source: Caselaw Access Project

author: McGOWAN, Circuit Judge: MacKINNON, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America v. William H. JOYNER, Appellant. William H. JOYNER, Appellant, v. Kenneth C. HARDY, Director of Lorton Reformatory, et al.
    Nos. 73-1061, 72-1062.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 6, 1973.
    Decided Sept. 18, 1973.
    Patricia M. Wald, Washington, D. C., with whom Robert Golten, Julian Tepper, Washington, D. C., and W. Anthony Fitch, Williamsburg, Va. (all appointed by this court) were on the brief, for appellant.
    Thomas H. Queen, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Barry W. Levine, Asst. U. S. Attys., were on the brief, for appellee.
    Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.
   McGOWAN, Circuit Judge:

In 1967, appellant pled guilty to a charge of assault with a deadly weapon, 22 D.C.Code § 502. The District Court suspended imposition of the sentence and placed Joyner on probation for five years. Appellant was arrested in June, 1970, and charged with larceny from the mails, possession of stolen mail, and carrying a deadly weapon. As a result of these alleged violations of probation, a hearing on revocation of appellant’s probation was commenced in July, but that hearing was continued pending action by the grand jury. In September, 1970, the grand jury returned an indictment against appellant, and in the following January appellant received a document entitled “Important Notice From Your Bondsman” advising him to appear in court on January 13, 1971. The notice did not explain the purpose of the hearing, nor did appellant personally receive any notification from the Probation Office or the court.

Appellant’s appointed attorney was informed of the date and purpose of the hearing three or four days in advance, but he did not consult with the appellant until immediately before the beginning of the proceeding. Neither appellant nor counsel knew the nature of all of the alleged probation violations until the hearing, nor did either know the status of the indictment which had been returned in September.

At the hearing, the probation officer, in an unsworn statement, informed the court of the alleged probation violations, but presented no evidence. The charges included not only the arrest which had been the basis of the hearing in July, but also alleged a failure to report. to the Probation Office as required, a failure to support his dependents, a failure to notify the Probation Office of a change of address, and the submission of false reports. Appellant had been given notice at the time of the first hearing of the charge based on his arrest, but he had never been informed of the other alleged violations. He attempted to rebut some of the charges at the hearing, but he was not prepared to present evidence on his behalf.

The District Court revoked appellant’s probation and imposed a two to eight year sentence. While serving this term, appellant filed a petition for a writ of habeas corpus in the District Court. After a hearing at which appellant testified, the petition was denied and this appeal followed.

At oral argument this court inquired as to the existence of any rules to govern probation revocation proceedings. It appeared that none existed at that time, but the District Court has, since this appeal was taken under submission, promulgated a rule effective August 1, 1973. Rule 2-8 of the Rules of the United States District Court for the District of Columbia. In light of that development, this court need not pursue the matter of procedural requirements for revocation of probation; and we confine ourselves in this opinion to consideration of the precise circumstances under which appellant’s probation was revoked.

Although it is true that a probation revocation hearing has traditionally been characterized as “not one of formal procedure either with respect to notice or specification of charges or a trial upon charges,” a probationer is nonetheless entitled to “fair treatment.” That principal requires that the probationer be given advance notice of the hearing, be informed of the charges against him, and that he be given an opportunity to meet and answer the charges.

In this case appellant did not receive adequate notice of the purpose of the hearing or of the charges against him, nor does it appear that this was merely a procedural deficiency since he also had no actual notice of either. Since appellant was involved in the other criminal proceeding at the time, the document received from his bondsman was of ambiguous significance and cannot be said to have warned him that his probation might be revoked. In any event, appellant was completely without notice of most of the charges against him.

Until the day of the hearing, appellant’s attorney had not seen him since July. He was uninformed with respect to appellant’s employment situation, domestic status, living arrangements, and the status of the September indictment; and was therefore unprepared to defend appellant with respect to any of the charges against him. At the hearing counsel did not attempt to cross-examine the probation officer, nor did he make any argument on appellant’s behalf.

The revocation was based on a simple statement of all the charges made, without explanation of the circumstances out of which they arose, without presentation of evidence, and without specification by the court of which of the charges, if less than all, the court’s determination to revoke probation was based upon. In the closely related context of a parole revocation, this court has indicated that the Board’s evidence must be more than merely the indictment alone. Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653, 655 n.9 (1968). That principle seems particularly applicable in this case where appellant was given no notice of the charges. In that situation a full statement and explanation of the charges and the evidence on which they were based would have been necessary to give appellant any meaningful opportunity to respond.

These several factors combine to render appellant’s probation revocation hearing defective. Since appellant attempted to answer the charges against him, and in light of the subsequent dismissal of the indictment which had originally given rise to the request for revocation of probation, we cannot say that appellant was not prejudiced by these deficiencies in the proceeding. In a hearing conducted under the new District Court rule, the revocation of appellant’s probation might be reaffirmed or he might be able to demonstrate that he should now be released or that his probation should continue. On this record the outcome of such a hearing cannot be predicted. Accordingly, we reverse the denial of appellant’s petition and remand with instructions that appellant’s probation be reinstated pending further proceedings to determine an appropriate disposition of his case.

It is so ordered.

MacKINNON, Circuit Judge,

concurring in part and dissenting in part:

Appellant’s counsel was informed of the purpose of the hearing an ample time in advance. Thus since much of the claimed lack of fairness and due process here is traceable in part to the failure of appellant’s counsel to consult with his client until immediately before the proceedings, and since new procedural rules for probation revocations have been promulgated in the interim, I would merely order an immediate new hearing under the new rules without reinstating appellant’s probation. To this extent I concur in Judge McGowan’s opinion.

      . The indictment charged possession of stolen mail and carrying a dangerous weapon. Appellant did not receive a copy of the indictment until March 4, 1971, and testified that he did not realize until then that he had been indicted.

      . That indictment was subsequently dismissed in March, 1971, after a successful motion to suppress evidence unlawfully seized.

      . The Probation Office had briefly described the circumstances giving rise to the charges in a memorandum to the District Judge dated December 18, 1970, requesting that probation be revoked. However, appellant did not receive a copy of that memorandum.

      . He indicated that he had in fact reported to the Probation Office although his supervising officer had not been present at the time, that he had supported his dependents except while in custody, and that the address he had given the officer was correct.

      . The new rule is comprehensive in character and provides, among other things, that the probationer at the outset of his probation “shall be provided by the probation office with a written statement and an explanation of the conditions imposedand that, prior to a probation revocation hearing, the probationer “shall be provided by the probation office with written notice of all alleged violations,” (emphasis supplied) and of the right to counsel. At the probation revocation hearing itself, the probationer shall be afforded access to records regarding the alleged violation, representation by counsel, the right to subpoena and to present witnesses and documentary evidence in his own behalf, and the right to confront and cross-examine witnesses against him. The rule also provides that, before probation may be revoked, the court in contested cases shall make findings of fact, and shall find that the Government has established by a preponderance of evidence that the probationer has violated a condition of his probation.

      . Burns v. United States, 287 U.S. 216, 222, 53 S.Ct. 154, 77 L.Ed. 266 (1932) ; accord, Manning v. United States, 161 F.2d 827 (5th Cir.), cert, denied, 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374 (1947).

      . See American Bar Association, Project on Minimum Standards for Criminal Justice, Standards Relating to Probation, Approved Draft § 5.4 (1970) ; cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ; Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 243 (1963) (en banc), cert, denied sub nom. Thompson v. U. S. Board of Parole, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963) ; Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en banc).


author: PER CURIAM. BAZELON, Chief Judge,

text:
    UNITED STATES of America v. Reginald A. LEWIS, Appellant (two cases). UNITED STATES of America v. Charles LEE, Appellant. UNITED STATES of America v. Cleo GRAHAM, Jr., Appellant.
    Nos. 72-1719, 72-1720, 72-1745 and 72-1895.
    United States Court of Appeals, District of Columbia Circuit.
    Argued En Banc May 21, 1973.
    Decided Sept. 20, 1973.
    W. Anthony Fitch, Williamsburg, Va., with whom Stanley Herr, Washington, D. C., was on the motion for appellant in Nos. 72-1719 and 72-1720.
    Peter H. Wolf, Washington, D. C., was on the motion for appellants in Nos. 72-1745 and 72-1895.
    W. Gary Kohlman with whom Marilyn Cohen, Washington, D. C., was on the motion for Public Defender Service as amicus curiae.
    Richard L. Beizer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., was on the motion for appellee.
    Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.
   ORDER

PER CURIAM.

In these three pending criminal appeals, motions were made in this Court that there be included in the records on appeal such pre-sentence reports (Rule 32(c), Fed.R.Crim.P.) and evaluation reports provided for in the Youth Corrections Act (18 U.S.C. § 5010(e)) as were before the District Court for sentencing purposes in these three cases. No opposition was filed by the Government to any of the motions. When the motions came on for hearing pursuant to our sua sponte order for en banc consideration, the Government represented that its lack of opposition derived from the fact that the reports in question had in each instance been made unrestrictedly available by the District Court to trial counsel before sentence was passed; and that, under such circumstances, it saw no reason for denying them to appellate counsel for inclusion in the appellate record in connection with the challenges raised on appeal to the adult sentences imposed upon appellants.

In consideration of the foregoing, it is hereby

Ordered that the motions be granted; that the District Court, to the extent it has not already done so, make available to appellate counsel in these cases the reports in question; and that the Clerk be directed, when requested to do so, to make such reports part of the records upon which these appeals will be decided ; and it is

Further ordered that, to the extent that any of the trial judges in these cases shall so order, the reports shall be delivered to appellate counsel under seal for use by such counsel alone; and such reports shall be under seal if and when they are included in the appellate record.

BAZELON, Chief Judge,

concurring;

This court agreed to consider these motions en banc to decide whether, in Federal Youth Corrections Act cases, the section 5010(e) and the presentence reports should be formally included as part of the record on appeal. The court’s order today does not settle these questions, and provides no guidance for several cases that have been held pending our disposition here. Rather, in the preface of its order, the court suggests that it is granting appellants’ motions because “[n]o opposition was filed by the Government . . . ” I cannot join the court’s order because our power to include these reports in the appellate record derives, if at all, from the statute, and not from the consent of the U. S. Attorney.

I do believe, however, that under the Youth Corrections Act, as it has been explained in our en banc decisions in United States v. Coefield, 155 U.S.App. D.C. 205, 476 F.2d 1152 (1973), and United States v. Reed & Hoston, 155 U. S.App.D.C. 198, 476 F.2d 1145 (1973), appellants’ motions should be granted. Those cases establish that when a sentencing judge imposes an adult sentence on a youth aged 18-21, he must accompany his decision with a “statement of reasons,” unless he relies upon a section 5010(e) report, in which case “additional reasons need not be stated.” 476 F.2d at 1157. Once a judge justifies his imposition of an adult sentence — either by relying on a section 5010(e) report or by setting forth an independent statement of his reasons — appellate review is intended only to insure “the rationality of those factors in relation to the Congressional objectives.” 476 F.2d at 1150. Not to require disclosure of the section 5010(e) report in these circumstances would be to place blind faith in those who prepared it. In effect, we would be saying that once a report is made by the correction authorities, and followed by the sentencing judge, there could be no appellate review irrespective of the reasons or information contained in that report. Such a conclusion would fly directly in the face of Congressional intent as determined in Coefield and Reed & Hoston.

      . 18 U.S.C. §§ 5005 et seq. (1970).

      . Section 5010(e) of the Act allows the sentencing court to order a youth committed to an evaluation center for assistance in deciding which of the dispositions available under the Act the judge should choose.

      . Rule 32 (c) (2) of the Federal Rules of Criminal Procedure allows the sentencing court to order a presentence report in all criminal eases, not just Youth Act cases.

      . Since the presentence report by itself has never been offered as the sole justification for imposition of an adult sentence, we have never decided whether it, like the 5010(e) report, may totally replace a judge’s statement of reasons. To the extent the presen-tence report is offered as a justification for an adult sentence, it obviously should be treated in the same manner as is a 5010(e) report.


author: BAZELON, Chief Judge: MacKINNON, Circuit Judge:

text:
    OIL, CHEMICAL AND ATOMIC WORKERS, INTERNATIONAL UNION, AFL-CIO, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Shell Oil Company and its Divisions, Shell Chemical Company, and Shell Development Co., Intervenors.
    No. 72-1277.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 16, 1973.
    Decided Sept. 28, 1973.
    Jerry D. Anker, Washington, D. C., for petitioners.
    Elliott Moore, Atty., N. L. R. B., with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., at the time the brief was filed, was on the brief, for respondent.
    David M. Heilbron, San Francisco, Cal., with whom William W. Schwarzer, San Francisco, Cal., and Bernard Marcus, New Orleans, La., were on the brief, for intervenors.

      Before BAZELON, Chief Judge, TUTTLE, Senior Circuit Judge for the Fifth Circuit, and MacKINNON, Circuit Judge.

       Sitting by designation pursuant to 28 U. S.C. § 294(d).

   BAZELON, Chief Judge:

The Oil, Chemical and Atomic Workers petition for review of an order of the National Labor Relations Board adopting a Trial Examiner’s proposed opinion and order dismissing a complaint that charged Shell Oil Company with violations of Sections 8(a)(1) and (5) of the National Labor Relations Act. The complaint alleged that Shell unlawfully refused to meet and bargain at a single time and place with the OCAW representatives of 19 separate bargaining units over uniform proposals and counterproposals concerning several of Shell’s company-wide fringe benefit plans.

The facts are not in dispute, and the question presented by the petition is whether Shell’s refusal, in the circumstances of this ease, was an unfair labor practice. We hold that it was not and deny the petition.

About 6,000 of Shell’s 36,000 employees are represented by 19 locals of the OCAW. Another 4,000 are represented by about 60 bargaining units not affiliated with the OCAW. Over the years Shell has negotiated all collective bargaining units at a local level, and has never engaged in multi-unit or company-wide negotiations.

The five benefit plans at issue were initiated between 1938 and 1952, and apply to all employees, supervisors, and managers, without regard to union affiliation. The provisions of the plans are not written into the local collective bargaining agreements, and may be modified at any time. Shell has always submitted its proposed modifications to the locals unless excused by the applicable local agreement, and it has received proposals and counterproposals from the locals during collective bargaining negotiations.

With minor exceptions, however, the Trial Examiner found that “Shell has never responded in contract negotiations to union proposals for benefit changes by agreeing to accept any union proposal, in whole or in part.” All changes, he found, are centrally determined at Shell headquarters, and Shell follows a policy of uniformity in the implementation of such changes.

On the other hand, he found that the OCAW “has never made its failure to achieve results in local bargaining on benefits issues a subject for strike action,” despite the fact that “individual unit bargaining on the benefit plans has been ineffective.” He attributed this to the mutual benefits to Shell and its employees of a uniform plan, the difficulties of maintaining that uniformity through local bargaining, and, “possibly,” because the benefits “ranked in the top bracket of American industry and never gave rise to employee discontent.”

Following a Shell modification proposal in May of 1968, the OCAW’s Shell Council, which is composed of local representatives of the 19 OCAW Shell units, attempted to change this pattern. OCAW’s International President wrote Shell a letter in which he presented a uniform set of counterproposals on behalf of all 19 Shell units and requested that Shell meet with representatives of OCAW and its locals “at some reasonable time and single location for the purpose of collective bargaining in regard to the . . . plans.”

Shell rejected this request, stating that the company would continue its practice of negotiation over all changes with the local units, but would not participate in meetings on a multi-unit basis. The OCAW immediately filed this unfair labor practice complaint.

Discussions continued, and Shell added an offer to meet with any single unit and discuss moving the traditional bargaining place. Then, in its final statement at a meeting with OCAW representatives in May of 1970, Shell indicated that it was willing to meet at central locations in geographical areas where several bargaining units were located, but insisted that the bargaining remain on a single unit basis. The OCAW remained firm in its demand for multi-unit discussions.

Under section 8(a)(5) of the National Labor Relations Act, an employer is under an obligation to “bargain collectively with the representatives of his employees, subject to the provisions of section [9(a)].” “Collective bargaining” is defined by section 8(d) as:

the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . and the execution of a written contract incorporating any agreement reached if requested by either party.

The Board, supported by the courts, has held that any subject of negotiations that falls within the definition of collective. bargaining is a “mandatory” subject that either party can raise and insist that the other party agree to as a condition to reaching agreement. Any other subject, if not illegal, is Na.“voluntary” subject that may be discussed, but that neither party may demand as a condition to an agreement.

Under this framework, multi-unit bargaining has long been held a voluntary subject. Allowing a party to insist on bargaining on other than a unit basis, it has been thought, would interfere with another provision of the Act. Section 9(a), to which the duty to bargain in good faith is made subject, states:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.

Under section 9(b), the task of designating the “appropriate” unit “for the purposes of collective bargaining” belongs exclusively to the National Labor Relations Board. While it has been held that the parties may agree to consolidate units for purposes of collective bargaining, respect for the stability of industrial relations imported by the Board’s determinations has led to the rule that a party may not be forced to bargain on other than a unit basis.

The OCAW seeks to compel multi-unit bargaining despite this well established rule. To do so, it presents two novel legal theories, which we discuss in turn.

First, it focuses on the local negotiations and asserts that Shell’s conduct concerning multi-unit sessions is a violation of its duty to bargain in good faith about the fringe benefit plans. The premise of this argument is that there can be no such thing as good faith collective bargaining in the local units found appropriate by the Board in the particular circumstances of this case. Thus, the OCAW contends, Shell is obligated to engage in combined discussions concerning the fringe benefit plans.

To distinguish the cases that affirmatively approve an employer’s insistence on local units, the OCAW asserts that section 9’s unit certification requirements are directed only at ensuring that bargaining representatives are chosen to serve as exclusive representatives of stable and “appropriate” units. So long as those units are retained, says the union, no policy of the Act prohibits joint participation in bargaining sessions. Although it concedes that merger of units for all bargaining purposes might constitute a merger and destruction of the Board-determined units, the OCAW asserts that discussions on limited issues in which there is no demand that the employer agree with all units or none is not such a violation of the purpose of section 9.

OCAW does not appear to press this argument, and for good reason. The Trial Examiner found, with support in the record, that the 0 CAW’s demand had been presented to Shell as a complete merger of the local units for purposes of the fringe benefits' negotiations. OCAW had, he said, in effect demanded that Shell bargain with a single representative and reach a single uniform agreement. Shell was thus free to reject the proposal despite the claimed impact on fringe benefits negotiations.

We need not reach this issue, however. Even if the OCAW’s interpretation of the statutory scheme is assumed to be correct, and its version of the meaning of its demand accepted, there is no basis for finding that Shell violated section 8(a)(5).

Section 8(a)(5) is not limited to direct refusals to negotiate in good faith. As the Supreme Court said in N. L. R. B. v. Katz, the Board is authorized by this section “to order the cessation of behavior which is in effect a refusal to negotiate, or which directly obstructs or inhibits the actual process of discussion, or which reflects a cast of mind against reaching agreement.”

But the Trial Examiner found, with ample support in the record, that OCAW had failed “to generate any pressure in support of its bargaining demands,” and that it never filed an unfair labor practice charge claiming that the “ineffective” bargaining was attributable to Shell’s failure to bargain in good faith It takes more than the bare showing that bargaining has been ineffective to charge one of the negotiating parties with an unfair labor practice.

We are cognizant of the fact that the OCAW may not want local bargaining because it fears that Shell would respond by dropping the company-wide benefits program and whatever economic advantages the union derives from the uniform plan. But, here too, the OCAW is in no position to say that Shell is in violation of the Act, for the Company has no obligation to structure its bargaining so as to preserve that benefits program.

If the OCAW wishes to obtain effective bargaining on the company-wide programs, it has many ways to proceed. If it wishes to bring the scope of collective bargaining negotiations within the group of section 8(d) mandatory subjects of bargaining, and thus short-circuit the more cumbersome methods of attempting to amass bargaining power available to it, the union may test its theory by demanding multi-unit bargaining on the benefits issue and thus subject itself to an unfair labor practice charge. But the OCAW is in no position to blame Shell for its own lack of initiative, and this record shows no more than that.

OCAW’s second argument is more ingenious, and avoids the deficiencies in this record, but it is not persuasive. Turning from section 8(d)’s requirement that the parties confer in good faith, the OCAW fixes on the section’s requirement that the parties “meet at reasonable times.” Under the guise of defining “reasonable,” the union would have us establish a rule that produces multi-unit bargaining on selected subjects. The parties, or the Board if necessary, should look to the nature of the issue in dispute, the extent of the interest of potential participants, and the extent to which bargaining on that point has been “meaningful,” and set a time and place for negotiations that would put the employer across a bargaining table from the proper group of local units.

We do not think that the phrase will support the weighty legal rule that OCAW attributes to it. As the Trial Examiner pointed out, the legislative history of the Act provides no hint of a congressional intent to turn the requirement that the parties “meet” into a mechanism for dictating what parties shall participate in negotiations on a particular subject of bargaining. The Board and the courts have applied this language only to eases in which the charged party has refused to negotiate with a single unit at any reasonable time and place. In the absence of some indication that Congress intended more than this plain meaning of its words, we cannot accept OCAW’s attempt to turn the phrase into a rule governing participation in multi-unit negotiations.

Petition denied.

TUTTLE, Senior Circuit Judge, concurs in the result.

MacKINNON, Circuit Judge:

I concur generally in the opinion but not in the dicta that suggests possible means of obtaining “effective” bargaining on company-wide programs.

      . 29 U.S.C. §§ 158(a) (1), (5) (1970).

      . Trial Examiner’s Findings of Fact, No. 2-CA-11628, Pt. III.B., ¶ 16 (August 6, 1971).

      . Id. ¶ 20.

      . Id. Pt. III.D., ¶ 10.

      . Id.

      . 29 U.S.C. § 158(a)(5) (1970).

      . 29 U.S.C. § 158(d) (1970).

      . See NLRB v. American Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952).

      . See NLRB v. Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958).

      . See, e.g., id.; NLRB v. IBEW, 266 F.2d 349 (5th Cir. 1959).

      . 29 U.S.C. § 159(a) (1970).

      . 29 U.S.C. § 159(b) (1970). See, e.g., NLRB v. Southern Calif. Dist. Council of Laborers, 443 F.2d 220 (9 Cir. 1971).

      . Cf. NLRB v. Dover Tavern Owners’ Ass’n, 412 F.2d 725 (3d Cir. 1969).

      . See, e. g., Douds v. Int’l Longshoremen’s Ass’n, 241 F.2d 278 (2d Cir. 1957) ; Publishers Ass’n v. NLRB, 364 F.2d 293 (2d Cir.), cert, denied, 385 U.S. 971, 87 S.Ct. 509, 17 L.Ed.2d 435 (1966) ; American Radiator & Standard Sanitary Corp. v. NLRB, 381 F.2d 632 (6 Cir. 1967).

      . Trial Examiner’s Findings of Fact, supra note 2, Pt. III.D., ¶ 6. He also pointed out:
      The Union in its brief substantially concedes that the 19 OCAW units could not be combined into a single unit that would be generally appropriate for the purposes of bargaining, because, as it states, they “are widely separated from each other geographically; they vary greatly in the type of product they produce or service they perform; there are significant differ-enees between them with respect to wages, hours, and working conditions; and to a large degree their labor relations are handled on a local basis.”

        Id. ¶ 9.

      . 369 U.S. 736, 747, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230, 238 (1962). See Caroline Farms Division of Textron, Inc. v. NLRB, 401 F.2d 205 (4th Cir. 1968).

      . Trial Examiner’s Finding of Fact, supra note 2, Pt. III.D., ¶ 10.

      . The Trial Examiner pointed out that the locals could bargain to an impasse, and that an unfair labor practice charge could be filed alleging that Shell had caused the “ineffective” bargaining. Id. ¶ 10. OCAW might, for instance, attempt to show that Shell had in effect disabled its bargaining representatives from altering positions at all. See NLRB v. General Electric Co., 418 F.2d 736 (2d Cir. 1969).
      Nothing prevents the OCAW’s Shell Council from coordinating the demands of the locals. Moreover, any OCAW local unit can designate representatives of the other 18 units to sit in as its bargaining representatives, and thus ensure full coordination. See, e.g., AFL-CIO Joint Negotiating Comm, of Phelps Dodge Corp. v. NLRB, 459 F.2d 374 (3d Cir. 1972), cert, denied, 409 U.S. 1059, 93 S.Ct. 553, 34 L.Ed.2d 511 (1972).
      But the entire issue may — at least in this case — be a teapot tempest. The Trial Examiner noted, in his final footnote:
      Bargaining by OCAW for all its units on a combined basis might, for reasons earlier stated, improve the conditions for more meaningful bargaining, but it would not eradicate the impediments to “effective” bargaining outlined above, for the OOAW would still be dealing with Shell as a representative of only 14 percent of the employees covered by the benefit plans.

      . See Trial Examiner’s Findings of Fact, supra note 2, n. 19.

      . See, e.g., Caroline Farms Division of Tex-tron, Inc. v. NLRB, 401 F.2d 205 (4th Cir. 1968) ; Mid-America Transportation Co. v. NLRB, 325 F.2d 87 (7th Cir. 1963) ; NLRB v. P. Lorillard Co., 117 F.2d 921 (6 Cir. 1941).


author: PER CURIAM: BAZELON, Chief Judge,

text:
    INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, INTERNATIONAL MARINE DIVISION, ILA, AFL-CIO and Union de Trabaja-dores de Muelles y Ramas Anexas, Local 1740, ILA-AFL-CIO, Petitioners v. NATIONAL LABOR RELATIONS BOARD, Respondent Marine & Marketing International Corporation, Intervenor
    No. 72-1595.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 22, 1973.
    Decided Oct. 4, 1973.
    Rehearing Denied Nov. 30, 1973.

      Burton M. Epstein, New York City, for petitioners. Seymour M. Waldman, New York City, and Julian H. Singman, Washington, D. C., were on the brief for petitioners.
    Joseph C. Thackery, Atty., N. L. R. B., with whom Marcel Mallet-Prevost, Asst. Gen. Counsel at the time the brief was filed, and John D. Burgoyne, Atty., N. L. R. B., were on the brief, for respondent.
    Alan A. Bruckner, Miami, Fla., entered an appearance for intervenor.
    Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
   PER CURIAM:

Until November 1970 the container vessel Floridian was operated by South American Caribbean Lines (SACAL) on runs between Miami, Florida and San Juan, Puerto Rico. The ship’s master and three mates were represented by petitioner International Organization of Masters, Mates and Pilots (MM&P). Engineering officers were represented by Marine Engineers Beneficial Association (MEBA) and unlicensed seamen by the Seafarers International Union (SIU). SACAL went bankrupt in November 1970 and the Floridian was decommissioned and put under Government supervision in Norfolk, Virginia. In March 1971 a new company, Marine & Marketing International Corporation (the company), was formed for the purpose of recommencing operations.

Instead of filling the Floridian’s crew through the same unions whose members had previously serviced the vessel, the company signed a prehire agreement with MEBA covering all licensed deck officers and engineers. The motive behind this change was apparently not any dissatisfaction with the performance of the former MM&P deck officers. Rather, the new arrangement was financially beneficial to the company as MEBA agreed to elimination of one engineering job and SIU, which continued as representative of the unlicensed seamen, agreed to elimination of three seaman’s jobs. This arrangement, combined with certain changes in the wage structure effected by the shift to MEBA, evidently saved the company about $100,000 per year.

Pursuant to the prehire agreement, a new master and three new mates, all MEBA members, were hired and reported at Norfolk to prepare the Floridian for its first sailing. While the vessel was still at Norfolk, a representative of MM&P contacted the company’s president, Eduardo Garcia, and asked when he was going to order officers for the vessel. Garcia thereupon informed the MM&P representative that the company already had made arrangements with MEBA for officers. The MM&P representative, according to Garcia, said the company was “making a big mistake” and, since MM&P was now affiliated with the International Longshoremen’s Association, there could be “some serious consequences.” Garcia later met with the president of MM&P, who said the officer jobs belonged to MM&P by tradition as MM&P officers had manned the Floridian since it was first constructed. The MM&P president also told Garcia that he would rather see the vessel laid up than be operated by MEBA.

Despite these threats, the Floridian set sail from Norfolk to Miami to take on cargo for its first voyage under new management. At the pier in Miami the former captain and two former mates, all members of MM&P, picketed the vessel. The picket signs indicated that MM&P was affiliated with the International Longshoremen’s Association (ILA), and members of a Miami local of ILA, not charged herein, observed the picket line and refused to load the ship. The company obtained a temporary restraining order in state court, the ship was loaded, and it set ¿ail for San Juan. When the ship arrived there the same officers who had picketed in Miami appeared again, carrying the same picket signs except that they were now written in Spanish. Members of petitioner Local 1740, Union de Trabajadores de Muelles y Ramas Anexas, ILA, on instructions from their union, refused to cross the picket line. The vessel remained unloaded for six weeks until an injunction stopped the picketing.

The Board found that MM&P and Local 1740 committed an unfair labor practice under Section 8(b)(1)(B) of the National Labor Relations Act, 29 U.S.C. § 158(b)(1)(B) (1970), which provides: “It shall be an unfair labor practice for a labor organization or its agents * * * to restrain or coerce * * * an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.” We decline petitioners’ invitation to set aside that finding.

I

It is conceded by all parties that MM&P’s actions come within the literal purview of the statutory language. The admitted purpose of the picketing was to pressure the company to break its contract with MEBA, fire the new MEBA master and mates, and rehire the former MM&P master and mates. The Board was obviously correct in concluding that the master and mates are representatives of the employer for the adjustment of grievances. Therefore, under the statutory language the picketing was intended to coerce the employer in the selection of his grievance adjusting representatives.

Petitioners argue, however, that when Congress enacted Section 14(a) of the Act, 29 U.S.C. § 164(a) (1970), and thereby deprived supervisors (including grievance adjusters ) of the protections of the Act, Congress intended to allow supervisors to resort to self-help to protect their interests, as they concededly did here. On this approach Section 8(b)(1)(B) would be inapplicable to the picketing here, provided petitioners are not a labor union protected by the Act and therefore subject to its restrictions. The legislative history may well be read as evidencing a congressional purpose to permit supervisors to resort to self-help. See, e. g., 1 Legislative History of the Labor Management Relations Act, 1947, 613 (1948); Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 1, 4-5 (1947). Section 8(b), by its terms, applies only to “a labor organization or its agents * * A union composed solely of supervisors is not a “labor organization” as that term is defined in the Act. See 29 U.S.C. § 152(5) (1970). It has no statutory “employees.” See 29 U.S.C. § 152(3). Such a union, therefore, cannot commit an unfair labor practice under any of the subsections of Section 8(b), including Section 8(b)(1)(B).

The main difficulty with MM&P’s position in the present case is that it admittedly is a “labor organization” under the Act. Indeed, our own court has recently held that, because MM&P has certain locals containing statutory “employees,” it constitutes a “labor organization” subject to the restrictions of Section 8(b). See Int. Org. of Masters, Mates & Pilots v. N.L.R.B., 122 U.S. App.D.C. 74, 80, 351 F.2d 771, 777 (1965).

Nor do we think it significant that in this particular instance MM&P’s efforts were directed on behalf of workers all of whom were supervisors. As Judge Friendly has said, it may be that exempting unions composed solely of supervisors from Section 8(b) was considered by Congress as a “quid pro quo” for having deprived them of the protections of the Act.

“But the legislative history is far from being so definite or persuasive as to justify our reading the Act, in a manner opposed to its plain language, so as to permit a union in which ‘employees participate’ to engage in acts branded as unfair labor practices by § 8(b) simply because the workers on whose behalf the union was acting are all supervisors.”

National Marine Engineers Beneficial Ass’n v. NLRB, 2 Cir., 274 F.2d 167, 173 (1960).

At first glance it might seem that this interpretation of the Act produces a rather arbitrary result, since the participation of “employees” in MM&P here has no real relevance to the facts of the present case. But under the Act this interpretation works in favor of MM&P as well as against it. Because it is a “labor organization” MM&P obtains certain statutory protections. For example, Section 8(a)(2), 29 U.S.C. § 158(a)(2), makes it an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it * * (Emphasis added.) Similarly, Section 8(a)(3), 29 U.S.C. § 158(a)(3), makes it an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * (Emphasis added.) MM&P would forfeit the protections of these provisions were it a union composed solely of supervisors and hence not a “labor organization.”

Therefore, even though we agree with the general proposition that Congress intended to permit supervisors to resort to self-help, a supervisors’ union cannot have it both ways. If it allows statutory “employees” to participate, it becomes a “labor organization” entitled to the protections given such organizations and subject to the restrictions imposed by Section 8(b) on such organizations. If it does not allow any “employees” to participate, it is freed of any responsibilities under Section 8(b) at the price of forfeiting the protections of Section 8(a).

II

Petitioners next contend that, even if they are subject to its restrictions, Section 8(b)(1)(B) was never intended to reach the picketing that took place here. They argue that Section 8(b)(1)(B), so far as it pertains to grievance adjusters, is concerned solely with attempts by a labor organization to change the person utilized by the employer to adjust the grievances of members of that same organization. For example, there would be an unfair labor practice under Section 8(b)(1)(B) here if SIU attempted to coerce the selection of the master and mates since the unlicensed seamen represented by SIU have their grievances adjusted by the master and mates.

We have examined the legislative history with care, and there is some evidence that Congress’ primary concern was with situations falling within petitioner’s interpretation of the Act. See 2 Legislative History, supra, at 1012, 1077. But we have found nothing showing that Congress intended not to reach conduct of the sort that took place in this case — conduct which all parties agree comes within the statute’s literal scope. If anything, Congress simply did not address itself to the specific problem that has arisen here, probably because it assumed that supervisors wanting to engage in this kind of picketing would avail themselves of the opportunity not to be classified as a “labor organization” and thus be free of all the restraints of Section 8(b).

While we are aware that labor legislation does not readily adapt itself to the “plain meaning” school of jurisprudence, see, e. g., National Woodwork Manufacturers Assn v. NLRB, 386 U.S. 612, 619, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), we believe several factors militate against judicially creating an exception that would immunize MM&P’s conduct here. First, petitioners concede in their brief that if the company’s desire to deal with MEBA rather than MM&P was based on a valid Section 8(b)(1) (B) interest, i. e., the company’s interest in the supervisory skills, qualifications or loyalties of the members of the respective unions, rather than upon financial considerations, then its decision to choose one union over the other should properly be free from coercion under the statute. This would mean that in each case where a labor organization such as MM&P or MEBA sought to put its men on a vessel presently staffed with officers of the other, the legality of their picketing would depend on the employer’s reasons for ultimately choosing one union rather than the other. We doubt that Congress intended any such post hoc inquiry into the employer’s motives where the union’s action is directly and inherently destructive of a right guaranteed in the statute —the right to be free from coercion in the selection of grievance adjusters. The coercive nature of MM&P’s picketing, especially in light of MM&P’s successful efforts to capitalize on its affiliation with ILA, precludes resting the legality of MM&P’s picketing on an open-ended inquiry into the company’s “real purpose” in choosing MEBA over MM&P. The company has an interest in being free from coercion from labor organizations in the selection of its grievance adjusters, no matter what its reasons for choosing one union over the other.

In addition, the exception urged upon us by petitioners might well create inequitable results with respect to ensuring that all unions interested in representing the master and mates had equal resort to self-help. Suppose, for example, that MM&P’s picketing had been successful at the outset, and that the company had fired the MEBA master and mates and rehired the former MM&P master and mates. One would expect that it would then be MEBA’s turn to resort to self-help and picket the vessel. But under petitioners’ interpretation of the statute MEBA might well be precluded from resorting to self-help. MEBA, which like MM&P is a “labor organization” subject to the restrictions of Section 8(b), already represents the engineers on the Floridian, and the Board might eónclude that the captain serves in some respects as a grievance adjuster for the engineers. MEBA’s picketing to regain the master’s position would then fall within Section 8(b)(1)(B)’s prohibitions, even under the interpretation put forth by MM&P, since MEBA would be seeking to change the person utilized by the employer to adjust the grievances of MEBA members. The inequities of this situation are obvious.

Given these factors, we think that in this area it is better to stick with the lines drawn by Congress rather than create case-by-case exceptions. Such exceptions, though conceived in an attempt to pursue congressional purposes, might well bring results which are unworkable or inequitable in practice. Congress gave MM&P the right to ignore Section 8(b) if it gives up the status of a “labor organization.” Given MM&P’s refusal to take advantage of that opportunity, there is little this court can or should do to limit the scope of Section 8(b) as applied to petitioners.

III

Finally, with respect to Local 1740, there was substantial evidence before the Board to support the conclusion that it engaged in joint, concerted action with MM&P, and that Local 1740 members did not simply honor a picket line at their place of work. At the time of the events herein, MM&P was in the process of merging with ILA. Not only was this affiliation spelled out in the picket signs carried by MM&P members, but an ILA agent had warned the company’s president that the local would support MM&P in the dispute, under direction from ILA’s New York headquarters.

Accordingly, the petition for enforcement is granted and the petition for review is denied.

So ordered.

BAZELON, Chief Judge,

dissenting:

The central issue in this case is whether Section 8(b)(1)(B) of the National Labor Relations Act prohibits supervisor-employers from engaging in peaceful picketing to protest an employer’s actions, when the protest is directed solely to the protection of the supervisors’ employment interests and in no way implicates the interests of the employer’s rank-and-file employees. The majority agrees with the NLRB that the Section does indeed extend to such a protest, so long as the supervisors — who are not, of course, statutory “employees” themselves 8 — are members of a union to which statutory employees belong. It holds that this is so even though none of the union’s members is a rank-and-file employee of the employer whose actions the supervisors protest. I cannot agree.

Section 8(b)(1)(B) provides that it is. “an unfair labor practice for a labor organization ... to restrain or coerce ... an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.” For the majority, the proper result in this case follows from the statutory language as a matter of simple logic: (1) Because some of its locals have statutory employees as members, the petitioner International Organization of Masters, Mates and Pilots (MM&P) is a “labor organization” within the meaning of the Act. (2) Supervisor-members of MM&P attempted, by peaceful picketing, to “coerce” an employer into substituting them for the master and mates hired under an agreement with another union. (3) The master and mates are representatives of the employer for the adjustment of grievances. The syllogism is complete. Since MM&P attempted to coerce an employer in his choice of grievance adjustment representatives, the Board was correct in deciding that MM&P had committed an unfair labor practice.

I do not fault the majority’s logic. But in defining the premises from which its logical exercise proceeds, the majority has, 1 think, allowed itself to be led into a cul de sac against which the Supreme Court has repeatedly warned: “It is a ‘familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.’ ” Moreover, the Court has said, this rule has particular force in the construction of labor legislation — legislation that is, “to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free eco-nomie life of the Nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests.”

In short, the proper scope of Section 8(b)(l)(B)’s prohibition cannot be deduced from the statutory language alone. Our reading of the language must be informed by Congress’ intent in enacting the prohibition, as fairly discerned from the relevant legislative materials. And our inquiry must attend to the place of the section in the complex of statutory provisions that concern the relationship between employers and supervisors.

The Taft-Hartley Act of 1947 excludes supervisors from the definition of the term “employee,” enabling employers to condition supervisors’ employment on nonmembership in unions and nonparti-cipation in union affairs. Nevertheless, the law does not ban supeiwisors from wholly supervisory unions or from unions including, or even dominated by, rank-and-file employees. On the contrary, Section 14(a) of the Act specifically provides that “[njothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization . . . . ”

But while preserving supervisors’ rights to become and remain union members, the Act denies to supervisors the protections it affords to rank-and-file employees. Supervisors may not resort to federal and state labor relations boards to compel employer recognition, good faith bargaining, and nondiscriminatory treatment. They are, instead, left “to seek redress in self-help” for their economic and organizational griev-anees:

The Taft-Hartley Act changes, while they do not outlaw foremen’s unions, leave both foremen and employers to their economic weapons — the foremen to strikes and picketing to compel recognition, the latter to discriminatory discharges, espionage and blacklists to combat efforts to organize.

The Board’s decision in this case restricts the power of supervisors to resort to self-help — a power that Congress intended them to retain — so long as they belong to a union containing statutory employees and so long as their positions involve collective bargaining or grievance adjustment functions. In effect, it places a tax on supervisors’ right to remain members of employee unions, a right that Section 14(a) specifically preserves.

I find nothing in the legislative history of Section 8(b)(1)(B) to support, or even favor, a conclusion that Congress intended it so to restrict supervisors’ rights. On the contrary, the legislative history makes clear that Congress was concerned with an entirely different problem. The Section was intended to prevent efforts by employee unions to coerce employers into choosing, as collective bargaining and grievance adjustment representatives, persons sympathetic to the union’s rank-and-file members, rather than persons loyal to the employer. Consistently with this purpose, the Board has extended the Section to include employee union attempts, by discipline or otherwise, to force its supervisor members to perform collective bargaining or grievance adjustment functions in a manner favorable to the union. Before this case, however, the Board has never attempted to apply Section 8(b)(1)(B) to a union that neither represented, nor aspired to represent, the employer’s rank-and-file employees. And the reason for this is clear: in such circumstances, the purpose that Congress intended the Section to achieve is simply not implicated.

I would hold that a supervisory union is not a “labor organization” within the ambit of Section 8(b)(1)(B) unless it represents the rank-and-file employees of the supervisors’ employer. I think this the only holding consistent with Congress’ intent in enacting the Section and with the proper place of the Section in Congress’ scheme for dealing with supervisor-employer relations. There is, however, another consideration that strongly militates in favor of this conclusion in this case. The Board has decided that the peaceful picketing in which MM&P’s members engaged constituted an unfair labor practice. But the Supreme Court has consistently said that, before ascribing to Congress a purpose to outlaw peaceful picketing, there must be “ ‘the clearest indication in the legislative history’ . . . that Congress intended to do so as regards the particular ends of the picketing under review.” This rule of construction, grounded as it is in First Amendment guarantees, precludes, I think, the wooden construction of Section 8(b) (1)(B) that the Board has adopted and the majority approves. The legislative history of the Section quite simply lacks any indication that it was intended to prohibit supervisors from peaceful picketing in protest of their employer’s actions, at least when their protest does not even arguably favor the interests of their employer’s rank-and-file employees.

Despite these considerations, the majority insists that the Act puts those supervisors who have collective bargaining or grievance adjustment functions to a choice. They may either join wholly supervisory unions, to which the prohibitions of the Act are inapplicable, or they must abide Section 8 restrictions on their efforts at self-help. As a practical matter, I doubt that this leaves supervisors or their unions with any real choice at all. In any casé I find it clear that no such choice was contemplated by Congress. At most, the purpose of the Act favors a more narrowly drawn, more rational rule: a union may engage in self-help to protect the employment interests of its supervisor-members so long as the union does not at the same time represent rank-and-file employees of the supervisors’ employer.

I grant that this rule would, as the majority points out, work some inequity, since unions that represent both supervisors and their subordinates would be restricted in their resort to self-help. In that circumstance, however, Congress’ purpose in enacting Section 8(b)(1)(B) is at least arguably involved. I do not understand how avoiding this lesser inequity justifies adopting a construction of the Section that leads to greater inequity — inequity that is, moreover, entirely unjustified by the interests Congress intended the Section to protect.

I would grant the petition for review, reverse the decision of the Board, and deny enforcement of the order. I respectfully dissent.

      . In fact, on March 31, 1971 MM&P and ILA announced that the Executive Board of ILA had decided to issue a charter of affiliation to MM&P. At the time of the trial examiner’s hearing herein a ratification ballot aimed at approval of the Executive Board’s resolution was - being processed but had not yet been completed.

      . “The term ‘supervisor’ means any individual having authority, in the interest of the employer, * * * to adjust [employee] grievances * * 29 U.S.C. § 152(11) (1970).

      . Nothing to the contrary is implied in Hanna Mining Co. v. District 2, Marine Engineers Beneficial Assn, 382 U.S. 181, 86 S.Ct. 327, 15 L.Ed.2d 254 (1965). There MEBA picketed a vessel, claiming that the employer unfairly refused to recognize the union as the bargaining representative of the vessel’s engineers. The Supreme Court held that state court jurisdiction to enjoin the picketing was not preempted by federal law as the conduct was not arguably prohibited by Section 8(b). While this may constitute an implicit holding that the picketing there did not violate § 8(b)(1)(B), an obvious difference distinguishes the Hanna picketing from that which took place in the instant case. In Hanna the picketing was not directed at having certain engineers fired and replaced, as was the case here, but rather at having MEBA recognized as the bargaining representative of then employed engineers, a majority of whom allegedly desired MEBA as their representative.

      . See National Marine Engineers Beneficial Assn v. NLRB, 2 Cir., 274 F.2d 167 (1960).

      . 29 U.S.C. § 158(b) (1) (B) (1970).

      . See 29 U.S.C. § 152(3) (1970).

      . See 29 U.S.C. § 152(5) (1970) ; Int’l. Org. of Masters, Mates & Pilots v. NLRB, 122 U.S.App.D.C. 74, 351 F.2d 771 (1965).

      . National Woodworkers Mfrs. Ass’n. v. NLRB, 386 U.S. 612, 619, 87 S.Ct. 1250, 1255, 18 L.Ed.2d 357 (1967), quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 36 L.Ed. 226 (1892).

      . Local 1976, United Brotherhood of Carpenters v. Labor Board, 357 U.S. 93, 99-100, 78 S.Ct. 1011, 1016, 2 L.Ed.2d 1186 (1958) ; see National Woodworkers Mfrs. Ass’n. v. NLRB, supra, 386 U.S., at 619, 87 S.Ct. 1250.

      . See NLRB v. Allis Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).

      . Labor Management Relations Act §§ 1 et seq., 29 U.S.C. §§ 141-187 (1970), amending 49 Stat. 449 (1935).

      . 29 U.S.C. § 164(a) (1970).

      . See Comment, The Role of Supervisors in Employee Unions, 40 U.Chi.L.Rev. 184, 187 (1972).

      . 1 Legislative History of the Labor Management Relations Act of 1947 at 613 (1947).

      . Cox, The Labor-Management Relations Act, 61 Harv.L.Rev. 1, 5 (1947) ; see Smith, The Taft-Hartley Act and State Jurisdiction Over Labor Relations, 46 Mich.L.Rev. 593, 600 (1948).

      . See, e. g., 93 Cong.Rec. 3953 (1947), 1 Legislative History, supra note 7, at 1012 (remarks of Senator Taft). For a full discussion of the legislative history of the Section and its proper construction, see this court’s recent en banc decision in International Brotherhood of Electrical Workers v. NLRB, 159 U.S.App.D.C. -, at---, 487 F.2d 1143, at 1152-1159 (1973).

      . E. g., San Francisco-Oakland-Mailers’ Union No. 18, 172 NLRB No. 252 (1968).

      . NLRB v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58, 62-63, 84 S.Ct. 1063, 1066, 12 L.Ed.2d 129 (1964), quoting NLRB v. Drivers Local Union, 362 U.S. 274, 284, 80 S.Ct. 706, 4 L.Ed.2d 710 (1961). (Emphasis added).

      . Id.

      . The majority contends that, in return for accepting Section 8(b)’s restrictions, supervisory unions containing statutory employees receive certain protections under Section 8(a). But the quid is by no means equal to the quo. For example, a supervisor who becomes a member of a union containing statutory employees might be discharged by his employer and replaced. Since the supervisor is not himself a statutory employee, he would not be able to get redress from the Board on the ground that he had been dis-eriminatorily dismissed in violation of Section 8(a)(3). Yet, under the majority’s construction of 8(b)(1)(B), any attempt by the union or the supervisor himself to protest his dismissal would constitute an unfair labor practice. Thus, while the supervisors’ union may receive certain statutory protections as a labor organization, the supervisors themselves do not.


author: TAMM, Circuit Judge:

text:
    MONTECATINI EDISON, S.P.A. (a corporation of Italy) Appellee, v. Karl ZIEGLER, Appellant, and E. I. Dupont de Nemours and Company (a corporation of Delaware).
    No. 72-1281.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 5, 1973.
    Decided Oct. 5, 1973.

      Arnold Sprung, Nathaniel D. Kramer, New York City, with whom James N. Dresser, Washington, D. C., was on the brief, for appellant.
    Ralph M. Watson, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court with whom A. Donald Messenhei-mer, Washington, D. C., was on the brief, for appellee.
    Before McGOWAN and TAMM, Circuit Judges, and JAMESON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   TAMM, Circuit Judge:

This is an appeal from a final order of the United States District Court for the District of Columbia dismissing appellant Ziegler’s counterclaim.

Both parties have filed applications for patents claiming a certain process for homopolymerizing propylene. Two other parties have also filed applications claiming the same process. In order to resolve this conflict, the Patent Office instituted Interference No. 90,833, a proceeding to determine the question of priority of invention. On September 15, 1969, almost ten years after the interference was declared, the Patent Office Board of Patent Interferences awarded priority of invention to Ziegler. The Montecatini Edison Company (hereafter, “Montecatini”) then commenced this action under 35 U.S.C. § 146 (1970), which authorizes any party to an interference who is dissatisfied with the Board’s award to proceed by civil action to obtain an adjudication of his right to a patent. Ziegler filed an answer requesting dismissal of the complaint as well as a declaration that his assignors were the prior inventors. In addition, the answer interposed a counterclaim which asserts that Ziegler is the rightful owner of “all property rights of, and sums and royalties received by plaintiff, Montecatini, in the United States in the olefin polymerization field.” The counterclaim alleges that Montecatini, surreptitiously and in violation of a relationship of trust and confidence between Ziegler and Monteca-tini, misappropriated certain inventions of Ziegler, and used them to “develop a patent position” in the United States in the field of olefin polymerization. According to the uncontradicted assertions of Montecatini both at oral argument of the motion to dismiss the counterclaim in the district court and in its brief on appeal, Montecatini’s “patent position” in the field now includes eighty-five United States patents. The court is asked to impress a trust in favor of Ziegler upon all property rights of Montecatini in this field and to appoint a receiver pendente lite.

Montecatini moved dismissal of the counterclaim pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on the ground that the district court lacks subject matter jurisdiction of the counterclaim. The district court agreed and entered an order dismissing the counterclaim. The order was made final under Rule 54(b) of the Federal Rules of Civil Procedure and Ziegler took this appeal. We reverse.

Montecatini makes two contentions in support of the dismissal: first, that permissive non-Federal counterclaims such as Ziegler’s are not cognizable in section 146 proceedings; second, that, even if such counterclaims may be entertained in section 146 actions, the district court lacks subject matter jurisdiction of the Ziegler counterclaim. The first contention takes various forms in the Monteca-tini brief and appears to be the rule of decision adopted by the trial court, as reflected in the following excerpt from its memorandum opinion:

The first and foremost consideration is the nature of the proceeding under 35 U.S.C. § 146. A party dissatisfied with the decision of the Board of Patent Interference on a question of priority of intervention between conflicting patent applications may pursue a civil action against the other parties to the interference proceeding. This action is not a standard civil action. It is more in the nature of a review of an administrative proceeding with inherent limitations on the issues which may be raised in the original claim or by counterclaim.
In addition, counterclaims which are not compulsory are generally not allowed in actions arising under special statutory provisions.

Montecatini Edison, S.P.A. v. Ziegler, Civil Action No. 3291/69 (D.D.C., filed January 25, 1972). We believe that the district court erred in holding that permissive counterclaims may not be entertained in section 146 actions. This is a novel and complex question, however, and we would be remiss if we did not discuss the authorities relied upon by the appellee and the district court. Following that discussion we shall take up the question of subject matter jurisdiction over the Ziegler counterclaim.

I.

At the outset it must be pointed out that Montecatini’s position (i. e., that permissive, non-Federal counterclaims may not be asserted in section 146 actions) is in derogation of both the express provisions and the underlying policies of the Federal Rules of Civil Procedure. Rule 13 provides that a pleading may state any permissive counterclaim and must state any compulsory counterclaim. The word “may” is not intended to confer any discretion upon the court with respect to a permissive counterclaim; rather, it gives the litigant a choice either to assert or not to assert a permissive counterclaim. If he elects to plead it, the court must entertain it so long as it is within the court’s subject matter jurisdiction. Switzer Brothers, Inc. v. Locklin, 207 F.2d 483, 488 (7th Cir. 1953), cert, denied, 347 U. S. 912, 74 S.Ct. 477, 98 L.Ed. 1069 (1954); Michigan Tool Co., Inc. v. Drummond, 33 F. Supp. 540, 542 (D.D.C. 1938). In effect, Rule 13(b) confers upon a litigant the right to have his permissive counterclaim heard and determined along with the claims of his adversary. The objective of the Federal Rules with respect to counterclaims is to provide complete relief to the parties, to conserve judicial resources and to avoid the proliferation of lawsuits. Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 827 (2d Cir. 1963), cert, denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). Thus, Montecatini assumes a great burden in attempting to persuade this court that the usual rule as to permissive counterclaims should not apply in a section 146 proceeding. We conclude that the burden has not been carried.

Montecatini’s argument on this point is founded upon two asserted principles of law, each relying upon a separate line of cases: (A) the parties to a section 146 action may not raise new issues which were not presented before the Patent Office in the antecedent interference proceedings; (B) permissive counterclaims are generally not entertained in actions arising under special statutory provisions such as section 146.

A. The first part of Monteeatini’s argument correctly states a rule of law in section 146 proceedings, but it is a rule which has no application to a counterclaim such as the one at issue on this appeal. This is clear from the very authorities cited by the appellee. In Radio Corporation of America v. Philco Corp., 201 F.Supp. 135 (E.D.Pa. 1961), aff’d, 309 F.2d 397 (3d Cir. 1962), for example, it was held that a defendant in a section 146 action cannot litigate the issue of patentability (of his adversary’s application) in the district court after failing to properly raise the issue before the Patent Office. The rationale of this ruling was that the defendant had waived the defense since he did not take advantage of the opportunity to present it in the Patent Office:

An orderly policy of judicial administration dictates that a party in any adversary proceeding, including an interference, should not be permitted to circumvent initial stages in the prosecution of his cause by raising totally new issues at the review or appellate levels; otherwise a party might too easily ambush his opponent and, in this case, the Patent Office itself, after lengthy administrative proceedings. Courts should not be deprived of any assistance which might be gained from the expertise of the quasi-administrative agency, i. e., the Patent Office.
[Defendant] failed to raise this issue before the Primary Examiner, yet had adequate opportunity to do so.

Id. at 143. The same reasoning was adopted in Potter Instrument Co. v. Mohawk Data Sciences Corp., 309 F.Supp. 866, 867 (S.D.N.Y. 1969) and General Motors Corp. v. R. E. Dietz Co., 137 U.S.App.D.C. 100, 420 F.2d 1303, 1305-1306 (1969). In an analogous decision in a section 145 case, we have referred to this rule as a “phase of the doctrine of exhaustion of administrative remedies.” DeSeversky v. Brenner, 137 U.S. App.D.C. 369, 424 F.2d 857, 859 (1970).

While it is clear that these decisions enunciate a salutary principle of judicial administration, it is equally clear that this principle does not extend to the Ziegler counterclaim. The counterclaim pleads a common law cause of action sounding in tort and seeks various legal and equitable relief. Such a claim is obviously beyond the jurisdiction of a Patent Office tribunal. It was not presented before the Board of Patent Interferences because it could not be presented there. Under these circumstances, failure to assert the claim is not a waiver and Ziegler is not estopped from interposing his counterclaim in this action. Our conclusion on this point is reinforced by the fact that both joint claims and counterclaims have been entertained in the past in actions under section 146 and its predecessors where such claims could not have been decided by the Board of Patent Interferences and were not presented to it.

In this connection, one further issue remains to be resolved. It is argued that the patent law provides an exclusive remedy for Ziegler’s claims and that he should not be permitted to seek substitute relief in this action. This contention is only partially accurate. Montecatini correctly points out that Ziegler could have presented his claims to the Patent Office by filing a rival application within one year after any of the Montecatini patents was issued, thereby provoking an interference. This is not the only course of action available to a person in Ziegler’s position, however, and his failure to pursue it does not bar him from seeking judicial relief based upon a common law theory of action. In Friedman v. Washburn Co., 145 F.2d 715 (7th Cir. 1944), the plaintiff brought an action in diversity charging the defendant with misappropriation of a certain invention and sought to impress a trust upon the defendant’s patent and the proceeds thereof. The defendant objected that the complaint was, in essence, an attack on the validity of his patent, and that plaintiff’s sole remedy was to seek relief in an appropriate Patent Office proceeding. The court rejected the defendant’s argument:

We think there can be no doubt but that if, in fact, appellee did misappropriate an invention confidentially disclosed to it by appellant, the latter is entitled to relief [citations omitted], and that he is not confined to the procedure provided by the patent laws to obtain such relief.

Id. at 718. In concluding that its decision did no violence to the patent laws, the court relied upon the decision of the Supreme Court in Becher v. Contoure Laboratories, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752 (1929). In that case the respondent had recovered a state court judgment impressing a trust upon the petitioner’s patent on the ground that he had obtained it in breach of a confidential relationship with respondent. Petitioner then brought a separate action for infringement in the federal court requesting, among other things, that respondent be enjoined from enforcing the state court judgment. The petitioner’s complaint was dismissed and the Supreme Court affirmed. Speaking for the Court, Justice Holmes concluded that respondent had a valid claim for relief which was completely independent of the patent laws:

It is not denied that the jurisdiction of the Courts of the United States is exclusive in the case of suits arising under the patent laws, but it was held below that the suit in the State Court did not arise under those laws. It is plain that that suit had for its cause of action the breach of a contract or wrongful disregard of confidential relations, both matters independent of the patent law, and that the subject matter of [respondent’s] claim was an undisclosed invention which did not need a patent to protect it from disclosure by breach of trust.

Id. at 390-391, 49 S.Ct. at 357. Here, too, Ziegler’s claims rest on grounds independent of the patent law, and he is not foreclosed from asserting them by the mere fact that an alternative remedy is afforded by the patent law. It should be emphasized, however, that we are now speaking, not of alternatives which were available in the proceeding under review, but of alternatives which might have been pursued by the institution of some other, unrelated proceeding. As we have stated above, however, if there had been means available for Ziegler to have presented his claims to the Patent Office in the proceedings now under review, his failure to utilize them would have been a waiver and he would be stopped from prosecuting them in this action.

B. The second part of Montecatini’s argument consists of a discussion of a number of decisions in which the courts have declined to entertain counterclaims. Appellee concludes that these cases establish a general rule prohibiting permissive non-Federal counterclaims in proceedjngs under “special statutory provisions” such as section 146. None of the cases cited involves a section 146 proceeding, however, and none of them purports to state the general rule urged by Montecatini.

(i) Brotherhood of Railway Trainmen v. Denver & Rio Grande Western Railroad, Co., 31 F.R.D. 297 (D.C.Colo. 1962), cert, denied, 380 U.S. 972, 85 S. Ct. 1330, 14 L.Ed.2d 268 (1965), involved a proceeding to enforce an award of the Railroad Adjustment Board. The enforcement proceeding is commenced by a petition setting forth the award of the Board. Under provisions in force at the time of the Brotherhood decision, the order was “prima facie evidence” of the facts it recited. In Brotherhood, the court dismissed a counterclaim by the delinquent employer which sought damages for losses resulting from a strike called by the union. Although the reasoning of the court is not explicit, it appears to conclude that the statute contemplated a summary enforcement procedure which should not be encumbered with counterclaims. While there appears to be some disagreement with this holding, we do not express any views as to its correctness. Suffice it to say that a section 146 action is a horse of an entirely different color. Section 146 contemplates a trial de novo of the issue of priority of invention. It is in no sense an enforcement proceeding but a review proceeding. Furthermore, the issues presented in a section 146 action are rarely as urgent as a railway labor-management dispute which might disable an important facility of interstate commerce.

(ii) In Georgia Jewelers, Inc. v. Bulova Watch Co., 302 F.2d 362 (5th Cir. 1962), the court dismissed the bankrupt’s counterclaim against the petitioners which charged abuse of process and conspiracy to destroy its financial reputation. The case is particularly inapposite because bankruptcy proceedings are expressly excepted from the usual rules as to counterclaims. Fed.R.Civ.Proc., Rule 81(a)(1). Order 37 of the General Orders and Forms in Bankruptcy, 11 U. S.C. following § 1103, makes the Federal Rules applicable in proceedings under the Bankruptcy Act “in so far as they are not inconsistent with the Act.” In Georgia Jewelers, however, the court found that “[t]here is really no place for such a counterclaim in the statutory scheme” since the bankrupt’s counterclaim could not augment the estate or offset a- creditor’s claim. Id. at 369. Plainly, the reasoning of this decision cannot govern the present appeal.

(iii) United States ex rel. Rodriquez v. Weekly Publications, Inc., 74 F.Supp. 763 (S.D.N.Y. 1947), was a statutory gui tam action seeking to recover a penalty against the defendants for presenting fraudulent claims to the government. The court dismissed a counterclaim against the informer on the ground of public policy, stating that to permit such counterclaims would deter future informers’ actions. While we express no opinion as to the correctness of this decision, it is clear that the court based its ruling upon considerations which do not arise in section 146 actions.

(iv) In Donnelly Garment Co. v. ILG-WU, 47 F.Supp. 65 (W.D.Mo. 1942), an employer obtained an injunction against a union. After the injunction was ultimately vacated, the union presented a claim under section 7 of the Norris-La-Guardia Act for damages caused by wrongful issuance of the injunction. The union was not required to commence a separate action but proceeded in the same action (i. e. the employer’s injunction suit) to seek an assessment of damages against the plaintiff-employer and his surety. The employer attempted to interpose a counterclaim for damages based upon the same conduct as to which the injunction had been granted. The court refused to entertain the counterclaim, stating that the assessment of damages proceeding was “merely a last step” in the employer’s action, “in effect nothing more than an expansion of the proceeding looking to the taxation of costs.” In addition, the court concluded that the statute contemplated “a speedy and summary proceeding” and that Congress did not intend for other issues to be determined therein. Id. at 68-69. Again, we think that this decision involved a question quite different from that under discussion and cannot control our decision of this appeal.

(v) United States v. John A. Johnson & Sons, 65 F.Supp. 514 (D.Md. 1945), aff’d, 153 F.2d 534 (4th Cir.), cert, denied, 328 U.S. 865, 66 S.Ct. 1372, 90 L.Ed. 1636 (1946), was a suit on behalf of a supplier under section 1 of the Miller Act against a government contractor and his surety to recover the price of supplies which had been delivered to a sub-contractor. The general contractor impleaded the sub-contractor and the latter counterclaimed against both the general contractor and the supplier. The court stated that the sub-.eontractor’s claim did not arise under the Miller Act and dismissed the counterclaim. As a subsequent decision points out, the reason for the dismissal was not the “special statutory” nature of the Miller Act proceeding, as Montecatini contends, but the absence of subject matter jurisdiction over the counterclaim. United States v. Paul Tishman Co., 32 F.R.D. 223, 226 (E.D.N.Y. 1963).

In sum, none of these authorities is in point. Appellee has failed to establish any general prohibition against permissive counterclaims in special statutory proceedings. Furthermore, the only cited decision which has taken up the issue in an action under section 146 or its predecessors supports the position of the appellant Ziegler.

In Michigan Tool Co., Inc. v. Drum-mond, 33 F.Supp. 540 (D.D.C. 1938), plaintiff brought an action under the predecessor of section 146 to review a decision of the Examiner of Interferences awarding priority of invention to the defendant. Defendant counterclaimed for infringement. Upon plaintiff’s motion to dismiss the counterclaim, our district court ruled as follows:

The counterclaim under consideration is a permissive counterclaim within the meaning of Rule 13(b)
The court has jurisdiction to hear and determine the counterclaim and jurisdiction of the parties and, in view of the Federal Rules of Civil Procedure cited, there is no discretion to strike it. (Emphasis added.)

Id. at 542.

We think that the district court’s holding in Michigan Tool was required by the modern principles of civil procedure discussed at the beginning of this opinion. Judicial economy is best served by resolving as many disputes as possible in a single proceeding. Montecatini attempts to distinguish Michigan Tool on the ground that it involved a counterclaim arising under a federal statute (patent infringement) whereas Ziegler’s is a non-Federal claim. We do not see the significance of this distinction. The policy of judicial economy is equally compelling regardless of the basis for the court’s subject matter jurisdiction.

We hold, therefore, that a counterclaim, whether permissive or compulsory, may be asserted by a section 146 defendant to the same extent as in any other civil action governed by the Federal Rules, subject to the requirements of the doctrine of exhaustion of administrative remedies. We recognize, of course, that a counterclaim might unduly compound the labyrinthian complexity of some section 146 actions. This contingency is fully anticipated by Rule 42(b), however, which authorizes the court to order the separate trial of a counterclaim “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” See McFarlane v. Resinite Corp., 273 F.Supp. 224 (N.D. Ill. 1967); Michigan Tool Co., Inc. v. Drummond, 33 F.Supp. 540, 542 (D.D. C. 1938).

II.

Even though we find that there is no prohibition against permissive, non-Federal counterclaims in section 146 proceedings, there remains the question of whether our district court has jurisdiction of the subject matter of the Ziegler counterclaim. Montecatini argues that it does not. Appellant Ziegler takes the opposite position, suggesting at least four different bases for subject matter jurisdiction. Because we conclude that the counterclaim falls within the general jurisdiction of the district court in its capacity as a local court for the District of Columbia, we do not reach the other jurisdictional theories presented by the appellant.

Prior to the District of Columbia Court Reorganization Act of 1970, the local jurisdiction of our district court was defined by D.C.Code § 11-521 (1966):

(a) Except in actions or proceedings over which exclusive jurisdiction is conferred by law upon other courts in the District, the United States District Court for the District of Columbia, in addition to its jurisdiction as a United States district court and to any other jurisdiction conferred by law, has all the jurisdiction possessed and exercised by it on January 1, 1964, and has original jurisdiction of all:
(1) civil actions between parties, where either or both of them are resident or found within the District ; and
(2) offenses committed within the District.

The parties are in agreement as to the applicability of this statute but they differ as to the meaning of the words “found within the District.” Montecati-ni argues that neither party is a resident of or found within the District of Columbia. Ziegler, on the other hand, contends that Montecatini is “found within the District” by reason of its having brought this suit here under section 146. We agree with Ziegler.

This issue was before us once before in North Branch Products, Inc. v. Fisher, 179 F.Supp. 843 (D.D.C.), rev’d, 109 U.S.App.D.C. 182, 284 F.2d 611 (1960), cert, denied, 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961). In that case, the plaintiff brought an action in the district court seeking a declaration that it was the sole owner of certain patents and patent applications then held in the name of the defendant, an employee of the plaintiff. The defendant-employee filed an answer to the complaint in which he included a counterclaim requesting affirmative relief against the plaintiff. Subsequently, the defendant moved to quash the summons and to dismiss the complaint on the ground that the district court lacked jurisdiction of both his person and the subject matter. The district court denied the motions, holding that the defendant, by invoking the court’s jurisdiction in his counterclaim, had submitted his person to the jurisdiction of the court, thereby waiving any objection to service of process. In addition, the court held that the complaint stated a claim within its general original jurisdiction :

As has been indicated above, this case cannot be brought within the categories of Federal jurisdiction based on diversity of citizenship, or that founded on the patent laws. Every United States District Court, however, is a court of general original jurisdiction in respect to cases and controversies arising within Federal areas, or Federal reservations as they are technically known, that are geographically located within the district for which the court sits. Since the entire District of Columbia is a Federal area, this Court has been given general jurisdiction over cases and controversies between parties, “both or either of which shall be resident or be found within said district . . . (Footnote omitted.)

179 F.Supp. at 846, citing D.C.Code § 11-306 (1951) (predecessor of § 11-521). After concluding that it had both personal and subject matter jurisdiction, the court, on its own motion, dismissed the action under the doctrine of forum non conveniens. We reversed the latter ruling but sustained the district court’s jurisdiction as to both the person and the subject matter. 284 F.2d at 614-615. With respect to subject matter jurisdiction, our opinion simply stated that an action “to determine the title or ownership [as between the parties] of patents” is within the “common-law equity jurisdiction of our District Court.” Except for the brief reference which appears in the excerpt from the district court’s opinion quoted above, neither our opinion nor that of the district court specifically addressed the requirement that “either or both” of the parties be a resident of or found within the District of Columbia. We did take up the question in a subsequent case, however, and there stated expressly what was implicit in our North Branch decision:

The District of Columbia statute provides that the District Court here shall have cognizance “of all cases in law and equity between parties, both or either of which shall be resident or be found within said district.” [Defendant] came into the District to file a civil action concerning its property. It continued to prosecute that action. It appointed and maintained here an attorney in fact, who was authorized to accept service of all notices and process on its behalf for such proceedings between it and the Attorney General and “Treasurer of the United States” .... We think the institution and prosecution of a civil action in the court here clearly establishes the presence of the [defendant] here. It voluntarily subjected itself to the jurisdiction of the court; it could not do so in absentia. So we think [the defendant] was clearly found here. (Footnotes omitted; emphasis added.)

Kelberine v. Societe Internationale, 124 U.S.App.D.C. 257, 363 F.2d 989, 993 (1966) [citing D.C.Code § 11-306 (1961), later appearing in D.C.Code § 11-521 (1966)], cert, denied, 385 U.S. 989, 87 S.Ct. 595, 596, 17 L.Ed.2d 450 (1966). Montecatini attempts to distinguish Kel-berine, and particularly directs our attention to the following passage in the same opinion:

We intend this ruling to be no broader than the case. We hold that, if a foreign corporation comes into the District of Columbia for the purpose of filing and prosecuting in the District Court a suit concerning certain property, it cannot by restricting the authority of its resident agent, immunize itself against suit in that same court involving that same property.

Id. at 993-994. Montecatini argues that Ziegler’s counterclaim does not concern the “same property” as that which is the subject of the suit commenced by it under section 146, and that, therefore, Montecatini is not “found within the District” so as to give the district court jurisdiction of Ziegler’s counterclaim. Happily, we need not become entangled in such metaphysics, because the “same property” limitation set down in Kelber-ine has no application in the instant case. In Kelberine, a suit was filed against a litigant in the district court, not by another party to the pending suit, but by a stranger to the litigation. For that reason we restricted our holding to the situation in which the non-party’s claim concerns the same property as to which his adversary has already invoked the jurisdiction of the district court.

The present appeal arises in a significantly different procedural setting. The claim at issue is pleaded as a counterclaim by a party defendant in the same action which Montecatini has instituted in the district court. Under these circumstances, Montecatini will not be heard to say it is not “found within the District.” Since there is no attempt to subject the plaintiff to suits by strangers to the litigation, there is no need for the protective “same property” rule enunciated in Kelberine. One who invokes the jurisdiction of our district court against an adversary cannot expect at the same time to be shielded from the claims of his opponent.

We hold, therefore, that one who commences and prosecutes a civil action in the district court for the District of Columbia is “found within the District” within the meaning of D.C. Code § 11-521' for purposes of any counterclaim by his adversary, whether or not it involves the same subject matter as the main claim.

As we have stated, neither party disputes the applicability of section 11-521 on the question of subject matter jurisdiction. We note, however, that although the suit was commenced by Mon-tecatini prior to the effective date of the District of Columbia Court Reorganization Act of 1970, Ziegler’s counterclaim was not interposed until after that date. D.C.Code § 11-501(1) (Supp. V 1972) is a transitional provision which continues the local jurisdiction of the district court as to “[a]ny civil action or other matter begun in the court before the effective date of the District of Columbia Court Reorganization Act of 1970.” This raises the question of whether the counterclaim is a “matter begun” before the effective date by relation back to the date of the complaint. We do not decide that question, however, because another transitional provision clearly embraces the Ziegler counterclaim. Section 11-501(4) continues the local jurisdiction of the district court as to “[a]ny civil action [with certain exceptions not pertinent here] begun in the court during the thirty month period beginning on such effective date wherein the amount in controversy exceeds $50,000.” According to the allegations of Ziegler’s counterclaim, which are controlling as to the amount in controversy, the amount of his injury is “believed to amount to many millions of dollars.” Since the counterclaim was filed within the prescribed thirty-month period, we conclude that the district court’s jurisdiction of the counterclaim was not impaired by the 1970 Act.

Reversed and remanded.

      . 35 U.S.C. § 135(a) (1970).

      . Ziegler Answer, J.A. at 14.

      . Ziegler Answer, J.A. at 12.

      . J.A. at 26, 28.

      . Appellee’s Brief at 5.

      . The brief includes the following two contentions at 6, 13:
      A. A permissive non-Federal counterclaim may not be interposed in an action under 35 U.S.C. § 146.
      B. An action under Section 146 of the Patent Statute is limited to a review of the decision of the Board of Patent Interferences on issues that were raised in the Patent Office.

      . J.A. at 14.

      . Rule 13 states, in pertinent part: (a) Compulsory counterclaims.
      A pleading shall take as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . . (b) Permissive counterclaims.
      A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

      . Under Rule 13 the court may refuse to permit the pleading of a counterclaim in only two instances: (1) where the claim accrues to a party after he has already filed his pleading [Rule 13(e)] ; and (2) where the party has inadvertently omitted the counterclaim from a pleading already filed [Rule 13(f)],

      . By the terms of the Rules themselves, Rule 13 does apply to section 146 actions. Rule 1 makes all of the Rules applicable in “all suits of a civil nature . . . with the exceptions stated in Rule 81.” Rule 81 contains no exception for section 146 actions. See, also, 2 Moore, Federal Practice ][ 1.-03 [4] (2d Ed. 1970).

      . Appellee’s Brief at 13-17.

      . Id. at 6-13. This ground is also relied upon by the district court in its opinion, reported at 15 Fed.Rules Serv.2d 1193, 1194, Civil Action No. 3291/69 (D.D.C., filed January 25, 1972).

      . Cited in the Appellee’s Brief at 14 and in the district court’s memorandum opinion. 15 Fed.Rules Serv.2d at 1194.

      . Although DeSeversky arose from an action under section 145 (to review an adverse decision of the Patent Office Board of Appeals) rather than section 146, its reasoning governs for both types of actions. Indeed, one of the authorities relied upon in De-Seversky is our decision in General Motors Corp. v. R. E. Dietz Co., 137 U.S.App.D.C. 100, 420 F.2d 1303 (1969), a section 146 case.

      . The Montecatini brief discusses several other decisions in addition to the ones we have mentioned. Except for two of these which are completely irrelevant, we believe they, too, come within the interpretation we have stated. See Cody v. Aktiebolaget Flymo, 306 F.Supp. 728, 730 (D.D.C. 1969), aff’d, 146 U.S.App.D.C. 345, 452 F.2d 1274 (1971), cert, denied, 405 U.S. 990, 92 S.Ct. 1254, 31 L.Ed.2d 456 (1972) ; Sperry Rand Corp. v. Bell Tel. Laboratories, 173 F. Supp. 714, 715 (S.D.N.Y. 1959), appeal denied, 272 F.2d 29 (2d Cir. 1959).

      . See McFarlane v. Resinite Corp., 273 F. Supp. 224 (N.D.Ill. 1967) (suit under section 146 joining claims for infringement and unfair competition) ; Etten v. Lovell Mfg. Co., 4 F.R.D. 233 (W.D.Pa. 1945) (suit under predecessor of section 146 joining claim charging conspiracy to give false testimony) ; Michigan Tool Co. v. Drummond, 33 F.Supp. 540 (D.D.C. 1938) (counterclaim for infringement) ; E. I. du Pont de Nemours and Co. v. Atlas Powder Co., 24 F.Supp. 263 (D.Del. 4938) (counterclaim for infringement). Note that all of the preeeeding cases but McFarlane were decided under the predecessor to section 146, Revised Statutes § 4915, as amended (formerly codified at 35 U.S.C. § 63).

      . Appellee’s Brief at 17.

      . Id.; 35 U.S.C. § 135 (1970).

      . Appellee’s Brief at 6.

      . Act of May 20, 1926, ch. 347 § 3, 44 Stat. 578, as amended, 45 U.S.C. § 153 subd. l(p) (1970). The provision has since been amended to make the Board’s order “conclusive” on the parties and to restrict the scope of review. An order can now only be overturned if the Board has failed to comply with the statute or has exceeded its jurisdiction or if the order is defective by reason of fraud or corruption committed by a member of the Board.

      . While affirming the dismissal of an employer’s counterclaim in one such proceeding, the Court of Appeals for the Fifth Circuit implied that permissive counterclaims can be interposed in an action to enforce the Board’s award. Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 236 (5th Cir. 1970).

      . Radio Corp. of America v. Philco Corp., 201 F. Supp. 135, 143 (E.D. Pa. 1961), aff’d, 309 F.2d 397 (3d Cir. 1962).

      . The recent amendments of the enforcement procedure discussed in note 19 will give some idea of the extraordinary need for finality in matters affecting railway operations.

      . Act of March 2, 1863, ch. 67 §§ 3, 4, 12 Stat. 698, as amended. Presently codified, as amended, at 31 U.S.C. §§ 231, 232 (1970).

      . 29 U.S.C. § 107 (1970).

      . 40 U.S.C. § 270a (1970).

      . A second counterclaim against the general contractor was dismissed on other grounds. 65 F.Supp. at 527.

      . 35 U.S.C. § 63 (formerly codified at Revised Statutes § 4915).

      . It is common ground that jurisdiction of the counterclaim cannot be based upon 28 U.S.C. § 1332 (diversity of citizenship) because both parties are aliens. Paragraph 1 of Ziegler Answer; Appellee’s Brief at 26.

      . Act of July 29, 1970, Pub.L. No. 91-358, 84 Stat. 473.

      . Appellee’s Brief at 19.

      . Appellant’s Brief at 18-20. .

      . The question of whether this requirement is subject matter jurisdictional or merely a rule of venue has not been raised in the briefs. Since we conclude that Montecatini was “found within the District” in any event, we need not consider and we do not decide this question.

      . The effective date was February 1, 1971. D.C.Code, Note preceding section 11-101 (Supp. V 1972). Montecatini filed its complaint on November 18, 1969. Ziegler filed Ms counterclaim on March 29, 1971.

      . Paragraph 32 of Ziegler Answer.