author: CRAVEN, Circuit Judge:

text:
    Doris A. TAYLOR, Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellee.
    No. 74-1570.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 2, 1974.
    Decided March 17, 1975.

      Dennis M. Sweeney, Baltimore, Md., for appellant.
    James E. Anderson, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief) for appellee.
    Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
   CRAVEN, Circuit Judge:

This is an appeal under 42 U.S.C. § 405(g) (1970) from the denial of Social Security disability benefits. The adverse decision of the examiner, after a hearing, was affirmed by the appeals council; the district court granted the Secretary’s motion for summary judgment. The question presented on appeal is whether the Secretary, upon the claimant’s prima facie showing of disability, satisfied his then-created burden of going forward with proof of the claimant’s vocational capacity to perform other jobs. Finding no substantial evidence in the record to support the asserted vocational capacity, we reverse and remand with direction to enter judgment for Mrs. Taylor.

I.

It is not disputed that Mrs. Taylor presented a prima facie case of disability. Her prior customary occupation was that of clothes presser in a laundry. In November 1969 the lower portion of her left lung was removed. Subsequent medical history indicates diagnosis and treatment of diabetes, chronic bronchitis, thyroid condition, and arteriosclerotic heart disease with accompanying symptoms of shortness of breath and weakness and pain in the left side and limbs. Since the clothes presser job required her to stand, walk, and stoop all day, with the attendant extremes of temperature and dampness, a return thereto was foreclosed.

As the lower court correctly ruled, this prima facie case of disability to perform her customary occupation due to a medical condition shifted the burden of going forward from her to the Secretary. Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968); Hernandez v. Weinberger, 493 F.2d 1120 (1st Cir. 1974); Meneses v. Secretary of H.E.W., 143 U.S.App.D.C. 81, 442 F.2d 803 (1971).

The Secretary’s burden under the statute, 42 U.S.C. § 423(d)(2)(A), is twofold: (1) the claimant, given his age, education, and work experience, has the capacity to perform a specific job (2) which exists in the national economy. Garrett v. Richardson, 471 F.2d 598 (8th Cir. 1972). Addressing himself to the former — the only one at issue here — the Secretary identifies three possible sources of the substantial evidence needed to sustain his finding that Mrs. Taylor was capable of performing either as a keypunch or telephone operator, and therefore was not disabled. We find none of them persuasive.

Principal support was sought from the opinion of Dr. Antlitz, a specialist in cardiovascular diseases, who examined Mrs. Taylor in November 1972 at the request of the appeals council. His report, inter alia, stated:

The patient may be limited by the various disease states and post operative condition but does not appear to be completely disabled. She should be able to perform light and sedentary type work activity.

Additionally, hospital out-patient records indicated a recommendation for vocational rehabilitation.

Citing the foregoing, the lower court concluded that the following finding and conclusion of the appeals council was supported by substantial evidence:

4. The claimant, who is 41 years old and has an llth-grade education, retains the ability to sit, stand, walk about and to use her arms and hands in light and sedentary occupations, such as keypunch operator and telephone operator. These occupations exist in significant numbers in the area where she resides.

Mrs. Taylor readily agreed with the use of a physician’s expertise to establish her physical ability to perform “light and sedentary” work in general. Error is claimed, however, in the further finding that she possessed the specific skills to perform as a keypunch or telephone operator.

The proposition that the Secretary may establish a specific vocational ability solely through medical evidence has been soundly rejected. We find the Seventh Circuit’s language highly persuasive on this point.

While the conclusions of a physician are probative with respect to a claimant’s physical symptoms, they cannot alone support a finding of employability. A physician can adequately offer his expertise, as this one did, to show that a claimant is physically able to perform “substantial gainful” employment. But, other factors, extraneous to a physical diagnosis, enter into an evaluation of a claimant’s ability to work.

Orzel v. Finch, 445 F.2d 150, 154 (7th Cir. 1971) (emphasis in original); accord, Hernandez v. Weinberger, supra, Garrett v. Richardson, supra.

Anticipating, perhaps, our agreement with Orzel, the Secretary asserts that his finding of employability rests on independent vocational evidence, namely, that Mrs. Taylor had received “some” training as a keypunch operator. We are referred to Mrs. Taylor’s- testimony before the hearing examiner in May 1972, set out in the margin. But her statements run counter to the Secretary’s finding: she found keypunching “very difficult to do” and, after six months, had not yet finished the six-week course, although she was “working at it.” In any case, her testimony hardly supplies the quantum of evidence necessary to show actual vocational skill. Similarly inconclusive testimony by a claimant, a laundry presser, concerning her brief stint during pregnancy with the laundry’s darning and weaving machine “in no way” satisfied the Secretary’s burden in Hernandez v. Weinberger, supra, 493 F.2d at 1123.

A third source is advanced by the Secretary to supply the needed proof of employability: he may administratively “notice” that Mrs. Taylor possesses the specific vocational capacity for the jobs of keypunch and telephone operator. But while this and other circuits have agreed that the Secretary may administratively notice the existence of such jobs in the economy, facts pertaining to the capacity of a specific individual can be supplied only by particularized proof. See Hernandez v. Weinberger, supra; 2 K. Davis, Administrative Law § 15.03 at 353 and § 15.10 at 403 (1958). To allow the Secretary to “notice” a fact that is both complex and disputed would undermine an explicit congressional direction to adjudicate disability claims on an individual case-by-case basis.

It is clear that the Secretary’s finding of vocational capacity is supported neither by substantial evidence in the record nor by any facts susceptible of administrative notice. The entry of summary judgment in his favor must therefore be vacated.

II.

Addressing the question of remand, the Secretary urges that we not end the litigation but instead allow another administrative hearing. It is suggested that if there were a flaw in the proceedings below it consisted simply of an understandable failure on the part of the hearing examiner to call a vocational expert as a witness. The unstated assumption seems to be that any such expert will, of course, testify that Mrs. Taylor possesses the necessary skill to work as a keypunch operator and telephone operator. The assumption seems doubtful in the present state of the record. Taylor has tried for six months to complete a six-week course of training as a keypunch operator and has been unsuccessful. As for the job of a telephone operator there is both the unresolved question of her capacity to do it and testimony that such jobs are not available in the national economy for persons who wish to begin at her age. Thus we do not view this case as one that turns upon an inadvertent procedural or technical flaw in the administrative process that reasonably ought to be subject to correction. Instead, it seems to us that we are asked to allow the Secretary to start over again in his determination to deny benefits to Mrs. Taylor.

Nor are we favorably impressed with the Secretary’s argument that another hearing should be allowed because “the Appeals Council and the administrative law judge in coming to their conclusion relied on existing law and administrative procedures.” Our decision today is not new. It has long been settled that the burden of rebutting prima facie disability shifts to the Secretary and that he may sustain that burden only by substantial evidence of alternate employability. Indeed the case law rests firmly upon the language of the statute: “[t]he findings of the Secretary as to any fact, if supported by' substantial evidence, shall be conclusive . ..” § 405(g). Moreover, internal departmental regulations themselves put the hearing examiners and appeals council on- notice that to proceed in a case such as this one without specific evidence of alternate employability, as might be given by a vocational expert, is to invite reversal.

We have recently noted that § 405(g) “authorizes us to reverse the Secretary’s decision ‘with or without remanding the cause for a rehearing.’ ” Breeden v. Weinberger, 493 F.2d 1002, 1011-12 (4th Cir. 1974). The statute itself contemplates remand for additional evidence only “on good cause shown.” § 405(g). We think the Secretary has not shown sufficient good cause to prolong the litigation.

On remand the district court will enter a judgment in Mrs. Taylor’s favor granting her disability benefits from November 29, 1969.

Reversed and remanded.

      . Dr. Antlitz also set out a “work prescription”:
      Stand/Sit: No restriction.
      Walk: 2 to 4 blocks 3 to 4 times a day.
      Lift/Carry: 20 to 25 lbs. 2 to 3 times an hour.
      Push/Pull: 25 to 30 lbs. 2 to 3 times an hour.
      Manipulate fingers and arms: No restriction (left
      side needs physical therapy to strengthen).
      Climb Stairs: 1 to 2 flights 3 to 4 times a day.
      Public Transportation: No restriction.
      The patient would benefit from vocational rehabilitation.

      . A March 17, 1971, entry: “Will arrange appt. [with] Vocational rehab counsellor for job placement”; April 14, 1971: “Will see Vocat Rehab, on 4/20 to see about job. She should be working to have a structured day — I believe this would help her diabetes by keeping her out of the kitchen & refrigerator.”

      . Q. Now, since 1969 have you gone back to work anywhere?
      A. No.
      Q. And why is that?
      A. Because I haven’t been able to work.
      Q. Have you checked with the Vocational Rehabilitation people to see if they could help you?
      A. Yes, I went to Rehabilitation at Sinai for three weeks.
      Q. What did they say?
      A. They sent me down to the Maryland Training Center.
      Q. And what happened?
      A. I’m still going. I haven’t finished the course. The days that they assigned for me to come to school, most of those days I have to be in at the clinic and then I went in the hospital for those eight days and then I came out and being home for two weeks and then back into school again.
      Q. All right. What is Maryland Training Center training you to do?
      A. Key punch.
      Q. How long have you been doing that?
      A. November.
      Q. Since November of ’71? How do you like it?
      A. I don’t.
      Q. Don’t care for it?
      A. No, I don’t.
      Q. Why don’t you like that?
      A. I find it very difficult to do. I just can’t seem to get my fingers to operate the keys, you know.
      Q. How long would the course have normally lasted if you hadn’t been going to the clinic?
      A. They say six weeks, but you can’t do it in six weeks.
      Q. Do you feel like you are going to be able to get back to work, such as a presser? A. No.
      Q. Why?
      A. Definitely not because I tried it before. I can’t stand the fumes, I can’t stand the steam and it hurts me in my chest, causes my eyes to run, it causes me to cough a lot.
      Q. How about work as a custodian?
      A. I wouldn’t be able to do that because of the mopping and with the buffer. It would be too much of a strain for my left side.

        Q. Then you actually don’t feel that the key punch is going to be a successful thing for you to do?
      A. I don’t know. I’m working at it.
      Appendix at 60-61, 63.

      . Q. If you had your choice as to what you’d like to go back to, what would you do?
      A. I’d like to try for PBX operator.
      Q. Will they train you for that?
      A. I don’t know.
      Q. Have you asked them about it?
      A. Yes.
      Q. What did they say?
      A. They didn’t say anything about it. They suggested key punching.
      Q. How about like the telephone company? Have you checked with them to see if they would have anything of that nature for you?
      A. They are only accepting applicants that are from age 18 to 25.
      Appendix at 64.

      . E. g., Reynolds v. Richardson, No. 71-2031, CCH Unemploy. Ins. Rep., Fed. ¶ 16,842 (4th Cir. 1972); Chavies v. Finch, 443 F.2d 356 (9th Cir. 1971).

      . Section 423(d)(2)(A) directs that in determining disability to “engage in any other kind of substantial gainful work,” the Secretary must consider the claimant’s age, education, and work experience.

      . E. g., Hicks v. Gardner, supra.

      . See, e. g., Meneses v. Secretary of H.E.W., supra, 442 F.2d at 807 and cases cited at n. 11. See also Annot. 22 A.L.R.3d 440 (1968) and 1974 Supp.

      . Handbook, Social Security Administration, Bureau of Hearings and Appeals, Part I, § 87 (1967). Section 1-87-10, in pertinent part, provides:
      During the prehearing study of a disability case, including tentative selection of the proposed exhibits, the hearing examiner should determine if vocational testimony appears desirable or even essential in order to reach a proper conclusion. In determining whether a vocational expert should be called, the hearing examiner should be mindful that if the preponderance of the credible evidence of record, including medical, creates a significant doubt that a claimant cannot do his usual work or jobs closely associated therewith, under certain circumstances the burden of proceeding, i. e., going forward with the evidence, shifts to the Department.

      In making this determination, the hearing examiner must consider the following:
      (2) the specific record requirements of local judicial precedents, e. g., the necessity for affirmative vocational evidence for proper adjuciation (§ 1-87-10B), and the sufficiency of vocational evidence in the claim file (§ 1-87-1 OF);
      (emphasis in original).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    The CANAL AUTHORITY OF the STATE OF FLORIDA, et al., Plaintiffs, v. Howard H. CALLAWAY, Secretary of the Army, et al., Defendants-Appellees. The CROSS-FLORIDA CANAL ASSOCIATION, Plaintiff, v. Howard H. CALLAWAY, Secretary of the Army, et al., Defendants. Eleanor H. MILLER et al., Plaintiffs-Appellants, v. Avery S. FULLERTON et al., Defendants-Appellees. J. G. PERKO, Plaintiff-Appellant, v. The CANAL AUTHORITY OF the STATE OF FLORIDA, etc., et al., Defendants-Appellees.
    No. 74-2731.
    United States Court of Appeals, Fifth Circuit.
    May 2, 1975.
    Rehearing Denied June 2, 1975.
    Alan B. Fields, Jr., Palatka, Fla., for Eleanor H. Miller, and others.
    William L. Eagan, Orlando, Fla., for J. G. Perko.
    A. W. Nichols, III, Palatka, Fla., for Eleanor H. Miller.
    Edward Lee Rogers, Gen. Counsel, Environmental Defense Fund, East Setauket, N. Y., for plaintiffs-appellants.
    Stuart B. Schoenburth, Dept, of Justice, Washington, D. C., for Callaway, and others.
    John H. Gullett, Washington, D. C., Willard Ayers, Ocala, Fla., for Canal Authority, etc., and others.
    Ralph E. Elliott, Jr., Allan P. Clark, Jacksonville, Fla., for Canal Authority.
    John L. Briggs, U.S. Atty., John D. Roberts, Asst. U.S. Atty., Jacksonville, Fla., for Howard Callaway.
    William L. Durden, Jacksonville, Fla., for Jacksonville Area Chamber of Commerce.
    David U. Tumin, Asst. Counsel, Daniel U. Livermore, Jr., Jacksonville, Fla., for Jacksonville Port Authority.
    Tracy Danese, Jacksonville, Fla., for Cross-Fla. Canal Association.
    Jacques B. Gelin, Wallace Johnson, Dept, of Justice, Washington, D. C., for all Federal defendants.
    Edmund B. Clark, Dept, of Justice, Washington, D. C., Harry M. Mack, Cincinnati, Ohio, Gary B. Randall, Dept, of Justice, T. Neal Combs, Washington, D. C., William Lee Allen, Asst. Counsel, Harry L. Shorstein, Jacksonville, Fla., Jon T. Brown, Washtington, D. C., for Environmental Defense Fund, and others.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   PER CURIAM:

The judgment is affirmed.

More than a year has passed since final judgment was entered in this case, and in light of statements during oral argument by counsel for the several contesting parties in this protracted litigation that circumstances with respect to the operation of the “Rodman Pool” have changed, we are of the view that although the judgment denying an injunction against lowering the level of the pool should be affirmed, the case should be remanded to the trial court for the continued exercise of its equitable jurisdiction over the matter in question.

Affirmed and remanded.


author: PER CURIAM: GOLDBERG, Circuit Judge with whom BROWN, Chief Judge, joins,

text:
    Luke BONURA, Jr., Plaintiff-Appellee-Cross-Appellant, v. SEA LAND SERVICE, INC., Defendant-Appellant-Cross-Appellee, Atlantic & Gulf Stevedores, Inc., Intervenor.
    No. 74-1012.
    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1975.
    Dissenting Opinion April 4, 1975.
    Ralph E. Smith, New Orleans, La., for defendant-appellant.
    Frank J. D’Amico, New Orleans, La., for plaintiff-appellee.
    Bertrand M. Cass, Jr., New Orleans, La., for Atlantic & Gulf Stevedores.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before GEWIN, AINSWORTH and GEE, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled as to such Petition for Rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. A Judge, however, having requested a poll on the question of remittitur and the Court having been polled because of such request and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) a rehearing of such issue en banc was denied.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

GOLDBERG, Circuit Judge with whom BROWN, Chief Judge, joins,

dissenting:

I must respectfully dissent from the decision of my brethren not to hear this case en banc. I believe that the standard adopted here for appellate review of trial court remittiturs significantly endangers the effectiveness of the standard which is supposed to guide entry of the award.

I.

The Bonura opinion reads, in relevant part:

“[Djeference will be given to the trial court’s determination since he, and not the appellate court, was present during the ebb and flow of the trial, and it will be presumed that the amount which he has chosen is the amount which will reduce the jury’s verdict to the “maximum possible” award unless the party opposed to the remittitur can point to credible evidence which would support a greater recovery.”

505 F.2d 665 at 670 (emphasis added).

As is clear, the standard enunciated above places the burden on the plaintiff who believes that the remittitur was too great to challenge it and to marshall the evidence in support of that challenge.

The displacement of a jury verdict rests on tenuous constitutional grounds. As the Supreme Court has recognized in Dimick v. Schiedt, 1935, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, the only reason to tolerate the remittitur at all under the Seventh Amendment rests on historical practice, and is even contrary to the better reasoned historical cases, The Supreme Court said:

In the last analysis, the sole support for the decisions of this court and that of Mr. Justice Story, so far as they are pertinent to cases like that now in hand, must rest upon the practice of some of the English judges — a practice which has been condemned as opposed to the principles of the common law by every reasoned English decision, both before and after the adoption of the Federal Constitution, which we have been able to find.
In the light reflected by the foregoing review of the English decisions and commentators, it therefore may be that if the question of remittitur were now before us for the first time, it would be decided otherwise.

293 U.S. at 484, 55 S.Ct. at 300, 79 L.Ed. at 610. See 3 Barron & Holtzoff, Federal Practice & Procedure (Wright ed.) § 1305.1, p. 376.

The Court went on to say that because remittitur had been allowed into judicial practice it was permissible for a trial judge to remit damages when he is “merely lopping off an excrescence”. 293 U.S. at 486, 55 S.Ct. 296, 79 L.Ed. at 611.

Mirroring this concern with the diminution of jury verdicts, this Court adopted a “maximum which the jury could reasonably find” standard for determining the proper amount of a remittitur. Gorsalitz v. Olin Mathieson Chemical Corp., 5 Cir. 1970, 429 F.2d 1033. This Court has since followed this standard in cases in which there has been an appeal on the remittitur issue. See Elston v. Shell Oil Co., 5 Cir. 1973, 481 F.2d 608; Stewart v. Atlantic Pipeline Co., 5 Cir. 1972, 470 F.2d 738, reh. denied, 474 F.2d 695, mandate substituted, 479 F.2d 311; Jenkins v. Aquatic Contractors and Engineers, 5 Cir. 1971, 446 F.2d 520; United States v. 1160.96 Acres of Land, Holmes County, Miss., 5 Cir. 1970, 432 F.2d 910.

The actual jury verdict is not necessarily a referent for the judge in determining the “maximum reasonable award”. But Dimick and Gorsalitz indicate that the trial judge must be careful to give the highest award that the jury could have found. This is not a discretionary standard. The fact that the trial judge may have validly determined that the actual award was too large should not exonerate him from explaining why the particular award he sets is the maximum reasonable amount. Instead, Bonura says that we are to presume that this amount is the maximum: we are presented with a finding without findings of fact, a legal conclusion without points of law. Without an articulated opinion upon which the appellate court can pass judgment, the “maximum reasonable award” standard becomes merely advisory. Cf. Federal Rules of Civil Procedure 52(a).

In order to challenge the award, under Bonura, an appellant must present “credible evidence” that the award is too low. Yet Bonura offers no explanation as to why it becomes the appellant’s duty to make a de novo challenge to a judicial determination rather than the judge’s job to explain how his resolution of the case conforms to the law. The shift of burden will have a very damaging effect in practice, for the basis for determination of awards is often difficult to explicate. In Glazer v. Glazer, E.D.La.1968, 278 F.Supp. 476, cited in both the Gorsalitz and Holmes County opinions, Judge Rubin noted:

[I]n many instances the damages are to be measured in whole or in part by the jury’s discretion. This is the situation where recovery is sought for a personal tort, where punitive damages are allowed, or where as here the amount of damages depends in part on what is a reasonable term for a contract. In such cases, the fixing of damages is an integral part of the jury’s function.

278 F.Supp. at 481.

The Seventh Amendment tells us that it is up to the jury to determine the facts, and in keeping with this Dimick informs us that we can only lope off “an excrescence”. I believe that we must be constitutionally zealous to insure that the trial judge does as much as he can within the law to conform an award to a jury’s view of the facts — hence the maximum reasonable award standard.

I would have the district court judge bear the burden of substantiating his estimation of damages by making findings of fact and explicating the theory or rationale for the damages. His factual evaluation would, of course, be entitled to some presumption in its favor. But there would be some explicit foundation for the trial judge’s action, allowing a basis for appellate review in this constitutionally sensitive area.

II.

The doctrine of remittitur rests on a constitutional base of clay. At some point the doctrine’s reach must stop lest it undermine the constitutional right to a jury determination of the facts. We are now casting on the plaintiff-appellant the burden of showing that a rational jury could have given something closer to what the actual jury gave than what the judge, with all the logic of unexplained intuition, believes it could have given. I need no crystal ball to forecast wholesale denigration of the maximum reasonable award standard and substitution of inexplicable awards as this case becomes the law of the Circuit.

I had conceived of jury verdicts having a degree of inviolateness which is rarely traduced, and this, I thought, was the basis for the limiting standard we adopted for those times when we must violate the jury’s will. But the Court today choreographs some two step process, backing one more step from the jury. Now, once the judge is allowed onto the floor he may dance with no choreographic design or articulated steps.

All of this gives the defendant another day in the judge’s mind, not another day in court. The net effect of this opinion will be a tremendous latitudinal and longitudinal extension of the judge’s power over the facts; he may pick an award without a word or phrase indicating his reasons for doing so. I think that a judge-made award must have a basis which an appellate court can understand and not merely guess at. I am sorry that my brethren think otherwise.


text:
    William G. BRINKS, Petitioner-Appellant, v. STATE OF GEORGIA, Respondent-Appellee.
    No. 74-4238
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 30, 1975.
    William G. Brinks, pro se.
    Arthur K. Bolton, Atty. Gen., John B. Ballard, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.

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

   PER CURIAM:

Petitioner raises a number of points in this 28 U.S.C. § 2254 action. Unfortunately, as the district court noted, petitioner has failed to exhaust his state remedies with respect to two of these purported errors, the question of whether the state trial court properly allowed the indictment to go to the jury room without proper instructions, and the question of whether the trial judge’s failure to sequester the jury violated petitioner’s right to due process. Since that is the case, we remand this case to the district court with instructions that it dismiss the petition without prejudice in order to enable petitioner to seek relief in the Georgia courts. See Harris v. Estelle, 5 Cir. 1974, 487 F.2d 1293; Hargrett v. Wainwright, 5 Cir. 1973, 474 F.2d 987.

Vacated and remanded.


text:
    Edward R. FINK and Joan O. Fink, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 74-1222.
    United States Court of Appeals, Ninth Circuit.
    March 25, 1975.
    Edward R. Fink, in pro. per.
    Scott O. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C.; Meade Whitaker, Chief Counsel IRS, for respondent.

       The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation.

   OPINION

Before DUNIWAY and KILKENNY, Circuit Judges, and SOLOMON, District Judge.

PER CURIAM:

The judgment is affirmed for the reasons stated in the opinion of the United States Tax Court. Edward R. Fink, 1973, 60 T.C. 867.


text:
    Jerome H. HETTLEMAN et al., Appellees, v. ENGELHARD MINERALS AND CHEMICALS CORPORATION, a Delaware Corporation, Appellant.
    No. 74-1813.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1975.
    Decided April 2, 1975.
    Melvin D. Kraft, New York City, P.C. (David L. Bowers and Benjamin C. Howard, Baltimore, Md., on brief) for appellant.
    Stephen H. Sachs, Baltimore, Md. (John J. Kenny, Baltimore, Md., on brief) for appellees.
    Before FIELD and WIDENER, Circuit Judges, and HALL, District Judge.
   PER CURIAM:

This action for damages for the alleged breach of a covenant to repair leasehold premises was tried to the court which rendered judgment in favor of the plaintiffs. Upon consideration of the record, briefs and oral arguments, we are persuaded that the district court correctly applied the principles of Maryland law and that its factual findings were not clearly erroneous. Rule 52(a), Fed.R. v o

Affirmed.


text:
    SOUTHEAST CONTRACTORS, INC., Petitioner, v. John T. DUNLOP, Secretary of Labor, Respondent.
    No. 74-2698.
    United States Court of Appeals, Fifth Circuit.
    March 19, 1975.
    Thomas R. Elliott, Jr., Birmingham, Ala., for petitioner.
    William S. McLaughlin, Executive Secretary, Occupational Safety & Review Commission, Washington, D. C., Norman K. Winston, Association Regional Sol., U. S. Dept, of Labor, Birmingham, Ala., Baruch A. Fellner, Counsel for Regional Litigation, U. S. Dept, of Labor, Washington, D. C., Paul A. Brady, Occupational Safety & Review Commission, Atlanta, Ga., Stephen F. Eilperin, Karen K. Siegel, Dept, of Justice, Washington, D. C., for respondent.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

It is unnecessary that we decide the constitutionality of the Occupational Safety and Health Act of 1970 and its enforcement procedures established by sections 5, 6, 8, 9, 10, 11, 12, and 17, which matter is also pending and under submission before another panel of this Court in Atlas Roofing Company, Inc. v. Secretary of Labor, No. 73 — 2249. We are in agreement with the well-reasoned dissent of Chairman Moran of the Occupational Safety and Health Review Commission in this matter, and especially with that portion pertaining to the general rule that a contractor is not responsible for the acts of his subcontractors or their employees; accordingly, that the tractor driver was not an employee of respondent. Therefore, respondent was not using the motor vehicle involved in this case at the time of the accident within the meaning of 29 C.F.R. § 1926.-601(b)(4), and the majority ruling of the Commission is erroneous.

Reversed.


author: MILLER, Judge.

text:
    Application of Frederick C. ARMBRUSTER.
    Patent Appeal No. 75-514.
    United States Court of Customs and Patent Appeals.
    March 27, 1975.
    Keith V. Rockey, Chicago, 111., Albert P. Halluin, attys. of record, for appellant. Prank E. Robbins, CPC International Inc., Englewood, Cliffs, New Jersey, of counsel.
    Joseph F. Nakamura, Washington, D. C. , for the Commissioner of Patents, Gerald H. Bjorge, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Associate Judges.
   MILLER, Judge.

This appeal is from a decision of the Patent and Trademark Office Board of Appeals, affirming the rejection of claims 45-51 and 53-55 under 35 U.S.C. § 112, first paragraph, in application serial No. 327,335, filed January 29, 1973, for reissue of patent No. 3,560,343, issued February 2, 1971, for “Low D.E. ■ Starch Conversion Products.” Claims 1-9 and 32-44 have been allowed, and claim 52 has been indicated allowable if rewritten in independent form. We reverse.

THE INVENTION

Sugars, such as dextrose, may be obtained from starches by breaking up large starch molecules through acid and/or enzymatic hydrolysis. Products of such hydrolysis are known as hydrolysates. The extent of hydrolysis is measured by the parameter D.E. — dextrose equivalent, calculated as dextrose and based on the total dry substance. A low D. E. value means little hydrolysis (breakup) has occurred. Appellant’s invention involves a particular process for producing a low D.E. starch hydrolysate in the range of about 10 to about 25; the contested step under 35 U.S.C. § 112 involves initial acid hydrolysis of the starch “to a D.E. less than about 15.” Claim 45 is illustrative (emphasis supplied):

A process for producing a haze-free low D.E. starch hydrolysate which comprises:
1) treating a starch-water slurry with an acid above the gelatinization temperature of the starch to solubilize and hydrolyze the starch to a D.E. less than about 15,
2) treating the acid hydrolyzed starch with bacterial alpha-amylase to increase the D.E. by at least about 5 and to obtain a starch hydrolysate product having a D.E. in the range of from about 10 to about 25,
3) stopping the conversion action of the bacterial alpha-amylase, and
4) recovering the hydrolysate so produced.

“Haze-free” refers to the absence of high molecular weight starch fragments which have reassociated to form large, relatively insoluble aggregates adversely affecting optical clarity.

OPINION

The only issue presented for review is whether appellant’s specification satisfies the how to make requirement of 35 U.S.C. § 112, first paragraph, with regard to the claimed limitation that the D.E. after the initial acid hydrolysis is “less than about 15.” Stated otherwise, is the scope of enablement provided one of ordinary skill in the art by the disclosure commensurate with the scope of protection sought by the claims? In re Geerdes, 491 F.2d 1260 (Cust. & Pat.App.1974); In re Cescon, 474 F.2d 1331 (Cust. & Pat.App.1973); In re Moore, 439 F.2d 1232, 58 CCPA 1042 (1971). Although appellant’s specification describes the invention as broadly as it is claimed, xnereby eliminating any issue concerning the description requirement, a specification which “describes” does not necessarily also “enable” one skilled in the art to make or use the claimed invention. See In re Mayhew, 481 F.2d 1373 (Cust. & Pat.App.1973). However, this court has made it clear that the Patent and Trademark Office must substantiate its rejection for lack of enablement with reasons. Worth repeating is the following statement from In re Marzocchi, 439 F.2d 220, 58 CCPA 1069 (1971):

The only relevant concern of the Patent Office under these circumstances should be over the truth of any such assertion. The first paragraph of § 112 requires nothing more than objective enablement. How such a teaching is set forth, either by the use of illustrative examples or by broad terminology, is of no importance.
As a matter of Patent Office practice, then, a specification disclosure which contains a teaching of the manner and process of making and using the invention in terms which correspond in scope to those used in describing and defining the subject matter sought to be patented must be taken as in compliance with the enabling requirement of the first paragraph of § 112 unless there is reason to doubt the objective truth of the statements contained therein which must be relied on for enabling support. Assuming that sufficient reason for such doubt does exist, a rejection for failure to teach how to make and/or use will be proper on that basis; such a rejection can be overcome by suitable proofs indicating that the teaching contained in the specification is truly enabling.
it is incumbent upon the Patent Office, whenever a rejection on this basis is made, to explain why it doubts the truth or accuracy of any statement in a supporting disclosure and to back up assertions of its own with acceptable evidence or reasoning which is inconsistent with the contested statement. Otherwise, there would be no need for the applicant to go to the trouble and expense of supporting his presumptively accurate disclosure. [Emphasis in original and footnote deleted.]

Accord, In re Dinh-Nguyen, 492 F.2d 856 (Cust. & Pat.App.1974); In re Bowen, 492 F.2d 859 (Cust. & Pat.App.1974).

Section 112 does not require that a specification convince persons skilled in the art that the assertions therein are correct. In re Robins, 429 F.2d 452, 57 CCPA 1321 (1970).

The following precedents are analogous to the present case and demonstrate the error in the position of the board. In re Anderson, 471 F.2d 1237 (Cust. & Pat.App.1973), involved claims to a surgical dressing comprising a laminated dressing of a primary layer, which is readily soluble in plasma, and a secondary layer in face-adhering contact with the primary layer also soluble in plasma, but to a lesser extent. In response to the Patent Office’s assertion that the major part of the specification was directed to a laminate in which the primary layer was hemostatic, the court said:

It is quite true that the major part of appellant’s specification is a disclosure of a primary layer having hemostatic properties^] but in determining what is disclosed we cannot restrict our consideration to the major part of the disclosure. Appellant is clearly entitled to have the whole of his disclosure considered. We have already adverted to the abstract and to original claim 1, both of which make clear that appellant did not regard his invention as limited to a hemostatic primary layer. His broad disclosures do not refer to the hemostatic property at all. [Emphasis supplied.]

The solicitor requests that we “rethink” Anderson with regard to the use of the abstract as part of the specification in dealing with rejections under 35 U.S.C. § 112, citing Rule 72(b), 37 CFR 1.72(b). However, Rule 72(b) states that the purpose of the abstract is to enable the “Patent Office and the public generally to determine quickly from a cursory inspection the nature and gist of the technical disclosure [emphasis supplied].” While the rule indicates that the abstract should not be used for interpreting the scope of claims, nowhere does the rule state that the abstract is not part of the specification. Furthermore, we can see no distinction for purposes of 35 U.S.C. § 112 between the abstract and the claims as originally filed, which have always been considered part of the original disclosure. Accordingly, we adhere to our position in Anderson, supra, that the abstract is embraced by the word “specification” for the purposes of a rejection under 35 U.S.C. § 112, first paragraph.

In re Coleman, 472 F.2d 1062 (Cust. & Pat.App.1973) involved a flexible conduit comprising a suitable elastic adhesive material between the metal hose and a plastic jacket. The sole issue was enablement with respect to the nature of the adhesive material, described in the claims by certain properties. The specification provided a generic disclosure couched in terms of the properties recited in the claims and a more specific disclosure of the preferred adhesive materials described by reference to trademark and trade name designations. In reversing the Patent Office the court stated:

In reviewing the rejection before us, we have appropriately looked to the disclosure in its entirety and have arrived at a conclusion which is necessarily to some extent subjective. . we find ourselves confronted with no adequate justification for denying appellant patent protection of the scope sought.
The board’s opinion focuses too narrowly on the listing of specific materials by trademark or trade name. We stress the need to inject the totality of the disclosure into the examination for sufficiency under § 112 of this specification. [Emphasis supplied.]

In re Mayhew, supra, involved an apparatus for continuous-strip molten metal coating operations wherein a preheated continuous strip of metal is passed through a bath of molten metal. The claims recited a cooling means within the bath, and the Patent Office rejected the claims for lack of enablement in not specifying that the cooling means had to be adjacent the exit side of the bath. The specification broadly indicated that a cooling means was located in the bath; the specification did not state specifically that the cooling means could be located anywhere, and no specific embodiments described the location of the cooling means other than adjacent the exit side of the bath. In reversing the Patent Office, the court found that there was nothing in the specification to indicate that the cooling had to be adjacent the exit side of the bath; that the description in the specification of the cooling means at the exit side of the bath was merely a preferred embodiment; and that the Patent Office failed to substantiate its rejection with evidence or reasoning that location of the cooling means at a point other than the exit side of the bath would not achieve the desired result.

The examiner in this case expressed doubt concerning the operability of the claimed process having an initial acid hydrolysis step to a D.E. less than 5. The justification for this doubt was his assertion that appellant’s specification teaches that a D.E. of at least 5 is essential to operability.

The abstract of the specification indicates that the starch in the acid hydrolysis step “is treated with acid to a D.E. less than 15,” which would merely inform one skilled in the art that anything less than 15 would be operable. In re Anderson, supra; In re Mayhew, supra. In example I, starch slurries were acid hydrolyzed to a “maximum of 15 D.E.” Although the particular slurries had a D.E. of 10.3, 12.9, and 15.2, there is no indication that values less than 5 would not be operable. Also, examples II, III, and IV show “a D.E. of about 6.5,” “of about 8,” and “of 5,” respectively.

After the abstract, the specification twice states that the hydrolysate after the initial hydrolysis has “a D.E. between about 5 and about 15 [emphasis supplied].” There is no implication that a D.E. of at least 5 is essential to operability of the invention. Immediately following is a discussion of the “preferred method,” wherein the starch is acid hydrolyzed to “a D.E. between 5 and 15.” Again, there is no implication of essentiality in a D.E. of at least 5. In the continuing discussion of the preferred method, the specification states that the acid hydrolysis “is continued to a D.E. of at least 5 and less than 16 [sic ? 15].” The term “at least” is heavily relied upon by the examiner and the board; however, it occurs within the overall context of “preferred method” and does not, therefore, imply that operability is inexorably tied to a value of 5 or more.

We conclude that there is nothing in the specification which justifies the doubts of the examiner or the board over the sufficiency of the specification to enable one skilled in the art to make a low D.E. hydrolysate starting from a starch slurry hydrolyzed to a D.E. less than 5.

Appellant’s evidence includes his affidavit reciting certain experiments and comparative results involving D.E. values of above and below 5. Such an affidavit can be considered in demonstrating objective enablement as part of the “suitable proofs” discussed in In re Marzocchi, supra. The solicitor attacks the use of this affidavit as an ex post facto consideration, citing In re Kirk, 376 F.2d 936, 54 CCPA 1119 (1967) and In re Gardner, 427 F.2d 786, 57 CCPA 1207 (1970). However, those cases involved attempts to add information to the specification; here, the affidavit is being employed only to demonstrate that the teaching in the specification is truly enabling. The affidavit shows very good results at a D.E. of 1.4, with equivalent results at D.E.’s of 3.2, 3.5, 4.9, and 6.7. It plainly demonstrates that the lower limit of 5 is not critical and that initial acid hydrolysis to a D.E. below 5 is operable according to the teachings of the specification.

In view of the foregoing, we hold that appellant’s specification satisfies the how to make requirement of 35 U.S.C. § 112, first paragraph.

Accordingly, the decision of the board is reversed.

Reversed.

      . The Patent and Trademark Office concedes enablement of 5 to 15 and only attacks less than 5.

      . The solicitor repeatedly raises what is tantamount to a new ground of rejection with respect to whether appellant’s specification enables one skilled in the art to produce a hydrolysate which is “haze-free.” “The practice of raising such matters at this stage of the prosecution is unfair to the other party, adds to the burden of the court, and serves to obscure the raising party’s position on the issues that actually were raised below.” In re Alul, 468 F.2d 939 (Cust. & Pat.App.1972). Similarly, the solicitor attempts to apply a new rationale to support the rejection based upon a patent of record which was not relied on below. This cannot be condoned. In re Corth, 478 F.2d 1248 (Cust. & Pat.App.1973). New grounds of rejection, if valid, may be applied in further proceedings before the Patent and Trademark Office referred to in 35 U.S.C. § 144. Finally, the solicitor refers to certain statements in the prosecution of the original patent, which were only made in connection with the examiner’s rejection for impermissible recapture under 35 U.S.C. § 251. Besides considering this to be new argument, we agree with the board, which reversed the examiner’s rejection under 35 U.S.C. § 251, that
      the deletion of the broader range from the claims of the patent was made at the insistence of the Patent [0]ffice. The rejections of original claim 24 [having no lower limit] were on grounds of undue multiplicity, 35 U.S.C. § 112, and on obviousness, 35 U.S.C. § 103, over art which apparently had nothing to do with the insertion of the lower limit of 5. There is nothing inconsistent in this prosecution with the appellant’s position that there was error without deceptive intention.

      . In response to a question at oral hearing whether that statement involved the preferred method, the solicitor asked what was the other preferred method. Assuming there is another preferred method rather than a mere variation of the preferred method, the word “preferred” speaks for itself.


author: PER CURIAM.

text:
    Major LEWIS, Petitioner, v. Earl L. BUTZ, Secretary of Agriculture and the United States of America, Respondents.
    No. 74-1812.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1975.
    Decided March 19, 1975.
    Hartje & Hartje, Conway, Ark., for petitioner.
    Carla Hills, Asst. Atty. Gen., New York City, and Leonard Schaitman and Frederic D. Cohen, Attys., Civ. Div., Dept, of Justice, Washington, D. C., for respondents.
    Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

Major Lewis, who operates Major Lewis Livestock Auction Sales in Conway, Arkansas, petitions this Court under 7 U.S.C. § 194(a) for review of a decision and order of the Judicial Officer of the United States Department of Agriculture. The Judicial Officer adopted as his own an initial decision and order written by an administrative law judge who had held a hearing on the matter. The administrative law judge found that Lewis had violated section 312(a) of the Packers and Stockyards Act, 7 U.S.C. § 213(a) and section 201.43(b) of the regulations promulgated under the Act, 9 C.F.R. § 201.43(b) (1974), by refusing to honor a check drawn on his bank account to pay for cattle purchased on his behalf by an agent. Lewis was ordered to cease and desist from such violations and was suspended as a registrant under the Act for 14 days.

Lewis and Henry DeJong entered into an oral joint venture agreement to buy and sell livestock in commerce around April 1, 1972. Lewis was to supply the necessary money while DeJong was to supply his services in picking out and purchasing livestock to be shipped to Lewis in Conway for resale. Lewis gave DeJong a checkbook and the authority to write checks on Lewis’ account. .

DeJong went to Iowa and purchased a number of cattle and hogs during the next few weeks, paying for them with checks drawn on Lewis’ account. He generally signed these checks with both his and Lewis’ name. When the checks arrived at the bank in Conway that institution would phone Lewis who approved payment.

Between April 13 and May 8, 1972, DeJong purchased 96 head of mixed cattle for the joint venture and had them shipped to the Mahaska Sales Company barn in Oskaloosa, Iowa, for assembly and shipment to Lewis in Conway. The Mahaska Sales Company was managed by Dennis E. Bandstra. On May 6, 1972, 36 of these cattle were sold in Iowa and the sales price remitted to Lewis.

On May 13, 1972, Lewis’ truck arrived at Mahaska Sales to load the rest of the cattle. That same day DeJong bought 20 additional head of cattle from Bandstra and paid for them with a check for $5000.00 drawn on Lewis’ bank account. DeJong signed the check simply “Major Lewis.” Bandstra was told by DeJong that he had authority to issue checks on Lewis’ account, and Bandstra also knew that other cattle dealers in the area had sold animals to DeJong, had been paid in a similar manner and had experienced no difficulty with the checks. Lewis’ truck loaded 58 head of cattle, all it could hold, including the 20 head purchased that day from Bandstra. Lewis received these specific cattle.

Some four to six weeks later Bandstra presented the $5000.00 check for payment through regular banking channels. It was returned unpaid because the signature was irregular. Subsequently, on the advice of DeJong, Bandstra tried again to cash the check and once again Lewis’ bank refused to honor it. In both cases the bank phoned Lewis and both times Lewis refused to authorize payment. When Bandstra finally telephoned Lewis directly with his problem Lewis told him he would not honor the check until he was satisfied that he had received all his livestock from Iowa. Bandstra has never received the $5000.00 for his cattle.

Lewis was concerned because 22 of the cattle purchased by DeJong were not accounted for. However, the evidence indicated that nine had died and that “some” of the remaining 13 had also died, while the remainder had been taken over by Bandstra to pay the feed bill on all the animals which had been assembled at the Mahaska barn by De-Jong.

The administrative law judge found that DeJong was acting as Lewis’ agent when he purchased the 20 head from Bandstra, that Lewis had received those same 20 head and that his refusal to pay for them constituted an “unfair” and “deceptive” practice under section 312(a) of the Act and violated section 201.43(b) of the regulations.

In Glover Livestock Commission Co. v. Hardin, 454 F.2d 109, 110-111 (8th Cir. 1972), rev’d on other grounds, 411 U.S. 182, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973), this Court set out the scope of review in cases such as this in the following language:

The scope of our review is limited to the correction of errors of law and to an examination of the sufficiency of the evidence supporting the factual conclusions. The findings and order of the Judicial Officer must be sustained if not contrary to law and if supported by substantial evidence. Also, this Court may not substitute its judgment for that of the Judicial Officer’s as to which of the various inferences may be drawn from the evidence.

See also Fairbank v. Hardin, 429 F.2d 264, 266-267 (9th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 244, 27 L.Ed.2d 247 (1970); Capitol Packing Co. v. United States, 350 F.2d 67, 72 (10th Cir. 1965); Administrative Procedures Act, 5 U.S.C. § 706(2).

Utilizing this standard we have reviewed the administrative record and are satisfied that the law was correctly applied and that there is substantial evidence to support the findings of fact.

While there was conflicting evidence as to whether DeJong was still Lewis’ joint venturer at the time of the purchase from Bandstra, this Court may not substitute its judgment for that of the Judicial Officer in resolving this conflict. And whether a joint venture is in existence is a question of fact to be determined by the trier of fact. Kelley Investment Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 386 F.2d 595, 598 (8th Cir. 1967). Here there was substantial evidence to support the finding of a joint venture at the time of the purchase from Bandstra because DeJong testified that his working agreement with Lewis had not terminated until more than a month after the 20 head had been bought and Lewis’ own records showed that his bank had honored checks drawn by DeJong for the purchase of cattle after April 19, 1972, the date Lewis claims he ended the joint venture. Additionally, there is evidence that Lewis knew that DeJong had purchased the 20 head on his behalf; and it is undisputed that Lewis did, in fact, receive those specific cattle in a shipment brought to Conway in a truck he had dispatched to pick up livestock at the Mahaska barn.

Lewis’ claim that he properly refused to honor the Bandstra check because he received fewer cattle from Iowa than DeJong had purchased in toto and because he has never received a complete accounting from Bandstra is without merit. There is no evidence that any overall shortage is attributable to Bandstra. And, regardless of any question regarding the feed bill and the appropriated cattle, the issue here is whether De-Jong was acting as Lewis’ agent in purchasing the 20 head from Bandstra and whether those cattle were delivered to Lewis. The fact that there may have been an overall shortage between Lewis and DeJong would not justify a refusal to pay Bandstra for the cattle he sold to Lewis.

The decision and order of the Judicial Officer is affirmed.

      . 7 U.S.C. § 213(a) provides:
      It shall be unlawful for any stockyard owner, market agency, or dealer to engage in or use any unfair, unjustly discriminatory, or deceptive practice or device in connection with determining whether persons should be authorized to operate at the stockyards, or with receiving, marketing, buying, or selling on a commission basis or otherwise, feeding, watering, holding, delivery, shipment, weighing, or handling, in commerce, of livestock.

      . 9 C.F.R. § 201.43(b) (1974) provides in pertinent part:
      Each packer, market agency, or dealer purchasing livestock shall, before the close of the next business day following the purchase of livestock and the determination of the amount of the purchase price, transmit or deliver to the seller or his duly authorized agent the full amount of the purchase price, unless otherwise expressly agreed between the parties before the purchase of the livestock.


author: HEANEY, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIKE O’CONNOR CHEVROLET-BUICK-GMC CO., INC. and Pat O’Connor Chevrolet-Buick-GMC Co., Inc., Respondents.
    No. 74-1645.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 13, 1975.
    Decided March 18, 1975.

      Charles A. Shaw, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
    Charles Kelso, Atlanta, Ga., for respondents.
    Before HEANEY, Circuit Judge, and WANGELIN and NANGLE, District Judges.

       H. KENNETH WANGELIN and JOHN F. NANGLE, District Judges, Eastern District of Missouri, sitting by designation.

   HEANEY, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order requiring Mike O’Connor Chevrolet-Buick-GMC Company, Inc., and Pat O’Connor Chevrolet-Buick-GMC Company, Inc., to bargain with the General Drivers, Ware-housemen and Helpers Local No. 534, to post appropriate notices with respect to a § 8(a)(1) violation of the National Labor Relations Act, 29 U.S.C. § 151 et seq., and to make whole employees who may have suffered monetary losses by reason of unilateral changes made by the Employer in the terms and conditions of employment after the Union was certified by the Board as the bargaining agent of the employees.

THE BARGAINING ORDER

Whether the bargaining order should be enforced depends on whether the Board correctly decided that a challenge to the vote of a single employee, Dave Martin, should be sustained on the grounds that he was a managerial employee. If so, the Union is entitled to certification. If not, the ballot of Dave Martin and another employee, William Glenn, must be opened and counted before a decision as to certification can be made.

The facts leading to the challenge of Martin’s vote can be simply stated. The Board scheduled a pre-election hearing for February 21, 1973, in response to the Union’s petition for certification. Before the hearing was formally convened, the Union and the Employer, in the presence of the Hearing Officer, discussed and agreed upon an appropriate unit and a list of eligible voters. The Union concedes that the parties specifically discussed Martin’s status and agreed that he would be eligible to vote as the new and used truck salesman. Thereafter, a stipulation as to the unit was prepared and signed by the parties and approved, in writing, by the Board representative. It defined the unit as follows:

All new and used automobile and truck salesmen including finance and insurance salesmen and appraiser-salesmen of the Mike O’Connor Chevrolet-Buick-GMC Co., of Sedalia, Missouri, but excluding office clerical employees, corporate officers, new car • sales manager, used car sales manager, professional employees, guards and supervisors as defined in the Act and all other employees. [Emphasis added.]

The Regional Director approved the stipulation the next day, February 22, 1973.

On the day of the election, the Union challenged the vote of Martin on the grounds that he was a supervisor, and the vote of -William Glenn, on the grounds that he was not an employee on the eligibility date agreed to by the parties. The Board challenged the ballot of Norman Capps, whose name was not on the typed voter eligibility list. As the challenged ballots were sufficient to affect the outcome of the election, a hearing was held before an administrative law judge. He found that Capps had been discharged for cause and was ineligible to vote, that Martin had managerial responsibilities sufficient to classify him as a supervisor within the meaning of the Act and was, therefore, ineligible to vote, and that the challenge to Glenn need not be considered because, without the votes of Capps and Martin, the Union won the election by a vote of eight to six. He recommended that the Board certify the Union as the collective bargaining representative of the employees. The Board adopted his recommendation.

The Employer contended before the administrative law judge and the Board that Martin’s ballot should have been counted because of the agreement between the Union and the Employer which had been formalized into a stipulation for certification upon consent .election. Neither the administrative law judge nor the Board considered this contention in their opinions. On appeal, however, the Board argues that a written and signed agreement constitutes a valid waiver only if it

* * * [1] expressly provides that issues of eligibility resolved therein shall be final and binding upon the parties * * * and * * * [2] is, in part or in whole, [not] contrary to the Act or established Board policy.

Norris-Thermador Corp., 119 N.L.R.B. 1301, 1302, 41 L.R.R.M. 1283 (1958) (Emphasis included.).

The Board contends that it is apparent from the face of the agreement that the agreement does not include a final and binding provision and is expressly contrary to settled Board and congressional policy in that it includes managerial employees in an employee bargaining unit.

The Board correctly cites NorrisThermador Corp., supra, but it neglects to point out that it subsequently postulated a narrow exception to the first requirement of that case — the exception being that when the parties orally agree, in the presence of a Board agent, that a particular employee is to be included or excluded from a bargaining unit, no express written provision that the oral agreement shall be final or binding is required. See Banner Bedding, Inc., 214 N.L.R.B. No. 139, 87 L.R.R.M. 1417 (1974). The exception makes sense and is appropriate here. The reasons given by the Board in Banner Bedding are persuasive:

* * * The obvious purpose of the [Norris-Thermador] requirement of an
express writing * * * is to prevent the possibility of any party’s obfuscating Board election procedures by pressing for litigation of eligibility claims based on alleged oral agreements, since occasions of discord or delay arise if there is any difference of opinion regarding the actual understanding reached by oral agreement. * * *

Id. at 1417-1418. Cf., N.L.R.B. v. Hood Corporation, 346 F.2d 1020 (9th Cir. 1965); Shoreline Enterprises of America, Inc. v. N.L.R.B., 262 F.2d 933, 943 (5th Cir. 1959).

The more difficult question to decide is whether the stipulation can be permitted to stand or whether it is contrary to the Act or established Board policy. We think it can be given effect. The stipulation is not contrary to the Act, since the managerial-employee exclusion is a creature of the Board. See North Arkansas Electric Coop., 185 N.L. R.B. No. 83, 75 L.R.R.M. 1068 (1970).

Nor is the stipulation contrary to established Board policy. The Board decides whether an employee is a manager on a case-by-case basis. The test is whether an employee’s interests are more clearly allied with unit employees than with management. Martin spent most of his time selling new and used trucks. See G. K. Chevrolet, Inc., 176 N.L.R.B. 416, 71 L.R.R.M. 1255 (1969). He had some discretion in the performance of his job, but he was required to exercise that discretion in accordance with his employer’s established policies. He exercised supervisory authority only on rare occasions. See Dundee Cement Co., 170 N.L.R.B. 661, 67 L.R.R.M. 1409 (1968). He had nothing to do with employee relation matters. His total pay and benefits, while computed on a basis different than other unit employees, was substantially the same as other unit employees. Under these facts, the parties did not violate established policy in agreeing that Martin’s interests were more closely allied with unit employees than with management.

This is not to say that we would not have sustained the Board’s decision absent the agreement. It is only to say that the agreement will not be set aside here because the agreement was a reasonable one entered into in good faith.

In our view, if an agreement to include an employee in the appropriate unit is made by representatives of a union and an employer in the good faith belief that the employee is eligible for inclusion under current Board policy and is made in the presence of a Board representative, the Board is obligated to give effect to that agreement if the agreement is a reasonable one. Here, the agreement to consider Martin as an employee having a community interest with other employees — rather than management — was made in good faith in the presence of a Board agent. The parties discussed the duties of each employee, including those of Martin, and agreed on the status of each employee. There is nothing in the record indicating that either party considered Martin to be a manager at the time the pre-election conference was held, or that there was any bad faith in the agreement. Finally, as we have pointed out, their conclusion that Martin was more closely allied to labor than management was reasonable.

THE § 8(a)(1) VIOLATION

We do not believe that substantial evidence on the record as a whole supports the Board’s finding that a § 8(a)(1) violation occurred when a non-supervisory employee, Pike Farris, told a fellow worker, Greg Buford, in the presence of a supervisor, George Riley:

* * * [I]f there was a chance that the union got in Van Chevrolet was going to buy the company * * * from Mr. O’Connor, fire all the employees and do away with the union.

There is no showing that the owner or Riley authorized, encouraged or ratified the statement, nor is there evidence that the failure to disavow the statement was part of a pattern of coercive conduct. The most that can be said is that Riley failed to disavow the single coercive statement made in his presence. This failure is insufficient to constitute a violation of the Act in the light of its isolated nature and in the light of other conversations held between Riley and Buford, none of which involved improper statements by Riley.

The cases cited by the Board in support of its position are inapposite. In three of the cases, the coercive statements were made by supervisory employees; and in the fourth case, E. B. Law & Son, 92 N.L.R.B. 826, 27 L.R.R.M. 1168 (1950), enf’d, 192 F.2d 236 (10th Cir. 1951), the coercive statement was made by a nonunion employee in the presence of the employer, who not only failed to disavow the statement but affirmed it by his actions. Moreover, the employer in that case had engaged in other coercive conduct and that statement and the employer’s reaction to it were part of a pattern of unfair labor practices.

UNILATERAL WAGE CHANGES

Because we feel that the Union was not entitled to be certified on the basis of Martin’s ineligibility to vote, we do not reach the question of whether O’Connor violated the Act by making unilateral wage changes after certification.

We refuse to enforce the Board’s order and remand to the Board with directions to it to count Martin’s ballot and then, if necessary, to rule on Glenn’s eligibility to vote and thereafter to take such actions as are consistent with this opinion.

Costs are to be taxed to the Board.

      . In Banner Bedding, Inc., 214 N.L.R.B. No. 139, 87 L.R.R.M. 1417 (1974), the Board indicated that it also gave-weight to the fact that the parties admitted that, but for the oral agreement reached before the Board agent, they were prepared to proceed to hearing on the eligibility issue and would not have signed the consent-election stipulation. While there is no such specific admission here, it is clear from the record that the parties were prepared to go to hearing before the Board Examiner, and freely and voluntarily entered into the stipulation for the consent election and agreed to a list of eligible voters, which included Martin.

      . See Tidewater Oil Company v. N.L.R.B., 358 F.2d 363 (2nd Cir. 1966); Semi-Steel Casting Co. v. National Labor Relations Board, 160 F.2d 388 (8th Cir.), cert. denied, 332 U.S. 758, 68 S.Ct. 57, 92 L.Ed. 344 (1947); White Cloud Products, Inc., 214 N.L.R.B. No. 70, 87 L.R. R.M. 1570 (1974); Banner Bedding, Inc., supra, Tribune Co., 190 N.L.R.B. No. 65, 77 L.R.R.M. 1193 (1971); Cruis Along Boats, Inc., 128 N.L.R.B. No. 115, 46 L.R.R.M. 1419 (1960). Cf. Utrad Corp., 185 N.L.R.B. No. 49, 75 L.R.R.M. 1068 (1970).

      . Air Control Products, Inc., 139 N.L.R.B. 607, 620, 51 L.R.R.M. 1363 (1962), enf'd per curiam, 344 F.2d 902 (5th Cir. 1965); N.L.R.B. v. Byrds Mfg. Co., 324 F.2d 329, 332 (8th Cir. 1963); N.L.R.B. v. Standard Oil Co., 124 F.2d 895, 908 (10th Cir. 1941).