author: ESCHBACH, District Judge.

text:
    R. J. ADAMSZEWSKI et al., Plaintiffs-Appellants, v. LOCAL LODGE 1487, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al., Defendants-Appellees.
    No. 73-1166.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 18, 1974.
    Decided April 12, 1974.
    Rehearing Denied June 5, 1974.

      Irving G. Swenson, Joseph J. Hasman, Chicago, Ill., for plaintiffs-appellants.
    Jacob N. Gross, Chicago, Ill., for defendants-appellees.
    Before SWYGERT, Chief Judge, PELL, Circuit Judge, and ESCHBACH, District Judge.

       District Judge Jesse E. Esehbach of the Northern District of Indiana is sitting by designation.

   ESCHBACH, District Judge.

Plaintiffs-appellants have taken this appeal from a decision of the district court denying their motion for summary judgment and dismissing their action without prejudice. Plaintiffs-appellants argue that the district court was in error both in denying their motion and in dismissing the action. We agree with the district court and therefore will affirm.

The facts, as set forth in the district court’s memorandum of decision, are not substantially disputed. Plaintiffs-appellants are employees of Northwest Airlines, Inc. (NWA) and members of the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM). Plaintiffs-appellants brought this action against IAM’s Local Lodge 1487 and its officers seeking to enjoin union disciplinary proceedings which had been instituted against plaintiffs-appellants for crossing the picket line of a sister union. Plaintiffs-appellants seek to represent themselves and a class consisting of all employees against whom such proceedings have been instituted. A preliminary injunction was issued to delay the disciplinary proceedings during the pendency of this action.

On July 8, 1970, the Brotherhood of Railway and Airline Clerks (BRAC) struck against NWA and established picket lines. Although IAM’s collective bargaining agreement with NWA contained a no-strike provision , IAM nevertheless instructed its members, who were employees of NWA, not to cross BRAC’s picket line. However, NWA ordered its employees back to work and plaintiffs-appellants complied with NWA’s order, crossed the BRAC picket line and returned to work. The question of whether, in view of the no-strike provision, IAM had the right to instruct its members not to cross the BRAC picket line was referred to a System Board of Adjustment (SBA) by the Court of Appeals for the Eighth Circuit. Northwest Airlines, Inc. v. Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO, 422 F.2d 244 (8th Cir. 1970). The Board decided on December 14, 1970, that:

IAM, in light of the no-strike provisions of the bargaining agreement does not retain the right to instruct its members to honor the picket lines of a sister Union.

On December 8, 1970, shortly before the SBA handed down its decision, IAM and NWA negotiated a back to work agreement providing in paragraph VI that:

There will be no reprisals, recriminations, disciplinary actions, grievances or reprimands by either party against any employee represented by IAM because of any action or non-action during or arising from the strike.

Subsequently, despite the agreement of December 8, 1970, the union local notified plaintiffs-appellants that charges had been preferred against them for conduct unbecoming a union member, consisting of crossing the BRAG picket line, and ordered them to appear for trial on those charges. Plaintiffs-appellants thereupon filed this action to enjoin the disciplinary proceedings, relying upon the no-strike provision of the NWA-IAM collective bargaining agreement, the no-reprisal provision of the back to work agreement, and the decision of the System Board of Adjustment.

On January 26, 1972, an order was issued compelling the union and its officers to hold the disciplinary proceedings in abeyance until the final disposition of all issues in this case. The parties subsequently filed reciprocal motions for summary judgment. On December 14, 1972, the district court entered an order and memorandum of decision denying plaintiffs-appellants’ motion for summary judgment and treated the defendants-appellees’ motion for summary judgment as a motion to dismiss raising matters in abatement and dismissed the entire action without prejudice to plaintiffs-appellants’ right to commence further actions. The basis for the district court’s decision was that plaintiffs-appellants had violated the second proviso of Title 29, U.S.C. § 411(a)(4). The parties had previously signed and filed a stipulation with the court to the effect that NWA was financing plaintiffs-appellants’ suit. The district court found that NWA was an interested employer within the meaning of the proviso and that the suit could not be maintained by plaintiffs-appellants while financed by NWA.

I.

The first question presented is whether the district court erred in its construction of the second proviso of Title 29, U.S.C. § 411(a)(4), in determining that NWA was an “interested employer.” Appellant contends that one of the grounds for relief stated in the complaint is that the guarantee set forth in Title 29, U.S.C. § 411(a)(5), which provides that no union member can be disciplined unless he has been served with written specific charges and given a full hearing after a reasonable time within which to prepare his defense , was violated by appellees.

A.

Title 29, U.S.C. § 412, confers original jurisdiction on the district courts to hear controversies involving the guarantee set forth in section 411(a)(5). In order to safeguard the guarantees set out in 29 U.S.C. § 411-415, § 411(a)(4) prohibits labor unions from limiting the rights of their members to institute actions against the unions or their officers. However, the right to bring a suit against a union and its officers is qualified by two provisos. The first states:

Provided, That any such member may be required to exhaust reasonable hearing procedures . . . within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof [.]

The district court held that plaintiffs-appellants were not required to exhaust union procedures. The court reasoned that such actions would be futile since no internal union remedies existed which were capable of giving plaintiffs-appellants the relief they were seeking since they sought not merely to prevent possible union punishment but sought to prevent the disciplinary hearings themselves. The appellees have not cross-appealed from the decision of the district court, and therefore the propriety of the decision is not properly before us on review.

B.

The principal issue in this appeal is whether NWA is an “interested employer” within the meaning of the second proviso of 29 U.S.C. § 411(a)(4). The second proviso states:

And provided further, That no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition.

Appellants argue that although NWA is financing the suit, it gains no legal, financial or business advantage from the suit but is merely asserting a moral responsibility toward its employees who lawfully crossed the BRAC picket line. Appellees in reply argue that NWA is motivated by a desire to lessen the representational strength of IAM as the collective bargaining representative of the NWA employees which IAM represents. Thus, we must determine what is meant by the term “interested employer” and then decide whether NWA is an “interested employer.”

The second proviso of § 411(a)(4) has been construed in Farowitz v. Associated Musicians'of Greater New York, 241 F. Supp. 895 (S.D.N.Y.1965). That court determined that the proviso must be strictly construed and that the language must be given a construction as consistent as possible with the policy of the statute to guarantee the right of union members to sue the union. The court decided that the employers, despite the fact that they had financed several suits against the union, were not “interested” within the meaning of the statute. The court stated that what was at stake was the plaintiff’s livelihood as a musician and that the incidental propaganda benefit which would accrue to the employers did not rise to the level of an interest necessary to fall within the proviso.

The court focused on the statement of Representative Griffin regarding the purpose of the second proviso of § 411(a)(4):

The last proviso in Section 101(a)(4) was added to make sure that the interested employers do not take advantage of rights accorded union members by encouraging or financing harassing suits or proceedings brought by union members against their unions. The purpose of the proviso should be kept in mind and it should not be so narrowly construed as to impose unnecessary or unintended restrictions upon employers in relationship with their employees.

Cong.Rec.App. A 7915 (Sept. 10, 1959). It is a fair reading of the Farowitz opinion to say that the court narrowly construed the word “interested” and decided that in the context of the facts before it the employer was not “interested” and the suit was not a harassing suit.

The instant action is distinguishable from Farowitz as the district court correctly noted. Farowitz had been expelled from the union for publishing a bulletin contending that taxes imposed by the union on members were illegal. The dispute was clearly one solely between the union and its ex-member. Farowitz merely sought reinstatement in the union and damages. The question of the legality of the taxes imposed by the union was the subject of other suits in which the employers in question were parties. The instant action, although principally a dispute between the union and some of its members, has far greater implications. It involves not only questions relating to the no-strike provision of the collective bargaining agreement and an interpretation of that agreement by the System Adjustment Board, but also involves the back to work agreement between NWA and I AM to which the appellants claim to be beneficiaries. The instant action is not as limited in scope as Farowitz which involved one union member’s right to express his views of union policies. The instant action, arising out of a prior dispute between NWA, BRAC and I AM necessarily has greater implications in the area of labor-management relations in the airline industry. Certainly, if the union can enter a back to work agreement with the employer after a walkout and then proceed either to interpret its provisions as the union wishes or openly flaunt its provisions, the employer must necessarily be concerned. The entire posture of present and future labor-management relations must be affected. Similarly, the employer stands to gain, when it enters an agreement with provisions beneficial to a group of employees represented by the union but who have adhered to a position adverse to that taken by the union. A potential for creating divisions within the union, which may weaken the union’s future bargaining power, can be gained by the employer, providing it can enforce the agreement. Obviously, all these considerations put the instant action in an entirely different posture than the Farowitz facts.

Certainly, the Farowitz court was correct when it decided that the second proviso of § 411(a)(4) is meant to prevent harassing suits, but that is not its only purpose. In the original bill of rights (of labor organization members) amendment of Senator McClellan, § 101(a)(4) [codified after enactment as 29 U.S.C. § 411(a)(4)] did not contain the second proviso. 105 Congressional Record 6475 (1959). The second proviso was added in the so-called Kuehel amendment and did not contain the word “interested.” The Kuehel amendment provided:

That no employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition.

105 Congressional Record 6693 (1959). The word “interested” was later added during the course of debate on the, amendment and after the Senate had expressly stated that it was creating “legislative history” in regard to the reason for its insertion. Senator Goldwater had sought to amend the Kuchel amendment by adding at the end:

unless such employer has no dispute, controversy, contract, connection or relationship of any kind in any area of activity, with the labor organization against which such action or proceeding has been or is being brought by such member.

105 Congressional Record 6724 (1959). Senator Goldwater was concerned with the fact that under the Kuchel proviso, a neighbor of a union member, who happened to be a businessman, could not finance the union member’s suit because such neighbor was “an employer.” 105 Congressional Record 6724 (1959). Senator Mundt later added that even a bank was “an employer” so that it could be questioned whether even a bank could lend a union member money to finance a suit without violating the proviso. 105 Congressional Record 6725 (1959). Nevertheless, the sentiment was that Senator Goldwater’s proposed amendment went too far. Therefore, Senator Javits suggested that Senator Goldwater’s proposed amendment would not be necessary and the. problem which he sought to prevent could be avoided by insertion of the word “interested” to make the Kuchel amendment read “no interested employer. - .' . ” 105 Congressional Record 6725 (1959). Senator Goldwater asked Senator Javits to explain what he meant by “interested.” In the explanation of Senator Javits, it was brought out that the word “interested” was inserted to allow a friend or bank to finance a suit but not an employer who may gain an advantage over the union from such suit. Otherwise, an employer with such an interest could bring undue pressure on the union. 105 Congressional Record 6725 (1959). Subsequently, the Senate voted to accept the proviso, amended to read “any interested employer, . . . ” 105 Congressional Record 6727 (1959), and the bill eventually became law in this form. Senator Goldwater in his remarks on the proviso stated:

. the Senate modified the limitation to apply to interested employers only, the legislative history making it clear that employers such as those in the foregoing examples [i. e., banks, friends, or relatives who might also be an employer] were not included in the limitation which would apply only to employers who had a concrete interest in the litigation because of some relationship in the union other than the mere connection with the union member bringing the suit.

From this background of the relevant legislative history, it is clear that Congress meant to prohibit an employer from financing a suit by a union member when the employer had a concrete interest in the litigation due to its relationship with the union. Therefore, the district court did not err when it decided that interested meant “having an interest in something; concerned.” American College Dictionary 635 (1970). More precisely, interested can be defined as: “having a share or concern in some project; liable to be affected or prejudiced ; also having self-interest. . . . ” Webster’s New.Collegiate Dictionary 439 (I960).’ Having a concrete interest in the litigation means having a share or concern in the litigation, liable to be affected by it. We decide that this is the meaning intended by Congress when it added the word “interested” to the proviso.

Whether an employer is interested in the litigation, that is, whether an employer is concerned with it or is liable to be affected by it or has some self-interest in it, must necessarily be determined in the factual context which gave rise to the litigation. When viewed against the backdrop out of which the dispute between the appellants and their union developed, there is no doubt but that NWA has a concrete interest in the litigation arising out of their relationship with IAM. NWA has an interest in seeing that agreements which they enter into with the union are carried out in good faith by the union. Their future bargaining position will be influenced by a determination of whether the union has violated the no-reprisal agreement or not. Bargaining strategy will be influenced by a knowledge of whether or not the union can be trusted to adhere to its agreements.

In addition, the employer stands to gain from any divisiveness within the union which could weaken it at the bargaining table where it would be unable to.present a solid front against NWA. Any weakening of the presentational strength of IAM as the exclusive bargaining representative of NWA’s employees in the crafts and classes of service would redound to NWA’s benefit at the bargaining table and in its over-all relationship with labor. Appellants argue that no legal, financial or business advantage is gained by NWA from this suit. It is clear that NWA has a practical business interest in the suit and could gain an improvement in its collective bargaining position. The district court committed no error in deciding that the second proviso of § 411(a)(4) had not been complied with and correctly decided that a suit could not be maintained pursuant to § 412.

II.

Appellants contend that several alternate grounds exist which entitle them to relief which were properly pleaded and are not precluded by 29 U.S.C. § 411(a)(4). They argue that they not only relied on the protection of the Labor Management Reporting and Disclosure Act’s fair trial provision but also sought relief under the no-strike provision of the NWA-IAM collective bargaining agreement, the no-reprisal paragraph of the back to work agreement and the decision of the System Board of Adjustment. It is argued that the district court erred in dismissing these alternate causes of action.

A.

We agree with appellants initial contention that the proviso of 29 U.S.C. § 411(a)(4) does not preclude relief sought pursuant to 45 U.S.C. §§ 151-188 of the Railway Labor Act, if otherwise properly brought. Title 29 U.S.C. § 412 grants original jurisdiction in the district courts for any violations of rights granted in 29 U.S.C. §§ 411-415. Section 413 is a saving provision which states that nothing contained in sections 411-415 shall limit the rights and remedies of any union member existing under any other federal law. This section preserves pre-existing federal remedies. Tirino v. Local 164, Bartenders and Hotel and Restaurant Employees Union, 282 F.Supp. 809, 813 (E.D.N.Y.1968). In addition, 29 U.S.C. § 523(b) provides that nothing in sections 401-531 of Title 29 shall supersede or impair the provisions of the Railway Labor Act or the National Labor Relations Act or the rights conferred thereby. Appellants are not therefore precluded by 29 U.S.C. § 411 from pursuing any other remedies properly brought.

Appellants argue that the System Board of Adjustment’s award is enforceable in federal court and that the award provides the basis for the relief sought. It is well established that an award of the SBA is entitled to enforcement in the federal courts. Int’l Ass’n of Machinists v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67, rehearing denied, 373 U.S. 947, 83 S.Ct. 1533, 10 L.Ed.2d 702 (1963); Buzzard v. Local Lodge 1040 Int’l Ass’n of Machinists & Aerospace Workers, 480 F.2d 35 (9th Cir. 1973). In such a case jurisdiction would exist pursuant to 28 U.S.C. § 1331 or § 1337 provided that the complaint presented a substantial claim arising under the Railway Labor Act, 45 U.S.C. § 151-188. However, the SBA award will not support the relief requested by appellants. The SBA decision expressly stated that the award was not based on any consideration of “matters of discipline ... of individuals for refusing to cross picket lines of sister unions.” Opinion of NWA/IAMAW System Board of Adjustment 5 (1970). Rather, the focus of the SBA was on the no-strike clause and its effect on union conduct. Id. at 2, 4, 5. The issue presented to the SBA by the Court of Appeals for the Eighth Circuit was:

[Wjhether IAM, in the light of the no-strike provisions of the bargaining agreement, retains the right to instruct its members to honor the picket lines of a sister union.

Northwest Airlines, Inc. v. Int’l Ass’n of Machinists and Aerospace Workers, 442 F.2d 244, 246 (8th Cir. 1970). The decision reached by the SBA was that IAM did not retain the right to instruct its members to honor the picket lines of a sister union. Opinion of NWA/IAMAW System Board of Adjustment, supra at 11. Therefore, the SBA award is limited in scope and it does not give appellants a cause of action to enjoin the disciplinary hearings. Since the injunctive relief sought could not be based on the SBA award, the district court committed no error in dismissing that claim. Accord, Buzzard v. Local Lodge 1040 Int’l Ass’n of Machinists and Aerospace Workers, supra, 480 F.2d at 40.

B.

Appellants assert that the district court had jurisdiction to grant the injunctive relief requested based on the alleged breach of the no-strike provision of the collective bargaining agreement and the no-reprisal provision of the back to work agreement guidelines. Under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, an employee may sue his employer for breach of a promise contained in the collective bargaining agreement that was intended to confer a benefit upon the individual. Amalgamated Ass’n of St., Elec. Ry. and Motor Coach Emp. of America v. Lockridge, 403 U.S. 274, 298-299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473, rehearing denied, 404 U.S. 874, 92 S.Ct. 24, 30 L.Ed.2d 120 (1971); Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L. Ed.2d 246 (1962). Section 301 also allows a suit by a union member seeking redress from union interference with rights conferred on employees by employer promises in the collective bargaining agreement if the union action constitutes a breach of the duty of fair representation. Amalgamated Ass’n of St., Elec. Ry. and Motor Coach Emp. of America v. Lockridge, supra, 403 U.S. at 299, 91 S.Ct. at 1924; Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370, rehearing denied, 376 U.S. 935, 84 S.Ct. 697, 11 L.Ed.2d 655 (1964). See also, Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). The no-reprisal clause in the back to work agreement is a “contract” cognizable under § 301(a). Retail Clerks Int’l Ass’n v. Lion Dry Goods, 369 U.S. 17, 23-30, 82 S.Ct. 541, 545-549, 7 L.Ed.2d 503 (1962). It has recently been held that § 301 will support a suit by union members against the IAM seeking redress from a refusal of the union to honor the rights conferred on employees by union promises contained in the no-reprisal agreement. Buzzard v. Local Lodge 1040 Int’l Ass’n of Machinists and Aerospace Workers, supra at 480 F.2d 40, 41. Arguably, the appellants could have maintained an action under § 301. But we need not decide that point since another ground exists for dismissing this action under any theory based on the no-strike or no-reprisal agreement.

The only relief sought by appellants was an injunction of the disciplinary proceedings. They did not seek any money damages under any of the alternate theories pleaded. It is well established that equitable relief will not be granted when a remedy exists at law which would completely compensate a party for any damages which he may have suffered. See, Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 954, 3 L.Ed.2d 988 (1959). To be entitled to injunctive relief a party must show that he has no adequate remedy at law and will suffer irreparable harm unless the injunction issues. Appellants stated in their complaint that there was no adequate legal remedy and that they would suffer irreparable harm if forced to submit to disciplinary proceedings in that their standing as members of IAM and with NWA would be jeopardized. However, such potential harm is completely speculative at this time. None of the appellants has had to undergo disciplinary hearings in this matter. None has been fined, suspended or in any way sanctioned by the union. It is anomalous for appellants to argue that their employment with NWA may be jeopardized when, in fact, NWA is financing this suit. Similarly, it is difficult to see how appellants’ position within the union will be jeopardized to any greater extent by requiring them to attend the disciplinary proceedings than it would be by issuing an injunction in their behalf against the holding of such proceedings. This is not to be interpreted that this court sanctions the union’s conduct toward these employees, which conduct is questionable at best. The attempt of the union to discipline its members in the face of the no-strike provision, the SBA award and the no-reprisal agreement presents a serious question of the exposure of the union to damages if it should elect to discipline appellants. The Buzzard court has already determined that a remedy does exist for disciplined union members for violation of the no-reprisal agreement. Buzzard v. Local Lodge 1040 Int’l Ass’n of Machinists and Aerospace Workers, supra. In addition, the decision of the Supreme Court of the United States in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) should make it clear to the union that remedies exist for arbitrary conduct toward its members and for breaches of the duty to represent all members without hostility or discrimination toward any. But, in the absence of a showing of irreparable harm or the inadequacy of legal remedies, no injunction can issue.

Appellants have also argued that it is the holding of the disciplinary proceedings themselves in violation of the no-reprisal agreement which wrongs them. Yet, appellants are unable to show that being subjected to disciplinary proceedings will cause them irreparable harm. If it is decided that the union’s action was a violation of the collective bargaining agreement or the no-reprisal agreement, any harm suffered by appellants could be adequately compensated by money damages. Cf., Sanders v. Air Line Pilots Ass’n Int’l, 473 F.2d 244 (2nd Cir. 1972).

Appellants admit at page four of their reply brief that fellow union members have a right to complain against them. When a complaint is filed, Article L, Section 7, of the Constitution of the IAMAW provides that the president of the local must proceed to bring the accused member to trial. Appellants are aware of this provision and do not deny that as union members they are bound by it. If the charges brought by members against fellow members are found, sufficient by the trial committee, Article L requires a trial. Yet, it is not usually the holding of this trial which is thought of as “disciplinary” but the sanctions imposed which constitute the discipline. The no-reprisal agreement prohibits the union from taking “disciplinary action” because of a member’s conduct during the BRAC strike. It is difficult to see, and appellants have not shown, how holding the disciplinary hearings per se, as distinguished from any punishmment which may be imposed, will cause appellants irreparable harm. Therefore, even if a cause of action can be maintained based on the no-reprisal agreement pursuant to 29 U.S.C. § 185, since only equitable relief was sought and since no basis for that relief was shown, the district court was not in error by dismissing the entire action.

Since the district court dismissed without prejudice, nothing in the decision of that court and nothing in the opinion in this court precludes appellants from bringing an action pursuant to 29 U.S.C. § 412, provided it is not financed by NWA. Appellants also are not precluded from seeking any relief available under 29 U.S.C. § 185.

The decision of the district court in denying plaintiffs-appellants’ motion for summary judgment and in dismissing their action is affirmed.

Judgment affirmed.

ON PETITION FOR REHEARING

This cause is again before the court on plaintiffs-appellants’ petition for rehearing. The petition will be denied.

On April 12, 1974, this court affirmed the order of the district court entered on December 14, 1972, dismissing plaintiffs-appellants’ action without prejudice. The decision affirming the district court was entered after both sides were given ample opportunity to brief and orally argue the merits of their contentions. In their petition for rehearing, plaintiffs-appellants essentially seek to reargue points which have already been decided adversely to them. Once again we find no merit in plaintiffs-appellants’ contentions.

One point raised by the petition for rehearing merits some discussion. Plaintiffs-appellants argue that this court based its decision in part on a misunderstanding of § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185. They argue that any person subject to the Railway Labor Act, 45 U.S.C. § 151 et seq., is exempted from § 301 coverage. However, the nonexistence of a remedy under § 301 does not in any way alter our earlier decision. In our opinion, we stated that:

Arguably, the appellants could have maintained an action under § 301. But we need not decide that point since another ground exists for dismissing this action under any theory based on the no-strike or no reprisal agreement. (Emphasis added.)

The other ground upon which the decision was based was that plaintiffs-appellants were not entitled to injunctive relief. Clearly, any arguendo reference to the possibility of a § 301 action in our earlier decision has no bearing on the decision that the suit was not a proper one for injunctive relief. The district court properly dismissed the entire action. Thus, even if plaintiffs-appellants cannot maintain a § 301 action, that ground alone does not entitle them to either a rehearing or a reversal of the district court.

Additionally, it must again be pointed out that the action of the district court in dismissing the action without prejudice does not bar plaintiffs-appellants from seeking future relief. In our earlier opinion, we stated that plaintiffs-appellants were not precluded from bringing an action pursuant to 29 U.S.C. § 412 provided that it was not financed by NWA. Plaintiffs-appellants may also bring a suit financed by NWA if properly brought and if the proviso of 29 U.S.C. § 411(a) (4) is not violated. Nor did the dismissal by the district court bar any other relief under the Railway Labor Act, including any possible suit for breach of the duty of fair representation. In summary, if plaintiffs-appellants are disciplined, they are free to seek damages under any theory of action which they decide is applicable as long as the proviso of § 411(a)(4) is not violated.

Accordingly, the petition for rehearing is denied.

      . “It is understood and agreed that the Company will not lock out any employee covered hereby and the Union wjll not authorize or take part in any strike or picketing of Company premises during the life of this Agreement until the procedures for settling disputes as provided herein and as provided by the Railway Labor Act have been exhausted.”
      Article XXV, Paragraph (k), Collective Bargaining Agreement between NWA and IAM of January 1, 1969.

      . Safeguards against improper disciplinary action — No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given -a reasonable time to prepare his' defense; (0) afforded a full and fair hearing.
      (b) Any provision of the constitution and bylaws of any labor organization which is inconsistent with the provisions of this section shall be of no force or effect. 29 U.S.C. § 411(a)(5).

      . 29 U.S.C. § 411(a)(4) without its two provisos provides that:
      Protection of the right to sue — No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator. . . .

      . In Farowitz the employers were involved as parties in several suits attacking the union tax. NWA has brought suit as party plaintiff seeking to enjoin the union from instructing its members to honor the picket lines and was unsuccessful. See Northwest Airlines, Inc. v. Int’l Ass’n of Machinists and Aerospace Workers, 323 F.Supp. 107 (D. Minn.1970), on appeal, 442 F.2d 244 (8th Cir. 1970), on remand, 332 F.Supp. 1330 (D.Minn.1971). In Northwest Airlines, Inc. v. Int’l Ass’n of Machinists and Aerospace Workers, 336 F.Supp. 1117 (D.Minn.1972), the court held that NWA did not have standing to seek redress for union members who were disciplined since NWA could not show that it was injured or aggrieved.
      NWA is now engaged in financing suits brought by union members against the Union. In light of the prior litigation on its own behalf which was unsuccessful, it would certainly indicate that NWA itself has indicated an interest in the litigation which is not merely an assertion of a “moral responsibility.”
      These facts also distinguish the instant action from Faromtz.

      . Mr. GOLDWATER. I understand what it means, but we want to make a legislative history. I want the proponents of this interesting word “interested” to explain it.
      I yield to the Senator from New York.
      Mr. JAVITS. I have in mind the fact that an employer who has an interest in the litigation ought not to bring pressure upon a union. In the eventuation of a relationship of the litigant to the union, an interested employer should not be a party to finance the suit.
      We ourselves are so against antibarratry statutes that I do not want to be a party to a law which would prevent a union member from finding a friend, who happens to be an employer of people in a totally unrelated business, a bank or anything else, to loan him the money. We should not have a law to make it impossible to borrow from a friend to start a suit.
      Mr. ALLOTT. May I ask a question, for the legislative history?
      Mr. GOLDWATER. I yield.
      Mr. ALLOTT. Including the word as the Senator has used it, in the opinion of the Senator would the language include “any” employer? Let me assume that the employer is in the general grocery business. Would the word “interested” include any other employer?
      Mr. JAVITS. I think it probably would if the litigation involved the union in the whole line of business, because the words of art are “employer or employer association.”
      Again we have a balance of convenience. Neither side ought to trim this, and that is why I have given the legislative history.

      . Plaintiffs-appellants argue that the district court erred by failing to order that NWA be . joined as a party under Rule 19(a), Fed.R. Oiv.P. The district court was correct in its decision. Rule 19(a) clearly is inapplicable. NWA is not needed for just adjudication and has freely chosen not to participate as a party but merely to finance the action. The court need not disturb NWA’s choice.

      . 29 U.S.C. § 413 provides: “Nothing contained in this subchapter shall limit the rights and remedies of any member of a labor organization under any State or Federal law or before any court or other tribunal, or under the constitution and bylaws of any labor organization.”

      . 29 U.S.C. § 523(b) provides: “Nothing contained in this chapter [§§ 401-531] and section 186 (a-c) of this title shall be construed to supersede or impair or otherwise affect the provisions of the Railway Labor Act, as amended, or any of the obligations, rights, benefits, privileges, or immunities of any carrier, employee, organization, representative, or person subject thereto; nor shall anything contained in this chapter be construed to confer any rights, privileges, immunities, or defenses upon employers, or to impair or otherwise affect the rights of any person under the National Labor Relations Act, as amended.”

      . Apparently contra is Verville v. IAMAW (unreported decision of D.C.E.D.Mich., April 25, 1972). However, the court did not discuss the scope of the question presented to the SBA nor express limitation in the Board’s award.

      -. Section 7 provides in relevant part:
      t¡t # sj: * í¡t

      It is the duty of any member who has information as to conduct of a member covered by Sec. 3 of this Art. to immediately prefer charges in writing against such member. . . .
      * * * * *
      In the event that any L.L., or the members thereof fail to proceed as prescribed herein, then any officer or representative, or member may file written charges against such member or members with the I.P. Upon the receipt of such charges, the I.P. shall [command] said L.L. to proceed to place the accused on trial under the provisions of this Art.
      If said L.L. fails or refuses for 15 days thereafter, to proceed as ordered by the I. P., then the I.P. shall notify the accused and the L.L. of which the accused is a member, of the time and place, when and where a special committee will meet for the purpose of hearing evidence and trying the accused.


source: Caselaw Access Project

author: GIBBONS, Circuit Judge.

license: Public Domain

text:
    Mayme FOSTER, guardian ad litem of Oscar Foster, an incompetent, Appellee, v. CRAWFORD SHIPPING CO., LTD., Appellant.
    No. 73-1600.
    United States Court of Appeals, Third Circuit.
    Argued March 11, 1974.
    Decided April 30, 1974.

      Frank C. Bender, Kelly, Dessey & Scanlan, Philadelphia, Pa., for appellant.
    Marvin I. Barish, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellee.
    Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order of the district court denying the motion of defendant Crawford Shipping Company for a new trial on damages only. The original plaintiff, Osear Foster, brought an action to recover damages for his personal injuries suffered in an accident while, as a longshoreman, he was unloading defendant’s vessel. On September 28, 1972, four days before the trial began, his attorneys filed a motion seeking to have Mayme Foster, the appellee, appointed guardian ad litem for Oscar Foster. On September 29, 1972 the court entered an order adjudicating Foster an incompetent. Thus he could not testify at the trial, and did not appear in court. The court proceeded first with the trial of liability issues and at the end of that aspect of the case entered a directed verdict that the unseaworthiness of defendant’s vessel caused the accident in which Oscar Foster fell into a cargo hold. The liability determination is not challenged on this appeal. The trial then proceeded on the issue of damages.

It was plaintiff’s theory that Foster was suffering from severe schizophrenia, and that his fall into the cargo hold on defendant’s vessel was a “triggering mechanism” which resulted in that psychotic condition. In support of that theory the plaintiff offered the testimony of Dr. Harold Dillon, Chief of Psychiatry at the University of Pennsylvania Division of the Philadelphia General Hospital, who had treated Oscar Foster between January 22, 1969 and the date of the trial, and who in answer to a hypothetical question expressed the opinion based on reasonable medical certainty that the fall was a triggering mechanism for Foster’s psychiatric condition. There was contrary expert opinion testimony as to the connection between the fall and the schizophrenia by Dr. Joseph Robinson, an Assistant Professor of Psychiatry at Hahnemann Medical College, who examined Foster on behalf of the defendant. Dr. Dillon’s testimony as to prognosis suggested that there was progressive deterioration which would continue, that Foster would never be gainfully employed, that he would need hospitalization for at least one month a year for the rest of his life and that he would require monthly visits to a psychiatrist. As might be expected, Dr. Robinson’s testimony as to prognosis was considerably more optimistic, suggesting the likelihood of periodic remission. There was evidence establishing a life expectancy of 37 years and a work expectancy of 30 years. The amount of damages was clearly related to Foster’s present condition and prognosis. The verdict is for $500,000.

On the evening of the second day of the trial an attorney for the plaintiff, without notice to the court or to opposing counsel, went to Oscar Foster’s home with a videotape crew which recorded a two-minute segment showing the attorney interrogating Foster. We have viewed the segment of videotape. It shows Foster to be in an apparently uncommunicative and partially catatonic state, responding to interrogation with grunts and growls. The tape discloses none of the circumstances surrounding its preparation and discloses nothing about Foster’s state immediately before or after the intrusion by the video crew. The defendant objected to showing the tape to the jury:

“Mr. Kelly: Your Honor, I would object to the admission of that tape. I have just learned about it just now. It’s highly prejudicial to the defense inasmuch as we are not familiar with the circumstances surrounding the taking of the tape.
We were not afforded an opportunity to be there, which we could have been. Therefore, under all those circumstances, and the late appearance of this tape, although taken last night, the defense objects to its admission.
The Court: What is the purpose that you are introducing this ?
Mr. Barish: I am introducing this strictly to be illustrative of Dr. Dillon’s testimony. It has no greater purpose than a chart that a doctor would use to talk about in his testimony. It has no greater purpose than a schedule to know what a doctor would use to explain a broken bone, and Dr. Dillon was to state what this gentleman is like, and this is illustrative of his present condition.
Mr. Kelly : Your Honor, the difference between a chart — a skeleton and that tape is obvious and apparent. That tape is inflammatory to the jury.
Dr. Dillon is in a position just as any doctor is in any case to testify from his notes, through his medical expertise as to the condition of Mr. Foster.
If the only purpose for that tape is illustration, I consider that the prejudicial fact was involved in the jury seeing that tape are — they far outweigh any importance of illustration.
The Court : Doctor, is this the first time you have seen this tape ?
The Witness [Dr. Dillon]: I saw it at one time today.
The Court: Is that illustrative of what you would testify to ? Have you seen him in a condition like this ?
The Witness: No sir. I saw him last [S]aturday afternoon at his home at which time he was totally mute and catatonic. He was not making the grunting, growling and snarling things at the time I saw him.
The Court : I don’t think it will inflame anybody. I don’t know that it will prejudice anybody, but I am trying to figure out for what purpose it is being introduced if this doctor had never had a chance to observe him in that condition. I thought that was backing up his position.
Mr. Barish: . . .
I think the jury may have some question as to what he is really like, and I think that that weighs heavily in favor of showing it to the jury because they have never seen Mr. Foster.” (48A-51A)

The videotape was shown to the jury. Plaintiff offers several justifications for admission. First it is urged that because the defendant did not insist upon production of the video crew to authenticate the tape, he waived any other objection. This contention misstates the record. Next, she urges that the videotape was admissible in connection with Dr. Dillon’s testimony as a fair representation of the condition for which he was treating Foster. See, e.g., Jenkins v. Associated Transport, Inc., 330 F.2d 706, 711 (6th Cir. 1964). But Dr. Dillon’s testimony was that the videotape was not a fair representation of the condition in which he saw Foster. Moreover the videotape has a communicative content other than merely pictorial. Undoubtedly hearsay communications to a physician for the purpose of obtaining treatment, and possibly videotape and motion picture recordings of those communications, are admissible as exceptions to the hearsay rule on the theory that the heed for accurate diagnosis and treatment and the opportunity to cross examine the physician afford appropriate hearsay safeguards. But that rule is inapplicable to ex parte communications prepared outside the presence of a treating physician for use as testimony. Plaintiff now urges that the tape qualifies as admissible hearsay on the theory that all conduct is admissible to establish insanity. See 2 J. Wigmore, Wigmore on Evidence § 228 (3d ed. 1940). We need not here consider whether an ex parte staged demonstration, rather than testimony respecting observations of the everyday conduct of the allegedly insane person, qualifies as evidence of irrational conduct. The plain fact is that Foster was an adjudicated incompetent. His insanity was not in issue. The issue was the extent of his disability and his prognosis. Finally plaintiff urges that the videotape was admissible, as would be an anatomical chart or a skeleton, to illustrate Dr. Dillon’s testimony. That is not the use to which it was put. Plaintiff’s attorney offered the videotape to establish Foster’s condition, referred to Foster’s grunting and groaning in summation in support of an award for pain and suffering, and referred to the videotape as establishing permanent disability. But even if its use had been so restricted, any benefit which might have been derived in the factfinding process by such an illustration' was far outweighed by the prejudice of admitting what amounted to ex parte testimony from the absent incompetent. The ruling admitting the videotape was error.

In addition to its objection to the use of the videotape, the defendant advanced in support of its motion for a new trial the refusal of the trial court to grant a mistrial based on the closing remarks of counsel. The following are typical:

“I would also like to point out to you that, with the size, assets and resources of the company that Mr. Kelly represents, if there were, in fact, one witness who could have contradicted the evidence of Mr. Foster’s prior good condition, they would have found him; . . . ” (145A)
“Did they, with all of their resources, with all of their ability to go out and find people and do things, did they come into this courtroom with any factual witness? No. What did they do? They brought in Mr. Penn.” (152A)
“Now, ladies and gentlemen, you are the collective conscience of this community. You represent not only yourselves ; you represent this entire community; and it’s up to you, ladies and gentlemen, to say whether one of these foreign steamship companies is going to come into our port and ruin one of our citizens and then, instead of coming in and saying it was our fault, bring in a phony witness like Mr. Penn instead of saying sure, this was the cause of this, and bring in a phony witness like Doctor Robinson.” (158A)
“I say, ladies and gentlemen, you are the collective conscience of this community, and I ask that you let the word go out from this courtroom that, when these foreign operators come into this port and destroy one of our citizens, that you are not going to tolerate the kind of shenanigans that went on in this case.” (159A).
“ . . . [Tjhere is something wrong when the damage that they did has to be paid for by the taxpayers of the state, and so Mr. Foster, not only because he should have the best treatment or reasonably best treatment, but because, you, each of you, don’t have to share the responsibility for what they did, he is entitled to be treated in private hospitals.” (166A)
“Ladies and gentlemen, you saw him grunting and groaning. It’s been said that a human being made in God’s image is second only to the angels. And what do they do? They turned this human being into someone who acts like an animal, and the tragedy is that, after they did it, then they come in with Mr. Penn and Doctor Robinson and try to fake you out.” (169A).

In support of the foregoing argument the plaintiff relies on Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1248 (3d Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971), in which we refused to set aside a verdict on the basis of an oblique reference to the financial resources of the defendant Humble Oil, to which no timely objection was made. That reliance is misplaced. We did not suggest in Domeracki that we sanctioned appeals to juror prejudice by virtue of disparity of financial resources, by virtue of foreign ownership of the vessel, or by none too subtle suggestions that if the defendant did not pay substantial damages plaintiff would be a burden on the community. The quoted remarks were improper summation and were not, on this record, cured by the court’s instruction.

Judging the two errors to which we have referred in the light of the entire record, we conclude that the refusal of the district court to grant a new trial was inconsistent with substantial justice. Fed.R.Civ.P. 61. We reach this conclusion reluctantly, since the death of Oscar Foster after the first trial has altered the situation of the parties. Nevertheless, on this record the defendant is entitled to a new trial on damages.

The judgment of the district court will be reversed and the case remanded for a new trial on damages.

      . The court instructed :
      “This case should be considered and decided by you as an action between persons of equal standing in the community, equal worth in holding the same or similar positions in life. A corporation is entitled the same fair trial at your hands as a private individual. All persons, including corporations, stand equal before the law and are to be dealt with as equals in a court of justice.” (14A).


author: JAMES HUNTER, III, Circuit Judge:

text:
    Herbert F. STEIGLER, Appellant, v. Raymond W. ANDERSON, Warden, Delaware Correctional Institution, Appellee.
    No. 73-1720.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 9, 1974.
    Decided April 18, 1974.

      William E. Taylor, Jr., Henry A. Heiman, Steven R. Karlsen, Wilmington, Del., for appellant.
    Jerome O. Herlihy, Chief Deputy Atty. Gen., Richard R. Wier, Jr., State Prosecutor, Wilmington, Del., for appellee.
    Before ADAMS, HUNTER and WEIS, Circuit Judges.

      . Accord, United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973); United States v. Green, 474 F.2d 1385 (5th Cir. 1973). Although we do not suggest this is a prerequisite to entry by firemen, it is undisputed that Mrs. Steigler, a co-owner of the house, summoned the aid of the firemen.

   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Appellant Herbert F. Steigler was convicted in the Superior Court of Delaware on three counts of first degree murder and one count of assault with intent to commit murder in connection with a fire in the home of appellant on October 19, 1968. On appeal, the Delaware Supreme Court affirmed the conviction. Steigler v. State, 277 A.2d 662 (1971). Appellant filed a petition for a writ of certiorari, and in a brief order, the Supreme Court vacated appellant’s dealth penalty. Steigler v. Delaware, 408 U.S. 939, 92 S.Ct. 2872, 33 L.Ed.2d 760, citing Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972). Proceeding in forma, pauperis, appellant petitioned the United States District Court for the District of Delaware for a writ of habeas corpus. The district court denied the petition and we affirm, 360 F.Supp. 1286.

In the early morning hours of October 19, 1968, fire erupted at appellant’s home in Deerhurst, New Castle County, Delaware. Appellant’s wife summoned the aid of a nearby fire company which responded promptly and brought the fire under control, but not before appellant’s daughter, mother-in-law and father-in-law had died. During the course of ex-languishing the blaze, attempting to rescue persons trapped in the house, securing the premises and investigating for the causes of the fire, various firemen, including Deputy Fire Marshall Richard Lynch, discovered several items of physical evidence of arson. Openly situated throughout the house were numerous glass containers, some broken and some filled with gasoline. Sections of the rug upon which several of the containers had been placed were soaked with gasoline. Surmising from this and other evidence that the fire was the result of arson, and having assisted in removing at least one corpse, Lynch pláced a call to the New Castle County Fireboard requesting that the Delaware State Police be dispatched to the scene. Shortly thereafter Sgt. Daniel Bramble of the Delaware State Police and several of his colleagues arrived and, without a warrant, proceeded to remove the physical evidence of arson discovered by Lynch and the various firemen. The police also took pictures of some of this evidence and the surrounding area from which they were removed. These photos and physical evidence were admitted into evidence at trial over appellant’s objection. Appellant contends that since the police did not obtain a search warrant, his rights under the fourth amendment were violated and hence the evidence in question was inadmissible.

Sgt. Bramble of the Delaware State Police interviewed appellant on four separate occasions between October 19 (morning of the fire) and October 24, before charging him with arson and murder. On none of these occasions was appellant informed of his Miranda rights, which appellant contends violated his fifth amendment rights.

EVIDENCE SEIZED WITHOUT A SEARCH WARRANT

While searches and seizures must generally be undertaken by state officials only after obtaining a search warrant, the Supreme Court has recognized a number of situations in which a warrantless search may be lawful. In each of these situations the Supreme Court found exigent circumstances rendering imperative official action without first obtaining a warrant. We believe a similar situation existed in the present case.

Although it is not clear whether appellant concedes this, we think it is beyond’question that firemen have a right to enter a premise to suppress a fire without having to obtain a warrant. We simply do not think that a “search” in the fourth amendment sense occurs when firemen enter a burning home to suppress a fire. Moreover, seeking out and rescuing trapped occupants, ventilating the building after the fire is brought under control, searching for any smoldering fires and cleaning up prior to departing all involve proper fire fighting functions which cannot reasonably be viewed’ as searches under the fourth amendment.

In any event, even if such actions of firemen were searches under the fourth amendment, we think no warrant was required since a more exigent circumstance is difficult to imagine. We think it readily follows from this that any evidence of arson seen by firemen in plain view while performing these functions may be seized without first obtaining a warrant. See e. g., Coolidge v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

Not all of the evidence objected to by appellant, however, was seen by the firemen during the course of rescuing trapped occupants, suppressing the fire and securing the premises. Some of the evidence was found while Lynch conducted his investigation into the cause the fire.

Although Lynch was authorized by statute to investigate “the origin or circumstances” of any fire in Delaware, we recognize this does not necessarily end our inquiry. Regardless of state authority, the acts of state officiáis are judged by federal standards when fourth amendment violations are claimed. E. g., Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Thus, even though Lynch had authority under state law to investigate the cause of the fire, the question remains whether the fourth amendment required that he first obtain a search warrant.

Appellant relies heavily on the companion cases of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), in which the Supreme Court held that the fourth amendment forbids warrantless area inspections for violations of municipal housing and business code provisions. We are not faced, however, with the situation of a fire mar-shall inspecting a home for violations of fire code provisions. Nor are we faced with the situation (and therefore we express no opinion as to the validity) of a fire marshall investigating, without a warrant, the cause of a fire several hours or days after the fire.

The present situation is markedly different. Here there was an emergency situation which Camara explicitly exempted from its warrant requirement. Unlike Camara, there was a “compelling urgency [for Lynch] to inspect at a particular time [and] on a particular day.” The need to investigate promptly for the cause of the fire is very much interrelated with the necessity of suppressing the blaze. The rationale for dispensing with a warrant in such situations has been cogently summarized by the Fifth Circuit in United States v. Green:

“Unlike the area inspection, which does not focus on a particular premises and is conducted without reference to knowledge of a fire hazard at a given location, the investigation of an actual fire is logically and factually inseparable from the fireman’s job of suppressing the blaze. The ordinary fireman is not an expert in the cause of fires. He cannot determine, after he douses the blaze, whether the danger is past or merely hidden, awaiting only a fresh supply of oxygen to set it off again with perhaps disastrous results.
“Á fire might have been caused by any of a myriad of conditions that would not be terminated by simply putting out the flame — e. g., a faulty appliance, defective or worn out electrial wiring, or careless storage of flammable materials. Where the existence of a gravely dangerous condition has already manifested itself in one fire, it would be the height of folly for the firemen to enter, suppress the flames, and leave the premises without assurance that they would not be required to return, perhaps within minutes, to do it all again.
“Critical to the Supreme Court’s imposition of the warrant requirement in Camara and in See was the recognition that there is nothing in the nature of a routine area inspection that requires immediate entry into a particular structure in the area at a specific time. There is, however, such a necessity in the case of a fire. Until someone expert in the cause of fires arrives, inspects the scene, and determines that the fire has been completely extinguished, the firemen cannot reasonably depart. The imposition of a warrant requirement in such circumstances would immobilize the entire apparatus of fire protection. The absurdity of requiring the fire investigator to secure a warrant in order to search for the fire’s cause is self evident.”

We fully agree, and thus conclude that Lynch’s warrantless investigation during and immediately following the suppression of the fire was reasonable and justified by exigent circumstances.

Appellant nonetheless argues that Sgt. Bramble and the other police officers were required to obtain a warrant prior to seizing and removing the containers and other items discovered by Lynch and the other firemen. We do not agree. The purpose of the warrant requirement is to insure prior judicial authorization of intrusions into areas in which a person has a reasonable expectation of privacy. When Lynch proceeded to investigate the cause of the fire he was clothed with a law enforcement function similar to police, and correspondingly, his actions were subjected to the restraints of the fourth amendment. But having determined that Lynch’s warrantless discovery of evidence of arson was justified and valid under the fourth amendment, we think no greater invasion of privacy resulted when officers from another law enforcement agency (Bramble and the other policemen) subsequently entered and removed the evidence. To require the police in such a situation to first obtain a warrant would be senseless, since it would further no recognizable fourth amendment interest. Appellant no longer had any reasonable expectation of privacy in the items discovered by Lynch during his investigation.

FAILURE TO GIVE MIRANDA WARNINGS

The question of when police are required to give Miranda warnings has been the source of much litigation and, as this Court has noted, must be approached on a case-by-case basis. Miranda created a presumption of coercion whenever a defendant’s statement is obtained through interrogation initiated by police after the defendant “has been taken into custody or otherwise deprived of his freedom in any significant way.” This presumption of coercion is rebut-table by a showing that the defendant was given Miranda warnings and then waived his right to remain silent. Since appellant was not given Miranda warnings prior to each of the four “interrogations” in question, the statements made by appellant on these occasions are inadmissible as evidence if they were the product of !‘eustodial interrogation.”

This Court and other circuits have held that Miranda abandoned the “focus” theory in favor of the more objective test of whether the “government has in some meaningful way imposed restraint on [a person’s] freedom of action.” In the absence of such restraint there simply does not exist the inherent pressures which Miranda warnings were intended to neutralize.

Applying this test of whether there has been significant restraint on freedom of action, the Supreme Court, in Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), erased any doubt that custodial interrogation may occur outside the police station. Equally beyond doubt is that custodial interrogation does not necessarily ensue merely because police questioning occurred at a police station. (At least two of the police interviews at issue here took place in a police station.) We emphasize, however, that all “station-house” interrogations should be scrutinized with extreme care for any taint of psychological compulsion or intimidation because such pressure is most apt to exist while a defendant is interviewed at a police station.

We recognize, of course, what this Court has perceived before: that “[a]n exact definition for ‘custodial interrogation’ is, by its nature, an impossibility.” The Second Circuit, though, has perceptively analyzed the factors which must be considered in determining whether there has been a custodial interrogation:

“Clearly the [Supreme] Court meant that something more than official interrogation must be shown. It is hard to suppose that suspicion alone was thought to constitute that something; almost all official interrogation of persons who later become criminal defendants stems from that very source. While the Court’s language in Miranda was imprecise, doubtless deliberately so, it conveys a flavor of some affirmative action by the authorities other than police interrogation. This view is strengthened by the passage at 384 U.S. 478, 86 S.Ct. 1630, where the Chief Justice, after referring to ‘the compelling atmosphere inherent in the process of in-custody interrogation’ and just before a second and slightly altered affirmation of the test, inserted a footnote reading:
<46 The distinction and its significance has been aptly described in the opinion of a Scottish court:
‘In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice [of interrogation at the police station] may be, it must normally create a situation very unfavourable to the suspect.’ Chalmers v. H. M. Advocate [1954], Sess.Cas. 66, 78 (J. C.).
“Even without the light of Orozco we would not have thought this to mean that questioning in the home could never come within the mandate of Miranda; we do think it suggests that in the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. This is not to say that the amount of information possessed by the police, and the consequent acuity of their ‘focus,’ is irrelevant. The more cause for believing the suspect committed the crime, the greater the tendency to bear down in interrogation and to create the kind of atmosphere of significant restraint that triggers' Miranda, and vice versa. But this is simply one circumstance, to be weighed with all the others.”*

With these principles in mind, we have reviewed the record and, after considering appellant’s contentions, conclude that the district court committed no error in holding that none of the four interviews in question involved a custodial interrogation. The district court, after thorough consideration of all the facts, found as follows:

“(1) There was a complete absence of restraint of petitioner’s liberty ; for instance, on October 24th, Bramble spoke with him briefly at his (petitioner’s) office;

“(2) The interrogations were routine and courteous in character;

“(3) There is no evidence that the investigation had ‘focused’ on petitioner. The evidence that police were quietly ‘shadowing’ the petitioner’s family against the possibility of harm at the funeral is significant in that respect. Moreover, other suspects and persons were being interviewed and the physical evidence had not been returned by the F.B.I. ■ Thus, the progress of the investigation was not in any final stage;

“(4) Petitioner was a young and intelligent man, a college graduate and not to be easily cowed or intimidated by police presence;

“(5) The times of the interrogations seemed to be reasonable, subject to petitioner’s convenience and not unduly prolonged.” 360 F.Supp. at 1291.

In these circumstances, Miranda warnings were not required.

Lastly, appellant argues that his conviction was based, at least in part, on perjured police testimony which renders his conviction void. We find no merit in this contention. The district court did not err in finding that appellant had failed to show that perjury had been committed and hence, that he had been deprived of due process.

The order of the district court of July 3, 1973, will be affirmed.

      . E. g., Coolidge v. New Hampshire, 403 U.S. 443, 470-471, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Camara v. Municipal Court, 387 U. S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

      . E. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Cf. Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971). Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

      . See Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971).

      . See Camara v. Municipal Court, 387 U.S. at 539, 87 S.Ct. 1727, citing North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 83 L.Ed. 195 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (compulsory smallpox vaccination). Compagnie Francaise v. Board of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 1209 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of Tubercular cattle).

      . Appellant has quite properly not challenged on this appeal the finding of the district court that nothing significant was removed by the police other than what had already been noticed by the various firemen and Lynch. 360 F.Supp. at 1295. A container found by the police in a neighbor’s yard was admitted into evidence, but appellant has no standing to raise a fourth amendment claim with respect to that item. See e. g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Although it is not entirely clear from the record, the police may have seized three items which had not been previously noticed by the firemen or Lynch. Even assuming arguendo that these items — a container in the garage, a screen through which Mrs. Steigler escaped and four burnt matches — were impermissibly seized without a warrant, their admission into evidence, as implicitly suggested by the district court, was clearly harmless beyond a reasonable doubt.

      . The Delaware Fire Marshal Statute, Del. Code § 6607, provides inter alia,

      “(a) The State Fire Marshal, or his Deputy or Deputies, shall enforce all laws and ordinances of the State and the several counties, cities, and political subdivisions thereof having to do with :
      “(5) The suppression of arson.
      The State Fire Marshal, or his Deputy or Deputies, may at any time investigate as to the origin or circumstances of any fire or explosion occurring in the State, and may at all reasonable hours enter any building or premises within his jurisdiction for the purpose of making an inspection or investigation, which, under the provisions of this chapter, he may deem necessary to be made.”

      . See United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973) and eases cited therein.

      . Camara v. Municipal Court, 387 U.S. at 539, 87 S.Ct. 1727.

      . 387 U.S. at 539, 87 S.Ct. at 1736.

      . 474 F.2d at 1388-1389. Accord, United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973).

      . Additionally, much of the evidence was highly flammable (e. g., containers filled with gasoline and rugs soaked with gasoline) ren-' dering it imperative that they be seized and removed. Cf. United States v. Rubin, 474 F.2d 262 (3d Cir. 1973).

      . Appellant raises a question as to the constitutionality of the Delaware Fire Marshal Statute. Note 7 supra. In essence, though, his contention is that the statute cannot be constitutionally valid if it authorized Lynch to conduct a warrantless investigation in violation of the fourth amendment. Since we hold that Lynch’s action did not violate the fourth amendment, appellant’s contention as to the constitutionality of the fire marshal statute must likewise fall.

      . See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

      . The Delaware Fire Marshall statute provides that “the State Fire Marshall, or his Deputy . . . shall enforce all laws and ordinances of the State . . . having to do with . . . [t]he suppression of arson.” See note 7 supra.

      . Accord United States v. Green, 474 F.2d 1385 (5th Cir. 1973); Cf. United States v. Birrell, 470 F.2d 113 (2nd Cir. 1972).

      . Cf. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

      . See United States v. Clark, 425 F.2d 827 (3d Cir. 1970).

      . Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612.

      . See United States v. Fioravanti, 412 F.2d 407, 413 (3d Cir. 1969).

      . These interviews occurred at various places: a neighbor’s home, appellant’s cellar, appellant’s office and the police station.

      . See Escobedo v. Illinois, 378 U.S. 478, 490-492, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

      . United States v. Jaskiewicz, 433 F.2d 415, 419 (3d Cir. 1970). See e. g., United States v. Schmidt, 471 F.2d 385 (3d Cir. 1972); United States v. Clark, 425 F.2d 827 (3d Cir. 1970); United States v. Hall, 421 F.2d 540 (2d Cir. 1969); Virgin Islands v. Berne, 412 F.2d 1055 (3d Cir. 1969); Freije v. United States, 408 F.2d 100 (1st Cir. 1969).

      . See generally Kamisar, “Custodial Interrogation” Within the Meaning of Miranda, Criminal Law and the Constitution 335-383 (1968).

      . Orozco involved a custodial interrogation in petitioner’s home. The Court relied on the fact that the police had conceded that “from the moment he [Orozco] gave his name . . . petitioner was not free to go where he pleased but was ‘under arrest’ ” 394 U.S. at 325, 89 S.Ct. at 1096. Compare Virgin Islands v. Berne, 412 F.2d 1055 (3d Cir. I960) (noncustodial interrogation at appellant’s home).

      . See, e. g., United States v. Schmidt, 471 F.2d 385, 387 (3d Cir. 1972); United States v. Tobin, 429 F.2d 1261 (8th Cir. 1970); United States v. Scully, 415 F.2d 680 (2d Cir. 1969); Freije v. United States, 408 F.2d 100 (1st Cir. 1969). Cf. United States v. Knight, 261 F.Supp. 843, 844 (E.D.Pa.1966).

      . United States v. Clark, 425 F.2d 827, 832 (3d Cir. 1970).

      . This view is also strengthened by the Supreme Court’s repeated characterizations of the cases before it in Miranda. In each an individual was “swept from [his] surroundings into police custody,” “thrust into an unfamiliar atmosphere,” held “incommunicado” in a “police-dominated atmosphere,” “surrounded by antagonistic forces” and “run through menacing police interrogation procedures.” Miranda v. Arizona, 384 U.S. 436, 445-446, 456-457, 461, 86 S.Ct. 1602, 1618, 16 L.Ed.2d 694 (1966).

      . United States v. Hall, 421 F.2d at 544-545. (Emphasis in original text).


author: MOORE, Circuit Judge:

text:
    SILVER CHRYSLER PLYMOUTH, INC., Plaintiff-Appellee, v. CHRYSLER MOTORS CORPORATION and Chrysler Realty Corporation, Defendants-Appellants. CHRYSLER MOTORS CORPORATION and Chrysler Realty Corporation, Petitioners, v. Honorable Jack B. WEINSTEIN, Judge of the United States District Court for the Eastern District of New York, Respondent.
    Motion Nos. 4, 10, Dockets 74-1104, 74-1095.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 15, 1974.
    Submitted to the Court En Banc April 16, 1974.
    Decided April 25, 1974.

      Kelley, Drye, Warren, Clark, Carr & Ellis, New York City, in opposition to the motion to dismiss the appeal and in support of the petition for a writ.
    Hammond & Schreiber, New York City, for the motion to dismiss the appeal and in opposition to the petition for a writ.
    Before KAUFMAN, Chief Judge, and MOORE, FRIENDLY, HAYS, ANDERSON, FEINBERG, MANSFIELD, MULLIGAN, OAKES and TIMBERS, Circuit Judges.
   MOORE, Circuit Judge:

This is a motion to dismiss an appeal from an order denying a motion to disqualify counsel. It originally came on to be heard before a panel consisting of the writer and Judges Friendly and Anderson. A member of the court then in regular active service having requested that the motion be considered en banc and all of the judges having voted in favor of such hearing, it has been so considered by all active judges and the members of the panel on the original briefs and record, without further oral argument.

The merits of the present controversy which relate solely to the appealability of Judge Weinstein’s order denying Chrysler’s motion to disqualify plaintiff’s counsel in an action entitled Silver Chrysler Plymouth, Inc. against Chrysler Motors Corporation and Chrysler Realty Corporation, 73 Civ. 853, are not before us [D.C., 370 F.Supp. 581].

A young law clerk, Dale A. Schreiber, employed after graduation from law school by Kelley Drye Warren Clark Carr & Ellis (Kelley Drye) apparently worked for almost three years in the litigation department of that firm. One of the principal clients of the firm is the Chrysler Corporation. Schreiber was engaged in certain litigation matters for Chrysler, petitioner-appellant in this case. Schreiber left Kelley Drye to join Alexander Hammond and together they formed the firm of Hammond & Schreiber. Hammond (and the firm of Hammond & Schreiber) is alleged to specialize in prosecuting automobile dealers’ claims against manufacturers, including Chrysler. The suit creating this controversy is a dealer suit against Chrysler in which Schreiber is representing the dealer. Chrysler’s attorneys seek to disqualify Schreiber from acting as the attorney and to dismiss the complaint because of such representation. Judge Weinstein denied Chrysler’s motion to disqualify.

The problem facing Chrysler’s attorneys is: how can an appeal, if there be one, be taken at this stage of the litigation?

For years this appealability problem has plagued both counsel and the courts. The procedures followed by Chrysler, as petitioner-appellant, on this phase of the ease, exemplify the current situation and uncertainty.

On August 27, 1973, Chrysler moved to disqualify and to enjoin plaintiff-dealer’s attorneys, Hammond & Schreiber, from further participation in the case. By order, November 26, 1973, Judge Weinstein denied the motion.

On December 11, 1973, Chrysler sought to have Judge Weinstein amend his order to include a Section 1292(b) statement that an immediate appeal might materially advance the termination of the litigation. This, by order of December 17, 1973, the Judge refused to do. Chrysler then filed its notice of direct appeal dated December 21,1973.

Chrysler then turned to this Court for permission to appeal pursuant to 28 U. S.C. § 1292(b) and Rule 5, Fed.R.A.P. This motion was denied on January 10, 1974. Chrysler previously (January 3, 1974) had sought to stay District Court proceedings until the appeal should be determined. On January 15, 1974, the motion was granted.

On January 9, 1974, plaintiff-respondent-appellee moved to dismiss Chrysler’s appeal and challenged the power of this Court to grant relief by way of mandamus. Apparently still uncertain as to how to reach this Court, Chrysler on January 23, 1974, filed its petition for an Extraordinary Writ pursuant to 28 U.S.C. § 1651 and Rule 21, Fed.R.A.P., directing Judge Weinstein to vacate his original order, to disqualify the law firm of Hammond & Sehreiber, and to dismiss the complaint.

Thus, procedural uncertainties subsequent to denial of the motion have produced (1) a notice of appeal; (2) a motion in the District Court to amend the order to include a § 1292(b) statement; (3) a motion to this Court for permission to appeal; and (4) a petition for an Extraordinary Writ — each except for the notice of appeal included the same repetitious statements of fact and law and each required time-consuming consideration by the courts.

By order of January 29, 1974, this Court joined the petition for a Writ and the motion to dismiss the appeal. The upshot of all these maneuverings is to bring before us the simplé question and the necessity of resolving the difficult answer: is the order denying disqualification appealable?

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), may be taken as the cornerstone. There in a case involving the appealability of the denial of a motion in a stockholders’ derivative action to require security for expenses, Mr. Justice Jackson with his background of long trial experience wrote:

[After final judgment] it will be too late effectively to review the present order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably.
*- * * * * *
This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The Court has long given this provision of the statute this practical rather than a technical construction. .

337 U.S. at 546-547.

Appeal from less than a final judgment was permitted.

Resolution of the problems attendant to any litigation usually calls for a “practical” rather than a “technical” approach if the desideratum of an equitable result is to be attained. However, we are not here writing on a clean slate.

This Circuit in 1956 in Harmar Drive-In Theatre v. Warner Bros. Pictures, 239 F.2d 555 (2d Cir. 1956), squarely faced the appealability question saying: “Before reaching the merits it is necessary to consider whether the order is appealable.” There, as here, supplemental briefs addressed to this question had been requested by the court and submitted. The court referred to four earlier (1954, 1955, 1956) cases in this Circuit involving motions to disqualify counsel. In Consolidated Theatres v. Warner Bros. Circuit Management Corp., 216 F.2d 920 (2d Cir. 1954), Judges Chase, Frank and Hincks affirmed on the merits an order granting disqualification. Appealability was not discussed. A year later Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures and Austin Theatre, Inc. v. Warner Bros. Pictures, 224 F.2d 824, cert. denied, 350 U.S. 932, 76 S.Ct. 300, 100 L.Ed. 814 were decided. (Then Chief) Judge Clark wrote the opinion affirming disqualification in Laskey Bros, as well as the denial of disqualification in Austin. Judge Chase concurred; Judge Ryan of the District Court dissented. Reference was made to the Fisher Studio case, argued but then undecided. Fisher Studio came before this Court in early 1956. (Then Chief) Judge Clark wrote the opinion affirming with minor modifications an order of disqualification, noting as to jurisdiction that “since these orders of disqualification are collateral to the main case * * * [the final order of disqualification is] also appropriately treated as a separate and collateral proceeding.” (p. 204). Late in 1956 Harmar was decided with the benefit of Cohen and the cases above mentioned. After considering the question Judge Swan wrote: “A majority of the court are of opinion that with respect to appealability no distinction exists between orders granting disqualification and those refusing to do so.” (p. 556). Thus, from Cohen in 1949 and until 1959, the law in this Circuit in favor of appealability of disqualification orders, granted or denied, rested on the solid foundation of Cohen, and appeared to have been definitely established.

However, in February 1959 an order denying disqualification came before a panel of (then Chief) Judge Clark, Circuit Judge Moore and District Court Judge Gibson (D.C.Vt.) in the case of Fleischer v. Phillips, 264 F.2d 515. (Then Chief) Judge Clark chose not to follow Cohen or his colleagues in Harmar or his own opinion in Laskey Bros. and rejected appealability. District Judge Gibson joined him. Judge Moore in his dissent after referring to Cohen and Harmar pointed out that “[T]he disqualification of the attorneys selected by the defendants is wholly collateral to the issues in that case” and that “consideration should also be given to the practical situation with which some future trial judge will be confronted in ruling on questions of admissible evidence.” (p. 519).

Four months later (June 1959) another order denying disqualification was appealed. Marco v. Dulles, 268 F.2d 192 (2d Cir. 1959). The appellant here relied on Judge Swan’s opinion in Harmar. Judge Swan apparently felt that Fleischer superseded his Harmar opinion and that the majority (Judge Hincks concurring) were “constrained to dismiss the appeal.” Judge Moore, still preserving the stare decisis approach, dissented, again referring to the law as expounded in Cohen and Hangar and issued a Cassandra-type warning that “the dismissal of this appeal will only accomplish all that both the Supreme Court and the recent legislation [28 U.S.C. § 1292(b), Sept. 1958] hoped to avoid, namely, repetition, duplication, delay and expense.” -(P. 194).

Over the years the composition of the Court has changed — and so have structures of large metropolitan law firms. Charges of conflict of interest and motions to disqualify will probably increase rather than abate. But equally the importance of resolving this issue at the outset also increases in greater ratio lest a costly and protracted trial be tainted on the merits by an issue collateral thereto.

Thus we find in 1973 an appeal from an order granting motions to disqualify an attorney, Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, Judge (now Chief Judge) Kaufman, writing for the panel which included Judges Anderson and Oakes, accepted the appeal and affirmed the District Court’s order, saying as to jurisdiction “We have jurisdiction to review an order disqualifying an attorney under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).” (p. 570, fn. 5). In the same footnote he showed his awareness of both Fleischer and Marco, supra.

Other circuits have approached the disqualification problem in various ways. In the Ninth Circuit after referring to Fleischer (as not following Harmar), Marco and Wilhelm, 312 F.2d 399 (1963) in this Circuit, the Court in Cord v. Smith, 338 F.2d 516 (1964), although holding the order not appealable, reached the same result by writ approach (28 U.S.C. § 1651) — even as Chrysler alternatively seeks to do here — and directed the lower court to set aside the order denying disqualification and directed disqualification, saying :

We think that we should exercise our discretion to so treat [as a petition for a writ] the matter in this case. Continued participation as an attorney, by one who is disqualified by conflict of interest from so doing, will bring about the very evil which the rule against his participation is designed to prevent, and a subsequent reversal based upon such participation cannot undo the damage that will have been done as a result of such participation. We therefore proceed to the merits.

338 F.2d at 521-522.

The court followed Cord in Chugach Elec. Ass’n v. United States, 370 F.2d 441 (9 Cir. 1966), employing the writ method to effect disqualification after denial thereof by the District Court.

In 1972 the Fourth Circuit in United States v. Hankish, 462 F.2d 316, declined to take jurisdiction via the writ procedure (the petition would have had to have been construed as an application for a writ) because it indicated that the order of disqualification might be held to be appealable under Cohen and our own decision in Harmar (reference is also made to Fleischer), saying: “If we should follow the decision in Harmar, the order in the instant case would be appealable under the rule in Cohen.” Unlike the present case, however, an appeal under 28 U.S.C. § 1291 had not been sought by the filing of a notice of appeal.

In Yablonski v. United Mine Workers of America, 142 U.S.App.D.C. 193, 454 F.2d 1036 (1971), the D.C. Circuit, dealing with the denial of a motion to disqualify counsel, said: “We think the order now challenged was appealable, * * (p. 1038). As to mandamus, the Court said: “It is clear that the ease may’ be sufficiently extraordinary for mandamus ‘where it [is] necessary to confine a lower court to the terms of an appellate tribunal’s mandate.’ ” (Footnote omitted). The Court adopted the reasoning of Cord, which is equally true here, namely, “Continued participation as an attorney, by one who is disqualified by conflict of interest from so doing, will bring about the very evil which the rule against his participation is designed to prevent, and a subsequent reversal based upon such participation cannot undo the damage that will have been done as a result of such participation.” Cord, supra, at 521-522.

In the Fifth Circuit, Judge Tuttle, writing for the Court in Uniweld Products, Inc. v. Union Carbide Corporation, 385 F.2d 992 (1967), held that an order denying disqualification was appealable, saying: “First, we conclude that this is an appealable order, in the light of the decision of this court in Tomlinson v. Florida Iron & Metal, Inc., 5th Cir. (1961), 291 F.2d 333.” (p. 994). Tomlinson had held that an order denying a disqualification motion was appealable under the Cohen principle.

In Greene v. The Singer Company (November 2, 1971, unreported, No. 71-1835), the Third Circuit held that an order denying a petition to disqualify one of the appellee’s lawyers was appealable under the Cohen rule. The court, believing that “The Second and Ninth Circuits have held the Cohen rule inapplicable.” (citing Fleischer, Marco and Wilhelm in the Second Circuit and Cord in the Ninth Circuit) chose to follow the Fifth Circuit’s 'Tomlinson approach authorizing an appeal, and said: “To require appellant to await a final judgment on the merits before testing the legality of the order denying the disqualification may, for practical purposes, deny it the reality of appellate processes. * * * Conversely, if the appeal goes forward now, prior to trial, the possibility of irreparable injury would be substantially lessened.”

Attempted appeals either by notice of appeal or by the writ approach in proceedings other than counsel disqualification are neither dispositive nor authoritative.

In American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277 (1967), the appeal was from a discovery order in a so-called “big case.” The order, unlike the order here, was within the mainstream of the litigation and not collateral thereto. (Then Chief) Judge Lumbard dissented and would have granted mandamus.

In Weight Watchers of Phila. v. Weight Watchers Int., 455 F.2d 770 (1972) , an order permitting the defendant to communicate with potential members of a class on whose behalf the plaintiff sought to maintain a class action, was held non-appealable by this Court, (then Chief) Judge Friendly writing the opinion, concurred in by Judges Moore and Oakes. As Judge Friendly pointed out (p. 773), “When we compare the order here sought to be appealed with others implicating Cohen, the inapplicability of that decision becomes clear.”

In International Business Machines Corp. v. United States, 480 F.2d 293 (1973) (en banc), this Court dismissed both appeal and the petition for mandamus. Judges Moore and Timbers dissented. The majority opinion held that the Expediting Act (15 U.S.C. § 29) deprived this Court of jurisdiction to hear the appeal and that § 1292(b) was of no avail since the District Court had not certified that a controlling question of law was involved. Moreover, IBM involved the production of documents in the case being prepared for trial. Production was not a separate or collateral issue as is disqualification here.

Thus, none of these three cases bears upon the issue now before us.

By way of summary, in this Circuit, subsequent to Cohen, in Consolidated Theatres, Laskey Bros. of W. Va., and Fisher Studio, supra, the respective panels all accepted the appeals. Harmar definitely held an order denying disqualification to be appealable. In 1959 (then Chief) Judge Clark and a District Court Judge, without referring the case to an en banc court, in effect, overruled Harmar.

This review would indicate that (then Chief) Judge Clark accepted a disqualification order appeal in Laskey Bros. but rejected an appeal from an order denying disqualification in Fleischer. Judge Swan in Harmar sustained the appealability of an order denying disqualification but felt “constrained” to decide otherwise in Marco. Judge Moore was consistent in sustaining the appealability of orders granting or denying disqualification. Now in 1974 we believe that Cohen requires a return to the wisdom of Harmar and so we uphold the appealability of an order denying disqualification, just as we have long upheld the appealability of an order grant-, ing this. There is no sufficient basis for distinguishing between the two. In both situations the order is collateral to the main proceeding yet has grave consequences to the losing party, and it is fatuous to suppose that review of the final judgment will provide adequate relief.

It would seem to be appropriate at this time to dispel the needless uncertainty as to the law and procedure relating to the appealability of disqualification orders. All three prerequisites of Cohen are met. Since this is so, there is no reason not to follow the mandate of the Supreme Court and adopt their decision, namely:

We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.

337 U.S. at 547.

By holding such an order directly appealable, we eliminate the uncertainties (and the paperwork) attendant to resorting to § 1292(b) and/or § 1651. Since the ultimate objective is to bring before an appellate court an important question which, if unresolved, might well taint a trial, why should not this question be presented before judicial and attorney time may have been needlessly expended ?

Fleischer and Marco, holding to the contrary, are overruled.

Motion to dismiss appeal denied.

In view of our decision denying the motion to dismiss the appeal, the petition for a writ becomes moot and is therefore dismissed.

      . Interlocutory Appeals Act, 28 U.S.C. § 1292, September 2, 1958, 72 Stat. 1770.

      . Fisher Studio v. Loew’s Inc., 232 F.2d 199.

      . In the same general category is Balter et al. v. United States Steel Corporation et al., 2 Cir., 492 F.2d 1074, decided February 25, 1974.