author: BOREMAN, Senior Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY MANUFACTURING COMPANY, Respondent.
    No. 72-1663.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6. 1972.
    Decided July 19, 1973.

      Stanley J. Brown, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Provost, Asst. Gen. Counsel, and William F. Wachter, Atty., N. L. R. B., on brief), for petitioner.
    Bernard P. Jeweler, Baltimore, Md. (Bernard W. Rubenstein, and Edelman, Levy & Rubenstein, Baltimore, Md., on brief), for intervenor.
    John E. Jenkins, Jr., Huntington, W. Va. (Jenkins, Schaub & Fenstermaker, Huntington, W. Va., on brief), for respondent.
    Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

This case is before the court on the application of the National Labor Relations Board for enforcement of its order, issued on January 28, 1972, against the Quality Manufacturing Company (hereinafter “Quality” or “the Company”). The Board’s decision and order are reported at 195 N.L.R.B. No. 42.

The Company’s owners and principal officers are Lawrence Gerlach, Sr., president; his wife, Mary Kathryn Gerlach, production manager; and their son, Lawrence Gerlach, Jr., general manager. The Upper South Department, International Ladies’ Garment Workers’ Union, has been certified as the collective bargaining representative of the Company’s employees in an appropriate unit since 1968. The Union’s chairlady, or steward, who represented the employees in disputes with management under the collective bargaining agreement was, at all times pertinent to this case, Delila Mulford.

On the morning of October 10, 1969, Mulford and three other employees met with all three Gerlaehs, during which meeting the employees complained that they could not make a satisfactory wage under the piece work system then in effect. One of those so complaining was Catherine King, a long-time employee. The discussion ended with Gerlach, Jr., ordering Mulford to return to her work station and telling her “if [the employees] didn’t like the way it was there in the company to go elsewhere.”

Later that same day, Mrs. Gerlach noticed that King had shut down her machine and was waving her arms, gesturing, and causing some minor disturbance. Two other employees had stopped their machines and were watching King. Mrs. Gerlach directed her to resume production, but King told her to “tend to your business,” whereupon Mrs. Gerlach ordered King to go to Mr. Gerlach’s office. Upon King’s request, Mulford left her own work station and accompanied King to the anteroom of Mr. Gerlach’s office despite Mrs. Gerlach’s warning to Mulford that she “had no business down there.” When Mrs. Gerlach informed her husband of what had transpired he told Mulford to return to her work station because “it wasn’t a grievance and [they] didn’t have any business with her,” but Mulford refused. He then ordered King to come into his office for a discussion but King replied that she would not go without Mulford. Mr. Gerlach then told both King and Mulford to return to their work stations, and they did so. On Sunday, October 12, Mr. Gerlaeh telephoned Mulford and informed her that she was suspended for two days. No reason for the suspension was given but, according to Mulford, she thought it was because of her conduct in seeking to represent King on October 10 in Mr. Gerlach’s office.

On Monday, October 13, King found upon reporting for work that her time-card was not in the rack, which indicated under plant practice that she was wanted in Mr. Gerlach’s office. This time King asked Martha Cochran, the assistant chairlady, to accompany and represent her. Cochran accompanied King without first “punching in” on' her own timecard. They met Mrs. Gerlaeh outside the office and she warned Cochran that “your timecard is upstairs and my advice to you is to go on upstairs and go to work if you want your job.” Mrs. Gerlaeh added that they (the Gerlaehs) wanted to talk only to King and “take up where we left off Friday.” Cochran replied “Well, Mrs. Gerlaeh, I’m sorry, but if that’s what you want to talk to her about, that is Union business and she has asked me to represent her,” stating that she was a union steward and that was her duty. Cochran and King then spoke to Mr. Gerlaeh and asked him if he was going to give King her timecard. He said that he would not until she came into his office and talked to him in private. Cochran and King sat and waited in or near the office for the remainder of that day. In the meantime, Cochran’s timecard was also “pulled” from the rack.

On Tuesday morning, October 14, Cochran and King again went to Mr. Gerlach’s office and asked Mr. Gerlaeh if he was going to return King’s time-card. Gerlaeh again replied that he would not until King talked to him in private. Cochran asked about her own card and was informed that she had been suspended for two days for being away from her work station the prior day. King and Cochran then left the plant.

The next day, Wednesday, October 15, Mulford’s suspension had ended and she returned to Mr. Gerlach’s office along with Cochran and King. Mulford inquired as to the status of Cochran and King and was told that Cochran was under suspension and that King was wanted in Mr. Gerlach’s office alone. Mulford then returned to work and Cochran and King left the plant.

On Thursday, October 16, Cochran’s suspension had expired. She, Mulford and King returned to Mr. Gerlach’s office when they were met by Mr. and Mrs. Gerlaeh. Mrs. Gerlaeh gave Cochran her timecard and she went to work. Mrs. Gerlaeh then told King that Mr. Gerlaeh wanted to see her in the office alone. King asked, “With Delila [Mulford] ?” Mr. Gerlaeh said, “No,' not with Delila,” and added that if King “went out the door she was finished.” King left the plant. Mulford then asked if she should go to work and Mr. Gerlach replied, “You’ve abandoned your job. Your finished.” Mulford left the premises.

That same day, October 16, Cochran went to the office of Gerlaeh, Jr., during the noon hour and sought to present written grievances on behalf of Mulford, King and herself. Gerlaeh, Jr., told her he didn’t have time to fool with them since he was leaving town, and refused to accept the grievances. Cochran laid them on his desk but he picked them up and threw them in the trash. Gerlaeh, Jr., then walked into the work area, pulled Cochran’s timecard, and told her, “You worked this morning, but you’re not working this afternoon.” Subsequently, Cochran went to the office of Mr. Gerlaeh and asked if she had been fired. He responded, “Just go home. You wanted to draw unemployment now go on and draw it.” Cochran left the plant but telephoned the office later that afternoon and requested that Mr. Gerlach’s secretary ask him if she was to report to work the next day. She was told, “He said no.” She told the secretary to “tell him that he can reach me at ” my home phone when he needs me. Cochran was never notified to come back to work.

The full Board held that the Company violated Section 8(a)(3) and (1) of the Act upon a finding that Cochran was discharged because she sought to engage in a protected union activity, i.e., filing grievances on behalf of herself, Mulford, and King. The record contains substantial evidence to support the Board’s finding and its order with respect to Cochran’s illegal discharge will be enforced.

The Board also found (member Kennedy dissenting) that the Company violated Section 8(a)(1) of the Act by discharging King because of her insistence on union representation when summoned to an interview at which she had “reasonable grounds to believe that disciplinary action might result from the Employer’s investigation of her conduct,” and by suspending and discharging chairlady Mulford and suspending assistant chairlady Cochran because they sought to represent her at such an interview. We hold that on the facts of this case King had no right to have a union representative present at the requested meetings with her employer, and deny enforcement of that portion of the Board’s order.

In N.L.R.B. v. Ross Gear & Tool Co., 158 F.2d 607 (7 Cir. 1947), a female employee named Ford had engaged in a serious dispute with other employees. When several employees threatened to resign unless Ford was discharged, she was ordered to report to a supervisor’s office to discuss the controversy. After Ford twice refused to attend unless accompanied by union representatives, she was discharged for insubordination, i.e., refusal to comply with the order of the supervisor. The Board found that her discharge was because of her insistence on her right to have the union represent her at the meeting and that such discharge was in violation of Section 8(a)(1) and (3) of the Act. The court rejected this determination, commenting (158 F.2d at 613):

The Board in its brief states: “As the Board has pointed out the legality of Ford’s dismissal turns upon the issue whether or not she was within her statutory right in insisting upon the presence of the Union committee when Strecker [the supervisor] ordered her to report to his office alone.” A decision of this issue favorable to the Board would mean that any employee could with impunity refuse to comply with a direction by management and in effect abrogate a rule such as the one here involved. Assuming that an employee has a right to be represented by the union in the discussion or presentation of a labor grievance with an employer, such a right does not exist in the instant case. This is so, in our view of the matter, because there is no basis for the contention that such a grievance was involved.

In Dobbs Houses, Inc., 145 N.L.R.B. 1565 (1964), an employee was called in for an interview by her employer concerning reported misconduct. Her request that a union representative be present was denied, and at the conclusion of the interview she was discharged. In dismissing the complaint, the Board adopted the Trial Examiner’s finding that the company had not violated Section 8(a)(1) of the Act by refusing to permit the union representative to be present at the employee’s termination interview. The Trial Examiner had stated:

I fail to perceive anything in the Act which obliges an employer to permit the presence of a representative of the bargaining agent in every situation where an employer is compelled to admonish or to otherwise take disciplinary action against an employee, particularly in those situations where the employee’s conduct is unrelated to any legitimate union or concerted activity. (145 N.L.R.B. 1571)

Similarly, in Electric Motors and Specialties, Inc., 149 N.L.R.B. 1432 (1964), the Board adopted the Trial Examiner’s conclusion that an employee who had been called in for a disciplinary interview (149 N.L.R.B. at 1440)

. . . had not been called in connection with a pending grievance; her statutory and contract right to representation was inapplicable. The employee’s right to representation when she presents a, grievance is not violated when the employer calls her in for admonition or discipline. (Emphasis in original.)

In Texaco, Inc., Houston Producing Div., 168 N.L.R.B. 361 (1967), an employee was seen carrying a can of kerosene owned by his employer off company property. He was suspended almost immediately. An investigatory interview was scheduled and he requested that a union representative be permitted to attend, which request was denied, but the employee was informed that there would be no interview if he insisted on union representation. The employee chose to proceed, admitted taking the kerosene, and received additional discipline. The trial examiner found no violation of Section 8(a)(5) of the Act since the interview did not involve adjustment of a grievance, no grievance having yet arisen. The trial examiner found no violation of Section 8(a)(1) of the Act since the employee could have filed a formal grievance and thereby assured himself of union representation. The Board reversed. It found that the employer knew all the facts prior to the interview and that the interview was therefore not investigatory in nature but more concerned with providing a record which would support disciplinary action. It determined that, by such interview, the employer had unlawfully sought to deal directly with the employee on a matter affecting his terms and conditions of employment, and that such conduct “interfered with and restrained [the employee] in the exercise of his rights guaranteed by Section 7 of the Act,” and “transgressed [the employer’s] statutory obligation to bargain with the Union.” The Board held that the employer’s conduct violated Section 8(a)(1) and (5) of the Act. Enforcement of the Board’s order was denied. Texaco, Inc., Houston Producing Division v. N.L.R.B., 408 F.2d 142 (5 Cir. 1969). The court stated (408 F.2d at 144, footnotes omitted) :

After a careful study of the record, we can find neither basis in fact nor in law for the Board’s conclusion that a union representative should have been permitted to be present during the interview. The evidence is overwhelming that the interview was investigatory in nature and there is absolutely no evidence that the [employer] sought to deal with [the employee] about the consequences of his alleged misconduct. The function of the interview was to question [the employee], not to bargain with him.

In Texaco, Inc., supra, the court cited and discussed the Board’s decisions in Chevron Oil Co., 168 N.L.R.B. 574 (1967), and Jacobe-Pearson Ford, Inc., 172 N.L.R.B. 594 (1968). Both these cases were decided by the Board subsequent to its decision in Texaco, Inc., supra, 168 N.L.R.B. 361 (1967). The court characterized them as proper recognition “that an employee’s right to union representation does not apply to all dealings with his employer which' may eventually or ultimately affect the terms and conditions of his employment.” 408 F.2d at 144. The court continued (408 F.2d at 144-145, footnote omitted):

In Chevron Oil Co., the Board held that the exclusion of union representation from an employer-employee interview was not unlawful. There, a foreman had reported that nine employees had walked off the job fifteen minutes early in defiance of his orders. The employer interviewed the employees prior to arriving at a decision on whether disciplinary action was warranted. The Board concluded that such a fact-finding meeting was merely an added effort on the employer’s part to hear both sides of the story before reaching a decision, and pointed out that employees should not be shielded by a bargaining agent from company inquiries when management embarks upon an investigation to ascertain whether plant discipline has been breached. Likewise, in JacobePearson Ford, Inc., the Board upheld the denial of requested union representation at a proposed meeting between an employer and his procrastitinating employee finding that the meeting was called merely for the purpose of gathering information.
The result reached in these two cases would appear equally appropriate in the case sub judice. The Board’s reason for finding otherwise is not entirely clear. It attempts to explain away the inconsistency by pointing out that in neither Chevron nor Jacobe-Ford had the employer committed himself to disciplinary action at the time of the interview. But as the Company urges in its brief and as it clearly appears from the record, the Company was not committed to disciplinary action. The foreman's [initial] suspension of [the employee] was conditional pending the outcome of an investigation and by no means committed the Company to a course of action. In any event, if an interview is truly investigatory, we see no reason why an employer’s prior commitment to disciplinary action should necessarily transform it into a collective bargaining session requiring union representation.

After the court’s decision in Texaco, Inc., supra the Board decided at least three other cases involving similar denials of union representation. Wald Manufacturing Co., 176 N.L.R.B. 839, 846 (1969), aff’d, 426 F.2d 1328 (6 Cir. 1970); Dayton Typographic Service, 176 N.L.R.B. 357, 361 (1969); Texaco, Inc., Los Angeles Sales Terminal, 179 N.L.R.B. 976, 982 (1969). Complaints which included allegations that such denial of union representation violated the Act were dismissed in all three cases, the latter two involving allegations of Section 8(a)(1) violations. And, very recently, in Illinois Bell Telephone Company, 192 N.L.R.B. No. 138 (1971), a phone repairman was suspected of pilfering from a pay phone. He was interrogated, told the money was marked, and made to put the money from his pockets under a fluorescent light. Thereafter, he was interrogated again and his request for union representation was denied. Still later, he was told again the money had been marked and that the interrogator suspected him of having that money. Then the employee’s money was again fluoroscoped and he was told that his money was marked. The employee was then asked to sign a statement, and the employee again asked for and was denied union representation. Later that day, the employee was suspended. The trial examiner’s conclusion adopted by the Board was that at the time of these interrogations no discipline had been decided upon and the interrogation was fact-finding in nature, and that neither Section 8(a)(1) nor (5) of the Act had been violated because “the case law seems clear that the Act exacts no obligation upon the Company to accord the employee the right to union representation at that level of discussion.” 192 N.L.R.B. at-.

The Board’s holding that Quality violated Section 8(a)(1) of the Act by discharging King and by suspending and discharging Mulford and suspending Cochran cannot be sustained unless it may be said that King had a right to union representation at the interviews with her employer. In determining that such a right existed here for the reason that King had “reasonable grounds to believe that disciplinary action might result from the Employer’s investigation of her conduct,” the Board departed from existing case law as set out above.

The Board took notice of what it called the “Texaco line of cases,” but determined that they were distinguishable since:

[N]one of those eases presented a situation where an employee or his representative had been disciplined or discharged for requesting, or insisting on, union representation in the course of an interview. In fact, the Section 7 right of individual employees to act in concert “for mutual aid and protection” was not directly considered in those cases. Rather those cases involved a determination of whether the right of the union to bargain collectively was such that an employer could not legally deny its request to participate in the interview. (195 NLRB at

It is our conclusion that the Board’s attempt to distinguish these prior cases cannot be sustained. Every situation wherein an employee is directed by management to cooperate in an investigatory interview carries the implicit threat of discipline if such direction is not obeyed. And the statement that a particular Section 7 right mentioned in the above quotation had not been previously considered is inaccurate when examined in the context of the case before us. As illustrated by the cases cited in this opinion, the Board has many times been confronted with an alleged violation of Section 8(a)(1) in the context of a denial of union representation at employer-employee interviews. By necessary implication, Section 7 rights have been at issue in each of these cases. Yet never has it been thought, as the Board would hold here, that such rights require an employer to permit an employee to have a union representative present whenever the employee “has reasonable ground to fear that the interview will adversely affect his continued employment, or even his working conditions.”

In support of its new theory as to the meaning and application of the Act, and the extent of employees’ rights thereunder, the Board offers essentially the following statement: “After reflection, we have concluded that it is a serious violation of an employee’s individual right to be represented by his union if he can only request or insist on such representation under penalty of disciplinary action.” 195 NLRB at —•. The Board cited no supporting legislative history in its opinion nor does it offer any in brief or on argument to this court. It presents no persuasive analysis of the statutory provisions. It only adopted what “seems to us [the Board] to be the proper rule where, as here, the interview, whether or not purely investigative, concerns a subject matter related to disciplinary offenses.” 195 NLRB -.

It is clear beyond question, however, that the Board has no power to alter or rearrange employer-employee relations to suit its every whim. Rather, the Board can only determine whether the Act has been violated. And it would appear that in the entire history of the law as developed above, the management prerogative of conducting an investigatory interview such as Quality attempted-here has not been considered a violation of the Act. The language in the concurring opinion of Justices Stewart, Douglas and Harlan in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 225-226, 85 S.Ct. 398, 411, 13 L.Ed.2d 233 (1964), is apt:

“It is possible that . . . Congress may eventually decide to give organized labor or government a far heavier hand in controlling what until now have been considered the prerogatives of private business management. That path would mark a sharp departure from the traditional principles of a free enterprise economy. Whether we should follow it is, within constitutional limitations, for Congress to choose. But it is a path which Congress certainly did not choose when it enacted the Taft-Hartley Act.”

For the above-stated reasons, enforcement of the Board’s order insofar as it pertains to the discharge of King and Mulford and the suspensions of Mulford and Cochran is denied.

Enforcement granted in part and denied in part.

      . Subsequent to its decision in the instant case the Board decided Mobil Oil Corporation, 196 NLRB No. 144 (1972), in which the Board rejected a contention that employees suspected of the theft of their employer’s property were not entitied to representation during investigative interviews. The reasoning in Mobil Oil was similar to that upon which the decision here was premised. Member Kennedy dissented in Mobil Oil as he did in this case. The Board stated (196 NLRB at-) :
      An employee’s right to union representation upon request is based on Section 7 of the Act which guarantees the right of employees to act in concert for “mutual aid and protection.” The denial of this right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of Section 8(a)(1) of the Act. Thus, it is a serious violation of the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview which mazy put his job security in jeopardy. Such a dilution of the employee’s right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action. (Emphasis added.)
      That case is now pending in the Seventh Circuit, 482 F.2d 842, upon the Board’s application for enforcement.
      There is, of course, no doubt that employees have a right to union representation at interviews with the employer after a grievance has been filed. The issue here is whether that right may be extended under the Act to require employers to permit an employee to have union representation at interviews hitherto not included within its scope, i. e., whenever the employee has reasonable grounds to believe that disciplinary action might result from the employer’s investigation.

      . Texaco, Inc., Houston Producing Div., supra, 168 NLRB 361, enforcement denied, 408 F.2d 142; Chevron Oil Co., supra, 168 NLRB 574; Jacobe-Pearson Ford, Inc., supra, 172 NLRB 594; Texaco, Inc., Los Angeles Sales Terminal, supra, 179 NLRB 976. In its brief to this court, the Board adds to the list of Texaco progeny, Wald Manufacturing Co., supra, 176 NLRB 839, aff'd, 426 F. 2d 1328; Dayton Typographic Service, Inc., supra, 176 NLRB 357; Illinois Bell Telephone Co., supra, 192 NLRB No. 138; Lafayette Radio Electronics Corp., 194 NLRB No. 77 (1971).

      . Section 7 of the Act, 29 U.S.C. § 157, gives employees “the right ... to engage in . concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
      Section 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1), provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”


source: Caselaw Access Project

author: WILLIAM M. BYRNE, Sr., District Judge:

license: Public Domain

text:
    Les SCHWIMLEY and Les Schwimley Motors, Inc., a California corporation, Plaintiffs-Appellants, v. CHRYSLER MOTORS CORP., a Delaware Corp., and Chrysler Corporation, a Delaware Corp., Defendants-Appellees.
    No. 71-2587.
    United States Court of Appeals, Ninth Circuit.
    July 11, 1973.

      Bryan D. Flynn, of Mix, Flynn & Galloway, Sacramento, Cal., Sidney W. Robinson, Reno, Nev., for plaintiffs-appellants.
    Vargas, Bartlett & Dixon, Reno, Nev., Walter B. Maher, Highland Park, Mich., for defendants-appellees.
    Before KOELSCH and GOODWIN, Circuit Judges, and BYRNE, Sr., District Judge.

       Honorable William M. Byrne, Sr., United States Senior District Judge, Central District of California, sitting by designation.

   WILLIAM M. BYRNE, Sr., District Judge:

On June 19, 1969, the appellants filed their complaint and alleged that, during May of 1958, the appellees fraudulently induced them to enter into a written dealer agreement for the resale of De Soto automobiles at a time when the appellees secretly intended to discontinue the production of such automobiles. Both compensatory and punitive damages were sought.

At a Pre-Trial Conference November 20, 1970, the appellants and the appellees stipulated to a Pre-Trial Order which limited the issues of fact remaining to be litigated. Among those issues were the following:

“(c) Whether [appellees] formulated secret plans to discontinue production of De Soto automobiles prior to May, 1958.
“(e) Whether [appellees] did not intend to carry out this contract because they had formed secret plans to discontinue De Soto.”

On May 10, 1971, this action came to trial. The only evidence which the appellants produced was Les Schwimley’s own testimony, the testimony of one Bud Moon, and several items of documentary evidence.

Schwimley testified to the following: During May of 1958, he and his corporation entered into a written “direct dealer agreement” with the appellees whereby the latter agreed to supply them with new De Soto and Plymouth automobiles so that they could retail them from a certain facility located in Reno, Nevada. In reliance thereon, he and his corporation spent considerable sums of money in purchasing that facility, hiring personnel to operate it, and advertising those makes of automobiles. During the summer of 1959, they incurred additional expenses by moving from that facility to a larger one across town. This move was made because the appellees’ district representative “pressured” them into furnishing a better representative building so that the De Soto and Plymouth automobiles could be properly displayed to the public. In March, 1960, he heard rumors to the effect that production of De Soto automobiles was going to be discontinued. However, the appellees did not formally notify him of that fact until November 18, 1960. Consequently, the discontinuance of production caused him and his corporation to suffer severe financial losses (i. e., wasted advertising, lost sales, etc.). In August, 1963, after almost three years of struggling to make a profit with the single-line Plymouth dealership, he and his corporation agreed to terminate their contract with the appellees.

Bud Moon testified to the following: He was the chief car salesman for the appellants during the entire five year period that they were in business. He worked on a commission basis. After the production of De Soto automobiles was discontinued, his income was curtailed considerably.

Among the several items of documentary evidence which the appellants produced, only Exhibits 18, 19, and 20 are pertinent to this appeal. Each of those documents bears a date that is at least three months subsequent to the date that the appellants executed the direct dealer agreement (i. e., May 18, 1958). Exhibit 18 was dated August 18, 1958, and entitled “Market Representation Plan.” It proposed that the production of De Sotos be discontinued. Exhibit 20 was dated August 28, 1958, and entitled “Proposed Market Representation and Product Program for Chrysler Corporation.” It offered several alternatives for implementing the above-mentioned proposal. It was prepared by the appellees’ corporate planning group working in conjunction with their automobile sales group. Exhibit 19 was dated September 17, 1958, and entitled “Minutes, Administrative Committee Meeting.” Its title is self-explanatory. It indicated that the members of the administrative committee discussed the above-mentioned proposal but took no affirmative action on it.

When the appellants moved to admit the three exhibits into evidence, the appellees objected on the ground that the exhibits did not pertain to any of the issues set forth in the Pre-Trial Order. The appellants argued to the contrary. The court admitted the exhibits.

In addition, during the appellants’ argument on the above-mentioned motion, they moved to amend the pleadings to conform to the evidence. This motion was denied.

After the appellants rested their case, the appellees moved both to strike the exhibits from evidence and for an involuntary dismissal (a directed verdict). The district court judge denied the motion to strike and granted the motion for a directed verdict.

The appellants and the appellees agree on the “standard” controlling a district court’s consideration of a motion for a directed verdict. That standard is that the evidence must be viewed in the light most favorable to the party against whom the motion is made. Shafer v. Mountain States Telephone and Telegraph Co., 335 F.2d 932, 934 (C.A. 9, 1964). A motion for a directed verdict cannot properly be granted unless “the evidence is such that without weighing the credibility of witnesses there can be but one reasonable conclusion as to the verdict.” Brady v. Southern Railway Company, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943).

The appellants and the appellees disagree as to whether or not the court “applied” the standard properly. More specifically, they disagree as to whether or not “a reasonable man” could have found in the appellants’ favor on the basis of the evidence which was produced.

The appellants emhasize the fact that the three exhibits specifically discussed discontinuing the production of De Sotos. They assert that, even though those exhibits were subsequent to May 18, 1958, they constitute “some evidence” from which a reasonable man could infer that the appellees possessed the requisite fraudulent intent prior to that date. They argue that, since the standard requires that all reasonable inferences be drawn in favor of the party against whom the motion is made, the court committed error by granting the motion.

A fraudulent intent to act or not to act in a certain manner (i. e., to make an agreement while not intending to perform it) must be preceded by a purposeful decision to act or not to act in that manner. The three exhibits showed only that the appellees discussed a proposal to discontinue production. of De Sotos. They did not show that the appellees had previously decided to adopt that proposal. In fact, the failure of the administrative committee to take any affirmative action at their meeting would lead one to derive a contrary inference, i. e., that the appellees had not previously decided to adopt the proposal.

It is apparent the .district court denied the appellants’ motion to amend their pleadings to conform to the evidence for the same reason that it granted the directed verdict, i. e., there was no evidence that the appellees decided to discontinue De Soto until November, 1960.

The district court correctly found that the evidence produced by the appellants neither directly showed nor could a reasonable man have inferred that it showed that the appellees had decided to discontinue De Soto prior to either May 10, 1958, or the summer of 1959.

Affirmed.


author: FRIENDLY, Circuit Judge: MOORE, Circuit Judge

text:
    Australia JOHNSON, Plaintiff-Appellant, v. A. GLICK, Warden of Manhattan House of Detention for Men, 125 White Street, New York, N. Y.; Employee-Officer John, #1765 Badge Number, Manhattan House of Detention for Men, 125 White Street, New York, N. Y., Defendants-Appellees.
    No. 845, Docket 72-2428.
    United States Court of Appeals, Second Circuit.
    Argued May 30, 1973.
    Decided June 29, 1973.

      Emil M. Rossi, New York City (John E. Sprizzo, and Curtis, Mallet-Prevost, Colt & Mosle, New York City,-of counsel), for appellant.
    Eric J. Byrne, New York City (Norman Redlich, Corp. Counsel, City of New York, and Stanley Buchsbaum, New York City, of counsel), for appellees.
    Befqre MOORE, FRIENDLY and FEINBERG, Circuit Judges.
   FRIENDLY, Circuit Judge:

This appeal concerns an order of the District Court for the Southern District of New York dismissing a complaint under the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), for failure to state a claim on which relief can be granted. The complaint was brought against the Warden of the Manhattan House of Detention for Men and a correction officer, described in the complaint only as Officer John, Badge No. 1765, but now identified as John Fuller; by plaintiff Australia Johnson, who had been held in the House of Detention prior to and during his trial in the state courts on felony charges. It alleged that, while plaintiff was being checked back into the House of Detention, Officer Fuller reprimanded Johnson and other men for a claimed failure to follow instructions; that when Johnson endeavored to explain that they were doing only what another officer had told them to do, Officer Fuller rushed into the holding cell, grabbed him by the collar and struck him twice on the head with something enclosed in the officer’s fist; that during this incident the officer threatened him, saying “I’ll kill you, old man, I’ll break you in half”; that Fuller than harassed Johnson by detaining him in the holding cell for two hours before returning him to his cell; that when Johnson requested medical attention, Fuller, who was called upon by another officer to escort Johnson to the jail doctor, instead held him for another two hours in another cell before permitting him to see the doctor; and that despite the “pain pills” given him by the doctor, Johnson has since “been having terrible pains in his head.”

Recognizing that there were numerous decisions in other circuits that would seem to uphold the validity of the'complaint as against the officer, as well as one to the contrary, Judge Knapp nevertheless dismissed the complaint, saying “So far as I am aware no decision in this circuit requires such a conclusion, and it is one at which I would arrive only under constraint.” Although we realize that upholding this complaint may well lead to considerable further expansion of actions by state prisoners under 42 U.S.C. § 1983, so long as they may bring their civil rights complaints directly to federal courts without first presenting them to state courts, we think the ruling was in error so far as the officer was concerned.

The longest line of authority for the proposition that a complaint alleging an unprovoked attack on a prisoner by a state prison guard is within 42 U.S.C. § 1983 comes from the Ninth Circuit. The first case in the line is Brown v. Brown, 368 F.2d 992 (9 Cir. 1966), where, however, the complaint alleged other deprivations of civil rights. This was followed by Dodd v. Spokane County, 393 F.2d 330, 333-334 (9 Cir. 1968),

although the complaint there alleged not brutality simpliciter but the administration of violence in an effort to cause Dodd to testify falsely in another’s criminal trial. Next came Wiltsie v. California Department of Corrections, 406 F.2d 515 (9 Cir. 1968). Although this was a case of beating pure and simple, the court, over Judge Chambers' dissent held it to be “indistinguishable from Brown v. Brown,” supra. To the same effect is Allison v. California Adult Authority, 419 F.2d 822 (9 Cir. 1969), where the court followed Brown despite its recognition “that frivolous Civil Rights suits by prison inmates have become a matter of concern to district courts” and its belief that “Allison’s allegations of physical abuse stretch one’s credulity.”

Several other circuits have reached the same result. Bethea v. Crouse, 417 F.2d 504 (10 Cir. 1969); Collum v. Butler, 421 F.2d 1257 (7 Cir. 1970); Tolbert v. Bragan, 451 F.2d 1020 (5th Cir. 1971) ; Howell v. Cataldi, 464 F.2d 272 (3 Cir. 1972). Still others, though they apparently^have not yet been faced with precisely the issue posed by this complaint, have sustained civil rights actions involving closely related situations. Jenkins v. Averett, 424 F.2d 1228 (4 Cir. 1970) (police brutality following arrest) ; Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971) (same), rev’d on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Fitzke v. Shappell, 468 F.2d 1072 (6 Cir. 1972) (failure to provide medical care for prisoner). Only one circuit is clearly to the contrary, Cole v. Smith, 344 F.2d 721 (8 Cir. 1965).

Aside from the weight of all this authority, we are not so certain as was the district judge that the slate in this circuit is completely clean. In Martinez v. Mancusi, 443 F.2d 921 (2 Cir. 1970), we upheld a civil rights complaint against prison officials which was read to allege “a deliberate indifference to, and defiance of, the express instructions of the operating surgeons and the hospital attendants,” 443 F.2d at 924; it seems hard to draw a satisfactory legal distinction between such conduct and the deliberate infliction of physical suffering in a non-medical setting. In Inmates of the Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 22-24 (2 Cir. 1971), we granted preliminary injunctive relief where there had been a record of “beatings, physical abuse, torture, running of gauntlets, and similar cruelty.” While some emphasis was placed on the continuing and systematic acts of the correctional officers, this was said more in justification of issuance of an injunction than as a predicate for actionability. And, subsequent to Judge Knapp’s decision, we have stated in dictum:

We assume that brutal police conduct violates a right guaranteed by the due process clause of the Fourteenth Amendment.

Rosenberg v. Martin, 478 F.2d 520, 526 (2 Cir. 1973).

The great weight of authority in favor of the assumption thus stated in Rosenberg has not been accompanied by an equivalent amount of analysis. Many of 'the opinions, including our own in Martinez and Inmates, rely on a passing reference to the “cruel and unusual punishment” clause of the Eighth Amendment. The most extensive judicial treatment of the subject,' Judge Aldisert’s opinion in Howell v. Cataldi, supra, 464 F.2d at 280-282, likewise relies on that clause.

A case like this, however, does not lie comfortably within the Eighth Amendment. The text:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted suggests action taken, usually by a court, in carrying out a legislative authorization or command. The language, as is well known, is practically a verbatim copy of the tenth clause of the English Bill of Rights, 1 Wm. & Mary, 2d sess., eh. 2 (1688), which, in turn, embodied a corresponding section of the Declaration of Rights that was a cornerstone of the settlement of the Glorious Revolution. Although George Mason, who drafted the similar clause in the Virginia Declaration of Rights, which was the more immediate progenitor of the Eighth Amendment, may have been mistaken in thinking that the provision was aimed merely at torturous rather than at excessive punishments, there can be no disagreement that what sparked the English provision was the conduct of judges under James II. ^The background of our own Bill of Rights/ however,^ makes clear that the Eighth Amendment was intended to apply not only to the acts of judges but as a restraint on legislative action as wellH See In re Kemmler, 136 U.S. 436, 446-447, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Weems v. United States, 217 U.S. 349, 371-373, 378-379, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Furman v. Georgia, 408 U.S. 238, 266-269, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (concurring opinion of Mr. Justice Brennan). Undeed, every decision of the Supreme Court striking down a punishment under the Eighth Amendment has concerned a legislative act. Weems v. United States, supra; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion of Chief Justice Warren); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Furman v. Georgia, supra.

We do not suggest, however, that the cruel and unusual punishment clause must necessarily be read as limited to acts of legislatures in authorizing sentences or of judges imposing them. It can fairly be deemed to be applicable to the manner in which an otherwise constitutional sentence, as the death penalty was then thought to be, is carried out by an executioner, see Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), or to cover conditions of confinement which may make intolerable an otherwise constitutional term of imprisonment, see Holt v. Sarver, 442 F.2d 304 (8 Cir. 1971). On a parity of reasoning, we find no difficulty in considering the cruel and unusual punishment clause to be applicable to such systems of prison discipline as solitary confinement, see Wright v. McMann, 387 F.2d 519 (2 Cir. 1967) (reversing dismissal of complaint), 460 F.2d 126 (2 Cir.) (upholding award of damages), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972); Sostre v. McGinnis, 442 F.2d 178, 190-194 (2 Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972); Novak v. Beto, 453 F.2d 661 (5 Cir. 1971), cert. denied, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972), or corporal punishment, see Jackson v. Bishop, 404 F.2d 571 (8 Cir. 1968). The thread common to all these cases is that “punishment” has been deliberately administered for a penal or disciplinary purpose, with the apparent authorization of high prison officials charged by the state with responsibility for care, control, and discipline of prisoners. In contrast, although a spontaneous attack by a guard is “cruel” and, we hope, “unusual,” it does not fit any ordinary concept of “punishment.”

This is particularly clear in a case like the present where the plaintiff had not yet been found liable to “punishment” of any sort. We have considerable doubt that the cruel and unusual punishment clause is properly applicable at all until after conviction and sentence. See Anderson v. Nosser, 456 F.2d 2d 835 (5 Cir.) (en banc), cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972) modifying 438 F.2d 183 (5 Cir. 1971); Hamilton v. Love, 328 F.Supp. 1182, 1191 (E.D.Ark.1971); but see Rhem v. McGrath, 326 F.Supp. 681, 690 (S.D.N.Y. 1971). Yet it would be absurd to hold that a pre-trial detainee has less constitutional protection against acts of prison guards than one who has been convicted.

The solution lies in the proposition that, both before and after sentence, constitutional protection against police brutality is not limited to conduct violating the specific command of the Eighth Amendment or, as in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), of the Fourth. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), must stand for the proposition that, quite apart from any “specific” of the Bill of Rights, application of undue force by law enforcement officers deprives a suspect of liberty without due process of law. If Rochin suffered such a violation of his constitutional rights by the police as to be entitled to invalidation of a conviction obtained as a consequence, he also was the victim of a violation sufficient to sustain an action under the Civil Rights Act. The same principle should extend to acts of brutality by correctional officers, although the notion of what constitutes brutality may not necessarily be the same. This, apparently, was the view taken by the Seventh Circuit in Collum v. Butler, supra, 421 F.2d at 1259-1260, by the Fifth in Tolbert v. Bragan, supra, 451 F.2d 1020, and by the Ninth in Wiltsie v. California Department of Corrections, supra, 406 F.2d at 517. See also Jenkins v. Averett, supra, 424 F.2d at 1232, Fitzke v. Shappell, supra, 468 F.2d at 1076. And most of the courts faced with challenges to the conditions of pre-trial detention have primarily based their analysis directly on the due process clause. See Anderson v. Nosser, supra, 456 F.2d 835; Hamilton v. Love, supra, 328 F.Supp. 1182; Jones v. Wittenberg, 323 F.Supp. 93 (N.D.Ohio 1971), aff’d, 456 F.2d 854 (6 Cir. 1972); Brenneman v. Madigan, 343 F.Supp. 128 (N.D.Cal. 1972).

While the Rochin test, “conduct that shocks the conscience,” 342 U. S. at 172, 72 S.Ct. 205, is not one that can be applied by a computer, it at least points the way. Certainly the constitutional protection is nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiff’s person or anything attached to it and practically identified with it, see Prosser, Torts § 9 (4th ed. 1971); still less is it as extensive as that afforded by the common law tort action for assault, redressing “Any act of such a nature as to excite an apprehension of battery,” id. § 10, at 38. Although “the least touching of another in anger is a battery,” Cole v. Turner, 6 Mod. 149, 87 Eng.Rep. 907, 90 Eng.Rep. 958 (K.B. 1704) (Holt, C. J.), it is not a violation of a constitutional right actionable under 42 U.S.C. § 1983. The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force. Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Taking this view, and reading the complaint with the generosity required in pro se civil rights actions, Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), we think it stated a claim against Officer Fuller.

On the other hand, even on a charitable reading, we see no basis for sustaining the complaint against the warden. The rule in this circuit is that when monetary damages are sought under § 1983, the general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required. Thus in Martinez v. Mancusi, supra, 443 F.2d at 924, we conditioned a conclusion of liability of the warden on a finding that he was personally “responsible for what the guards did.” Again, in Wright v. Mc-Mann, supra, 460 F.2d at 134-135, in upholding a damage award as against Warden McMann, we stressed that “there is every reason to believe that he was aware of segregation cell conditions,” and that “responsibility for permitting such conditions to exist was ultimately, in any event, squarely his.” See also Harty v. Rockefeller, 338 F. Supp. 367 (S.D.N.Y.1972); (Gurfein, J.). Adams v. Pate, 445 F.2d 105, 107 & n. 2 (7 Cir. 1971), and a dictum in Dunham v. Crosby, 435 F.2d 1177, 1180 (1 Cir. 1970), are in accord. We reaffirm our position here, though we are aware that Anderson v. Nosser, 438 F.2d 183, 199-200 & n. 13 (5 Cir. 1971), modified, 456 F.2d 835 (5 Cir. 1972) (en banc), left the question open; that Hesselgesser v. Reilly, 440 F.2d 901 (9 Cir. 1971), held that § 1983 liability might be predicated on a specific state statute making a sheriff liable for the acts of his deputies; and that Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 370 & n. 39, rev’d on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), went all the way, holding respondeat superior to be fully applicable to actions under § 1983.

Here the complaint alleged only that Warden Glick was in charge of all the correctional officers employed at the House of Detention. It did not allege that the warden had authorized the officer’s conduct, see Martinez v. Mancusi, supra, 443 F.2d at 924, or even that there had been a history of previous episodes requiring the warden to take therapeutic action, cf. Wright v. McMann, supra, 460 F.2d at 134-135; it alleged a single spontaneous incident, unforeseen and unforeseeable by higher authority. While appellant’s counsel urged that we permit him to develop further facts that might implicate the warden, the better course is to affirm the dismissal of the complaint against the warden without prejudice to an application for leave to amend if a factual basis for this should appear. We request that counsel assigned by the judge to take this appeal shall continue to act for Johnson in the district court.

Reversed with respect to Officer Fuller; affirmed with respect to Warden Glick. No costs.

MOORE, Circuit Judge

(dissenting):

I respectfully dissent.

It is by now axiomatic that, in order to recover damages in an action under 42 U.S.C. § 1983, a claimant must show a deprivation of rights protected by the Constitution. Rosenberg v. Martin, 478 F.2d at 520 (2d Cir. 1973). The facts' of the case before us, in my opinion, simply do not give rise to a deprivation of constitutional rights protected by either the Eighth Amendment, as the majority recognize, or by the due process clause of the Fourteenth Amendment.

We have here not a continuous or systematic pattern of police brutality, but, rather, only a single, isolated incident in which Officer Fuller, perhaps unnecessarily aggressive in the discharge of his duties, administered a few blows to plaintiff. I can do no better than quote the language of the majority for a statement of what I feel to be the dispositive consideration in this case:

\ “The management by a few guards of i large numbers of prisoners, not usual-1 ly the most gentle or tractable of men : and women, may require and justify ^the occasional use of a degree of intentional force. Not every push or shove, even if it may later seem unnecessary in. the peace of a judge’s chambers, violates a prisoner’s constitutional rights.”

To be sure, there may very well be presented situations wherein the conduct of prison officials or the police is such that it “shocks the conscience”, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952), such as to be violative of the Constitution. See, e. g., Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 22 (2d Cir. 1971), where the “barbarous conduct * * * — the beatings, physical abuse, torture, running of gauntlets, and similar cruelty — was wholly beyond any force needed to maintain order”; or Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), where the prisoner was forced to return to a prison cell immediately after leg surgery, in blatant disregard of surgeons’ instructions, was forced to walk on the leg operated upon, was placed the following day in a cell lacking facilities for his care, and was denied medicine to alleviate a constant and unrelieved pain. In those cases, the actions of the prison officials evidenced a continuing pattern of misconduct, which assumed constitutional proportion; here, the action of Officer Fuller falls short of the conduct proscribed in Inmates and Martinez, supra, in terms of both duration and type of punishment inflicted. As the majority note, the complaint here “alleged a single, spontaneous incident, unforeseen and unforeseeable by higher authority.” This type of situation we deemed non-actionable in Inmates, supra, 453 F.2d at 23, on the following ground:

“If the abusive conduct of the prison guards had represented a single or short-lived incident, unlikely to recur, or if other corrective measures had been taken to guarantee against repetition, injunctive relief might be denied, despite the heinous character of the conduct.”

The majority today opens the proverbial Pandora’s box by inviting civil rights actions from all prisoners feeling that their prison guards have treated them unnecessarily harshly. The inevitable result will be lamentable in two respects: (1) federal district court dockets will become even more overburdened than is now the case; and (2) federal courts will be drawn unnecessarily into supervising the day-to-day affairs of State institutions. ' Such a result would, and should, be avoided by limiting federal court intervention in this type of case to situations presenting bona fide § 1983 actions. Since this is not one of those, I would affirm the judgment below.

      . Apart from controlling Supreme Court authority, see Preiser v. Rodriguez, 411 U.S. 475, 477, 498-499, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), this would be a most inappropriate ease in which to require exhaustion of state judicial remedies. As a result of Johnson’s conviction of manslaughter, and the consequent suspension of his civil rights, N.Y_. Civil Rights Law, McKinney’s Consol.Laws, c. 6, § 79, he is presently unable to bring an action in the state courts.

      . Also, it may be that all the beatings alleged there were for the purpose of extracting a confession from Brown, see 368 F.2d at 993-994 n. 2, in which case Fifth Amendment protections would be implicated.

      . See Granucci, “Nor Cruel and Unusual Punishments Inflicted”: The Originnl Meaning, 57 Calif.L.Rev. 839 (1969).

      . The history of the cruel and unusual punishment clause is lucidly recounted in Mr. Justice Marshall’s concurring opinion in Furman v. Georgia, supra, 408 U.S. at 316-322, 92 S.Ct. 2726.

      . We note also that in Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), the Supreme Court had little difficulty in upholding a conviction of a law enforcement officer under 18 U.S.C. § 242, the criminal counterpart of 42 U.S.C. § 1983, finding due process to be violated “where police take matters in their own hands, seize victims, [and] beat and pound them until they confess.” 341 U.S. at 101, 71 S.Ct. at 579. The indictment charged that the victim had been deprived of
      the right and privilege not to be deprived of liberty without due process of law, the right and privilege to be secure in his person while in the custody of the State of Florida, the right and privilege not to be subjected to punishment without due process of law, the right to be immune, while in the custody of persons acting under color of the laws of the State of Florida, from illegal assault and battery by any person exercising the authority of said State
      as well as the right to be tried in accordance with due process of law, 341 U.S. at 103, 71 S.Ct. at 580, and the trial judge charged the jury that it could find Williams guilty if he beat the victim “for the purpose of imposing illegal summary punishment upon him” as well as if the beating was “for the purpose of forcing him to make a confession”. 341 U.S. at 104, 71 S.Ct. at 580. See also United States v. Price, 383 U.S. 787, 793, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966).

      . The standard gains added content from other language in the opinion. The acts must do more than “offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically”; they must be such as “to offend even hardened sensibilities,” 342 U.S. at 172, 72 S.Ct. at 209, or constitute force that is “brutal” and “offensive to human dignity.” 342 U.S. at 174, 72 S.Ct. 205.

      . Even at common law “mere words, however violent, are held not to amount to an assault,” Id. § 10, at 39.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Ronald Paul BROWN, Appellee.
    No. 72-1601.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 16, 1973.
    Decided July 25, 1973.

      Sheryle L. Randol, Asst. U. S. Atty., Kansas City, Mo., for appellant.
    David R. Freeman, Federal Public Defender, Kansas City, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge

       Sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by the Government from final order dated September 25, 1972, dismissing an indictment against the defendant Brown charging him with bail jumping in violation of 18 U.S.C. § 3150.

Defendant had entered a plea of guilty to a Dyer Act charge. Date for sentencing remained indefinite pending a report by the probation office. Defendant was released on his own recognizance which required him to appear at all scheduled hearings and prohibited him from leaving the Western District of Missouri. He gave his address at which he could be reached as R.R. 4, Warrensburg, Missouri — his father’s home. A certified letter notifying him to appear on June 16 for sentencing was sent to defendant at the above address. Such letter was returned unopened. Similar notification was sent to defendant at Box 122, Centerview, Missouri, the address of his estranged wife, which was receipted for by his wife on June 14 and opened by her.

Defendant concedes that such letter was given to him by his wife on June 18, the first time defendant appeared at his wife’s home during the relevant period. Defendant had not given his attorney or any court official any change of address or instructions where to reach him prior to the mailing of the notice. His attorney’s efforts to reach him by phone were unsuccessful.

After receiving the notice of the June 16 hearing from his wife on June 18, defendant made no effort to contact his attorney or court officials. On June 20 defendant was contacted while incarcerated in a Burlington, Colorado, jail by FBI Agent Bunch. He was given the Miranda warnings after which he voluntarily stated inter alia that he knew his failure to appear for sentencing would be considered a bond default which would result in additional charges. He stated that he panicked upon learning he had missed his sentencing appearance and fled the State of Missouri and headed for Denver to visit his sister. He admitted that he gave his father’s Warrensburg address as a place where he could be reached.

On July 7 defendant appeared before the court for arraignment on the bail jumping charge with his counsel. After his rights were fully explained to him by the court, he entered a voluntary plea of guilty to the indictment. The transcript of the Rule 11 proceeding reveals that the court was uncertain whether the willful element of the offense was established. The court accepted the plea conditionally, stating:

“ * * * i will simply require the United States Attorney’s office to prepare, file and serve within a week an appropriate statement of what the facts are, together with a brief in support, and opposing counsel shall have five days thereafter to file a brief in opposition. If I determine that there is not sufficient evidence, I will simply set the plea aside,

On July 14 the Government filed a response to the court’s order requiring it to supply additional information which sets out additional facts and exhibits. Defendant on July 24 filed a motion to require the Government to produce additional evidence of his guilt or in the alternative, for leave to withdraw plea of guilty and for a dismissal. The Government on July 26 filed a motion acquiescing in defendant’s motion for leave to withdraw guilty plea. The Government requested that the case be docketed for trial.

The court by order of July 27 sustained defendant’s motion for disclosure of additional evidence. All other pending motions were denied. The Government on August 8 filed response to the July 27 order, naming particular witnesses and giving a synopsis of their anticipated testimony. The Government further stated that they would produce evidence that the defendant was in Virginia during the first part of June and that he left there on June 3 with an automobile illegally obtained and was possibly accompanied by a female; that the automobile and the female thus far have not been located and that the search therefore is continuing “and it is the Government’s belief that she does have information regarding defendant’s whereabouts on dates in question and may be able to testify to his announced intention to avoid his court appearance, and evade capture. Further, it is our position that the Government has a right to pursue its investigation until the time of trial and that investigation is continuing.”

The pleading concludes as follows:

“This is not a stipulation of fact nor does the United States consent to have this information treated as such. The United States furnishes the above information in compliance with Court Order but it reserves to itself objection to these proceedings, and respectfully requests the Court to accept defendant’s guilty plea as tendered or allow him to withdraw his plea and docket this case for trial.”

On August 22 the court filed an additional order stating that the August 8 response does not adequately set out what factual circumstances are under investigation. The court challenges the Government’s statement that it has a right to pursue its continuing investigation up to the time of the trial. The court then states:

“The question of whether there is a factual basis for a guilty plea under Rule 11 and the question of whether the government will be able to adduce sufficient evidence to get to the jury is essentially the same question. In order that this question may be put in proper focus, it is, accordingly,
•X- * -X- -X- * *
“ORDERED that the government state what additional investigation is being pursued so that a determination' may be made as to whether the evidence being sought, when considered with the evidence already outlined in the stipulation of the parties and in the government’s response of August 8, 1972, may be sufficient to establish a factual basis for the acceptance of the defendant’s plea of guilty.”

The Government on September 5 responded that it has attempted to fully comply with the prior orders of the court and that it is still looking for the female referred to in its prior response for the purpose of seeking the information there indicated, and concludes as follows:

“The Government is not willing to consent to submission of the case to the Court on stipulation and will not consent to the waiver of trial by jury and reiterates its request that the case be forthwith retransferred to Division 3 for early trial or that this Court accept defendant’s tendered plea.”

The final order entered on September 25 which gives rise to this appeal reads in pertinent part:

“The defendant in this case has always indicated a willingness to enter a plea of guilty. The difficulty has always been whether it can fairly be said that a factual basis for such a plea actually exists.
* -X * * * *
The refusal of the government to comply with the repeated order of this Court forces the Court into a position not dissimilar from that which the government forced Judge Will under the circumstances involved in Will v. United States, 389 U.S. 90 [88 S.Ct. 269, 19 L.Ed.2d 305] (1967).
“Judge Will directed the government to furnish particular information and indicated that he would dismiss the indictment if the government refused to comply. The government sought and obtained a mandamus in the Seventh Circuit. The Supreme Court reversed. The case makes clear that the Federal Rules of Criminal Procedure do not place limitations upon the power of the Court to direct appropriate proceedings in order to keep current with an ever increasing docket.
“Under the circumstances of this case, it is
“ORDERED that the indictment should be and the same is hereby dismissed.”

Defendant has filed a motion to dismiss this appeal upon the ground that the order appealed from was in effect an acquittal of the defendant and that 18 U.S.C. § 3731 denies the Government the right to appeal from the judgment. Such motion is submitted with the appeal on the merits.

The Government seeks reversal on the ground that the dismissal of the indictment without the Government’s consent was beyond the power and authority of the court. Defendant argues that the dismissal by the court below was proper and that, regardless of its propriety, this court is without jurisdiction to hear this appeal. These two questions are closely intertwined.

Defendant’s jurisdictional argument is focused on the appellate jurisdiction conferred by 18 U.S.C. § 3731. It is clear that if this court has jurisdiction to hear this appeal it is derived from § 3731.

As recently amended by the Omnibus Crime Control Act of 1970 (P.L. 91-644, tit. Ill, § 14(a), 84 Stat. 1890), § 3731 provides in part as follows:

“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”
•X- -X- -X- * -X- -X*
“The provisions of this section shall be liberally construed to effectuate its purposes.”

The amendment applies to criminal eases begun after January 1, 1971, and thus controls this case. Defendant contends that the dismissal in this case was tantamount to an acquittal and that, as such, jeopardy “attaches” prohibiting further prosecution. Defendant thus seeks to bring himself within the exception to the general rule of § 3731. Unfortunately, no cases have been cited or found which seek to explore the meaning of § 3731 as amended.

In reference to the pre-amendment version of § 3731, the Supreme Court made the following observations:

“The Solicitor General, at oral argument in this case, forthrightly stated that ‘there are few problems which occur so frequently or present such extreme technical difficulty in the Solicitor General’s office [as] in the proper construction of the Criminal Appeals Act.’ We share his dissatisfaction with this statute. Nevertheless, until such time as Congress decides to amend the statute, this Court must abide by the limitations imposed by this awkward and ancient Act.” United States v. Sisson, 399 U.S. 267, 308, 90 S.Ct. 2117, 2139. 26 L.Ed.2d 608 (1970) (footnote omitted).

It is clear that the 1970 amendment was passed in part for the purpose of abolishing these “[t]echnical .distinctions in pleadings as limitations on appeals by the United States.” 1970 U.S. Code Cong. & Adm.News p. 5848. As the above-quoted phrase suggests, however, the elimination of these technical distinctions also greatly broadens the^ right of appeal by the government. The government is now “authorized to appeal any decision or order terminating a prosecution except an acquittal.” Id. Thus the amended version of § 3731 is drastically different from the preamendment version in both scope and clarity. The difference is so great that most of the pre-amendment eases interpreting the section are now obsolete.

In United States v. Apex Dist. Co., 270 F.2d 747, 755 (9th Cir. 1959), for example, the court held that “the Government may appeal [under § 3731] from a decision or judgment ‘setting aside or dismissing’ an indictment only if such decision or judgment is based upon a defect in the indictment or in the institution of the prosecution.” Thus a dismissal because the United States refused to comply with pretrial discovery orders was held not appealable. The plain language of the amended version of § 3731 now clearly overrules such cases. See United States v. DiStefano, 464 F.2d 845, 846-848 & nn. 2-7 (2d Cir. 1972).

We hold that the amended statute now means precisely what it says: Where a district court dismisses an indictment or information, the Government is entitled to an appeal. The sole exception to this broad right of appeal is that no appeal shall lie where the double jeopardy clause prohibits further prosecution. It is this sole exception which is invoked by defendant. If it is inapplicable, then this court’s jurisdiction to hear this appeal is, thanks to the amendment of § 3731, very clear.

It appears to us from a careful reading of the entire record that the September 25 order appealed from, hereinabove quoted, bases the dismissal upon the Government’s failure to supply the court with the additional information it required in order to pass upon the question of whether the guilty plea should be accepted. Such view is supported by the trial court’s reliance on Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), and particularly on the statement in the order reading, “Judge Will directed the government to furnish particular information and indicated that he would dismiss the indictment if the government refused to comply.”

A dismissal based on failure of the Government to make the disclosures required by the court in connection with the Rule 11 hearing on the plea of guilty appears to be clearly appealable under § 3731 as amended.

Nevertheless, defendant seeks to characterize this dismissal as a Rule 12 pretrial sufficiency-of-the-evidence determination to which jeopardy attaches thus preventing appeal under § 3731. While, as previously indicated, we strongly disagree that this is an accurate characterization, we will briefly address this contention on its merits. Assuming arguendo that this order of dismissal constitutes a pretrial sufficiency-of-the-evidence determination, for the reasons which follow we hold that jeopardy does not attach, the order is appealable, and the dismissal was erroneous.

A preliminary inquiry concerns the question of when double jeopardy attaches. The general rule is clear: in a jury case, jeopardy attaches when the jury is impaneled and sworn. See, e.g., Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Newman v. United States, 133 U.S.App.D.C. 271, 410 F.2d 259 (1969); Alexander v. Fogliani, 375 F.2d 733 (9th Cir. 1967). This rule like most other rules, however, is not without important exceptions. Thus, even after the jury has been sworn, “a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). See also Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

In dealing with the question of the circumstances in which retrial is to be precluded “when the initial proceedings are aborted prior to verdict,” the Supreme “Court has, for the most part, explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will permit or preclude retrial.” United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971). Whether jeopardy attaches is based on flexible policy considerations rather than hard and fast rules: “[T]he conclusion that ‘jeopardy attaches’ . . . expresses a'judgment that the constitutional policies underpinning the Fifth Amendment’s guarantees are implicated. .” United States v. Jorn, supra, at 480, 91 S.Ct. at 555. Broadly-stated, the policy underlying the double jeopardy provision “is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal compelling him to live in a continuing state of anxiety and insecurity, as' well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), cited in United States v. Jorn, supra, 400 U.S. at 479, 91 S.Ct. at 554.

There are cases, such as United States v. Ponto, 454 F.2d 647, aff’d on rehearing en banc, 454 F.2d 657 (7th Cir. 1971), which hold that jeopardy can attach prior to trial. Ponto is distinguishable in a number of respects. It was decided before § 3731 was amended. Additionally, the court there determined as a matter of law prior to trial that a defense was conclusively established. This procedure is specifically authorized by Rule 12 in cases where a defense on the merits is “capable of determination without trial of the general issue.” There is no authority under Rule 12, however, to dismiss on the basis of a sufficiency-of-the-evidence defense which raises factual questions embraced in the general issue. See, e.g., United States v. Konx, 396 U.S. 77, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); Universal Milk Bottle Service v. United States, 188 F.2d 959, 962 (6th Cir. 1951); United States v. Treadway, 312 F.Supp. 307 (E.D.Va.1970); United States v. Callahan, 300 F.Supp. 519, 523 (S.D.N.Y.1969); United States v. Averell, 296 F.Supp. 1004, 1022 (E.D.N.Y. 1969). See also C. Wright, Federal Practice and Procedure §§ 193-194 (1969 & 1973 Supp.).

In our -present case, the full_.ev-idence on the issu.e„of--wi.llfuIness was, not, before the court. Also it seems clear in the prUgnt'-cffse that the only matter pending before the court was the issue of whether to accept defendant’s plea of guilty. Finally, to the extent that the double jeopardy aspects of Ponto are not distinguishable, we prefer the view of the four dissenting judges in that case.

We find no basis in the present case for departing from the general rule on double jeopardy heretofore set out on the factual situation here confronting us. The Government has never consented to a trial without a jury. The court in its various orders makes no mention that it is trying the case on the merits, and on the contrary the record as a whole fairly indicates that the only issue before the court was whether or not to-i accept defendant’s plea of guilty. We 1 hold that jeopardy has not attached and l that the trial court’s order of dismissal J is appealable to this court.

Defendant contends that Rule 11, Fed.R.Crim.P., impliedly confers power upon the court to dismiss the indictment for failure of the Government to disclose its evidence. We do not agree. We find nothing in Rule 11 placing any burden upon the Government to disclose its evidence in detail, nor do we find any case support for defendant’s position. The Rules Advisory Committee in its note to Rule 11 as amended in 1966 states: “The normal consequence of a determination that there is not a factual basis for the plea would be for the court to set aside the plea and enter a plea of not guilty.” 8 Moore’s Federal Practice — Cipes, Criminal Rules ¶ 11.-01 [3].

The Government has an obvious interest in securing acceptance of a plea of guilty and thus avoiding a trial. A refusal by the court to accept a plea of guilty by reason of the failure of the Government to make a detailed disclosure should be an adequate sanction, particularly where, as here, the Government has gone as far as it reasonably could in supplying information in its possession, and has persistently urged that it is diligently pursuing further investigation.

We note that the repeated hearings, pleadings and orders here involved have in all probability consumed more time on the part of the court and counsel than would be consumed in the trial of this relatively simple case. The final disposition of the case has been materially delayed. If the court in a Rule 11 proceeding cannot satisfy itself that there is a factual basis for the plea, the appropriate procedure is to refuse to accept the plea and go on with the trial of the case.

Defendant contends that the court properly determined on the merits that the Government’s evidence was insufficient to support a conviction. We do not agree. The District Court states that “the question of whether there is a factual basis for a guilty plea under Rule 11 and the question of whether the Government will be able to adduce sufficient evidence to get to the jury is essentially the same question.”

We may assume without so deciding that such statement is accurate. The record discloses that the court expressed the view that it was unable to determine whether to accept the guilty plea without additional information. The court does not expressly determine whether there was a factual basis for the plea. The court makes no express or implied finding that the Government could not supply sufficient evidence to support a conviction. Nor is there any express statement that the case had been submitted to the court on the merits. On the contrary, it appears quite clearly that the only issue before the court was whether or not to accept the guilty plea. As previously pointed out, the Government has consistently and vigorously maintained that all stipulations and evidence submitted were limited to the Rule 11 proceeding; that it consented to withdrawal of the guilty plea; that it insisted upon its right to a trial by jury under Rule 23, and that it was still continuing an investigation and would have additional evidence to offer at the trial.

Rule 29 authorizes a judgment of acquittal after the evidence of either side is closed if the evidence is insufficient to sustain a conviction. The trial on the merits has not been reached in this case. The Rules of Criminal Procedure contain no provision for summary judgment. If we assume, without so deciding, that the court has inherent power to grant a summary judgment, such action is inappropriate here where the Government insists it will be able to produce additional evidence on a material issue of fact which would support a conviction. No basis exists under Rule 12 or Rule 29, or any other rule, for the dismissal here made. We find no authority which supports the recognition of any implied or inherent authority to dismiss the indictment under the facts of this case.

Another consideration which suggests that the power here in question should not be implied or regarded as inherent is the doctrine of separation of powers. This doctrine was discussed by Chief Justice (then Judge) Burger in Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967). In Newman the following language appears:

“An attorney for the United States, as any other attorney, however, appears in a dual role. He is at once an officer of the court and the agent and attorney for a client; in the first capacity he is responsible to the Court for the manner of his conduct of a case, i. e., his demeanor, deportment and ethical conduct; but in his second capacity, as agent and attorney for the Executive, he is responsible to his principal and the courts have no power over the exercise of his discretion or his motives as they relate to the execution of his duty within the framework of his professional employment. This dual role is perhaps best illustrated as follows:
Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary power of the attorneys of the United States in their control over criminal prosecutions.
United States v. Cox, supra note 4, 342 F.2d at 171.” 382 F.2d at 481.

Again absent some compelling need for, or explicit exception allowing, judicial intervention, the broad power of the Executive branch to prosecute offenses against the United States should not be disturbed. This generally includes a power on behalf of the Government to take its case to trial. “On the District Attorney rests the responsibility to determine whether to prosecute, when to prosecute and on what charges to prosecute. A case is not to be summarily dismissed because the court disagrees with some policy of the District Attorney’s office.” United States v. Fleming, 215 A.2d 839 (D.C.App.1966) cited in Newman v. United States, supra, 382 F.2d at 481 n. 5.

In United States v. Gainey, 142 U.S.App.D.C. 262, 440 F.2d 290 (1971) after the defendant was sentenced by the court in a third case, guilty pleas were tendered in two remaining cases. After determining that the accused did not understand the charges, the two guilty pleas were refused. Rather than docketing the cases for trial, the district court, citing a large backlog of criminal cases, dismissed over the Government’s objections. In reversing, the Circuit Court states:

“The reasons for the dismissal reflected in the district court’s memorandum are entirely laudable. Faced with the duty to alleviate their clogged dockets, trial judges should address themselves to the backlog problem. Nevertheless, we conclude that it was not within the trial court’s discretion to enter these dismissals. In Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479, 480 (1967), this court said:
‘Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.’
* * * * * *
“We conclude that it is a proper function of the United States attorney to decide whether a person charged with crime should be brought to account as to other alleged crimes committed by the same defendant.
“Accordingly, we find that the district court did not have the discretionary power to dismiss the two eases in question and that said cases must be remanded to said court for further proceedings.” 440 F.2d at 291-292.

See also Petition of United States, 306 F.2d 737 (9th Cir. 1962).

We hold that the trial court erred in dismissing the indictment. The order dismissing the indictment is reversed and vacated. The case is remanded to the trial court for further proceedings consistent with the views herein expressed.

      . All dates are in 1972 unless otherwise indicated.

      . Rules cited herein are Federal Rules of Criminal Procedure unless otherwise indicated.

      . Defendant is the party in the best position to determine whether his failure to appear was willful. The court in the initial hearing by explaining the meaning of willful to the defendant and asking appropriate questions could doubtless readily have determined whether or not to accept the plea.


author: PER CURIAM:

text:
    MYCALEX DIVISION OF SPAULDING FIBRE CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 797-798, Dockets 72-2393, 73-1132.
    United States Court of Appeals, Second Circuit.
    Argued May 1, 1973.
    Decided June 19, 1973.
    Paul J. Spielberg, Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, Alan D. Longman, Atty., N. L. R. B., on the brief), for respondent.
    Eugene H. Gordon, Solinger & Gordon, New York City, for petitioner.
    Before FRIENDLY and HAYS, Circuit Judges, and JAMESON, District Judge

       Of the United States District Court for the District of Montana, sitting by, designation.

   PER CURIAM:

The single issue raised on this petition for review and cross-application for enforcement of an order of the National Labor Relations Board finding that the Company had violated Section 8(a)(5) and (1) of the NLRA by refusing to recognize and bargain with the Union is whether the Board erred in refusing to count one ballot marked in an irregular way in a representation election.

In February, 1972 the United Auto Workers filed a representation petition with the Board for a unit composed of all production and maintenance employees at the Mycalex Division of Spaulding Fibre Co., Inc. plant in Clinton, New Jersey. An election was scheduled and a notice of election was posted. The election was held on March 10. The ballot used in the election was in the customary form used in elections where only one union is involved and the voters are bi-lingual. The following is a sample copy of the ballot:

The ballot challenged in this petition contained no markings except the word “No” written on the “Yes” side of the ballot under the “Yes” square. We are presented with the question whether the Board abused its discretion in refusing to count this ballot as a vote against union representation. We think that the Board erred in ruling that the ballot should not be counted.

Board policy is to allow a ballot if there is a clear expression of preference, regardless of the irregularity of the mark on the ballot. Knapp-Sherrill Co., 171 NLRB 1547 (1968). The courts have consistently upheld this policy. NLRB v. Titche-Goettinger Co., 433 F.2d 1045 (5th Cir. 1970); NLRB v. Tobacco Processors, Inc., 456 F.2d 248 (4th Cir. 1972); NLRB v. Whitinsville Spinning Ring Co., 199 F.2d 585 (1st Cir. 1952). As the Regional Director correctly stated in his report in the instant case,

“. . . under established Board precedents, a ballot will not be invalidated even if irregularly marked, if the marking clearly indicates the voter’s choice.”

The question raised in the instant case is whether the voter clearly indicated a preference against the union although he placed the word “No” on the “Yes” side of the ballot. We think he did.

Only one question was presented on the ballot — whether the voter wished to be represented by the union. In such a situation, the word “No” whether in the “Yes” column or on the reverse side of the ballot expresses a clear preference on the part of the voter. As the Fifth Circuit stated in Titche-Goettinger, supra, in which a ballot was counted where the word “No” appeared only on the reverse side of the ballot,

“The intent to reject Union representation is clear, considering that the only question asked on the ballot is ‘Do you wish to be represented for purposes of collective bargaining by [the Union.]’ ”

In the instant case, the campaigning by management urged the worker to vote “No”; the campaign literature of the union urged the workers to vote “Yes.” Consequently, the vote of “No” meant a vote against union representation, wherever the worker placed the word.

Enforcement denied.