and the unfair labor practice proceeding, has not ruled on the propriety of the inclusion of these two GLPN’s within the unit. Instead it has suggested arbitration or bargaining or a petition for unit clarification, which is available to either party. 29 CFR § 102.60(b). It should be noted that their inclusion or exclusion will not affect the Union’s majority status within the unit because of the 19-15 vote in the representation election. We, therefore, make no ruling on their status.

We deny the petition of the Home and grant the Board’s cross application to enforce its order.