source: Caselaw Access Project

author: TAMM, Circuit Judge:

license: Public Domain

text:
    LABORERS’ DISTRICT COUNCIL OF GEORGIA AND SOUTH CAROLINA, affiliated with Laborers’ International Union of North America, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Southern Frozen Foods, Inc., Intervenor.
    No. 73-1341.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 5, 1974.
    Decided July 19, 1974.

      Jules Bernstein, Washington, D. C., with whom Robert J. Connerton and Arthur M. Schiller, Washington, D. C., were on the brief, for petitioner.
    Vivian A. Miller, Atty., N.L.R.B., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliot Moore, Asst. Gen. Counsel, and Robert A. Giannasi, Atty., N.L.R.B., were on the brief, for respondent.
    Walter O. Lambeth, Jr., Atlanta, Ga., for intervenor. Warner S. Currie, Atlanta, Ga., also entered an appearance for intervenor.
    Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.
   TAMM, Circuit Judge:

This is an action under § 10(f) of the National Labor Relations Act (hereafter “the Act”) to review a Decision and Order of the National Labor Relations Board (“the Board”). The Board’s Order of March 28, 1973 held that the conduct of Intervenor Southern Frozen Foods, Inc. (“the Company”) during an organization campaign conducted by Petitioner Laborers’ District Council of Georgia and South Carolina, Affiliated With Laborers’ International Union of North America, AFL-CIO (“the Union”) did not violate § 8(a)(1) of the Act. For the reasons stated below we affirm the decision of the Board and deny the Petition to Review.

The Company operates two frozen food vegetable processing plants in Montezuma, Georgia, which average 650 employees. In October, 1971, the Union filed a petition with the Board seeking to represent the Company’s production and maintenance employees. An election, held in December, 1971, resulted in 310 votes for the Union, 20 votes for an intervening union, and 304 votes for “no union.” No one choice on the ballot having received a majority, the Board directed that a runoff election be conducted.

Prior to the runoff election the Union filed an unfair labor practice charge with the Board, alleging that the Company had violated § 8(a)(1). In the runoff election, held January 22, 1973, the Union again failed to gain a majority of votes cast. The Union filed objections to the election, however, the representation case was severed and remanded to the Board’s Regional Director before the instant unfair labor practice case was sent to the Board for decision and there are no representation issues before us for review.

A hearing was held May 3-4, 1972, and the Administrative Law Judge found, inter alia, that the Company had violated § 8(a)(1) by distributing certain campaign literature to its employees between November 3, 1971 and January 27, 1972. The A.L.J. also found that a certain speech from the management supervisor to several employees violated the Act. Lastly, he found that one employee was threatened with discharge because of her union activities.

The Board on review, found: 1) that with one exception the Company’s literature was a permissable exercise of free speech and not violative of the Act; 2) that the supervisor’s remarks did not violate the Act; and 3) that the employee was not unlawfully threatened.

The Union now petitions for review asserting that the Board committed error in finding that the Company had not violated § 8(a)(1) of the Act in the various ways enumerated above. We will treat each alleged violation separately.

A. Campaign Literature

The organization campaign was characterized by the Board as “a heated campaign typified by sharp conflicts of interests.” 202 NLRB No. 92 at 9. Both sides actively campaigned, distributing much printed material in the form of leaflets, letters, posters, and crudely drawn pictorial appeals which for want of a better name may be called “cartoons.” Of all the material circulated by the Company, four items are of particular importance: a letter from the Company president to all employees dated January 5, 1972 ; a similar letter dated January 14, 1972 ; a third letter dated January 24, 1972 ; and a cartoon distributed January 21, 1972. The Administrative Law Judge found specifically that these individual items

. were not predictions “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.” Rather they directly conveyed that Respondent would “take action solely on [its] own initiative for reasons unrelated to economic necessities and known only to [it]” to resist demands for changes that Respondent might make in the absence of a union and leave the Union with a strike as its only alternative carrying with it the probable result of loss of jobs or a plant shutdown. The conclusion follows that Respondent intended “to threaten to throw employees out of work regardless of the economic realities,” if the Union won the election. I find that Respondent’s written communications to its employees during the pre-election period violated Section 8(a)(1) of the Act as alleged in the complaint.

J.A. I. at 28 (citations omitted). As to the bulk of other items distributed by the Company, the Administrative Law Judge found that “the express content of [the above enumerated letters] was not repeated in [the Company’s] other literature, but the campaign literature otherwise served only to reinforce them.” Id. at 27.

The Board, in its review of the whole campaign, focused on the aforementioned four communications upon which the A.L.J. had relied to find specific unlawful Company threats of reprisal. The Board stated:

In our view, a reading of the entire record does not support the Administrative Law Judge’s conclusion that the above-mentioned pieces of literature distributed on January 14, 21, and 24, along with others, constituted a threat that Respondent would throw its employees out of work regardless of the economic realities if the Union won the election. Respondent’s communications at most represent one side of a heated campaign typified by sharp conflicts of interests. We note that from time to time the Union replied in an equally vigorous, partisan, and aggressive manner. Accordingly, we find on the basis of the totality of the campaign that with the exception of the January 5, 1972 letter Respondent’s literature did not contain unlawful threats of retaliation if the Union were selected to represent the employees but rather were recitals of Respondent’s beliefs regarding demonstrable economic consequences which could possibly flow from unionization. As such, the statements are protected by Section 8(c) of the Act. Accordingly, we shall dismiss the complaint except as it relates to the January 5 letter.

202 NLRB No. 92 at 9-10. Section 8(c), the provision relied upon by the Board reads as follows:

(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

The Union here argues simply that the A.L.J.’s findings were correct and that the “Board erred grievously in reversing [the A.L.J.’s] conclusions . ,”. The Union states that in its communications, the Company “repeatedly stressed the likelihood of the plant closing in the event of unionization, although it did absolutely nothing to demonstrate any objective basis for this prediction.” The Union does not, however, direct us to any specific language from company letters, leaflets, or cartoons by which to illustrate threats or coercion on the part of the Company. We therefore take it that the Union here reasserts the views of the A.L.J. as to which specific company communications were unlawful, and shall review the findings of the Board as to those specific items.

It is well established that an employer has a right to express his opinions and to predict unfavorable eonse-v quences which he believes may result from union representation. Such predictions or opinions will not violate the Act if they have some reasonable basis in fact and are in fact predictions or opinions and not veiled threats of employer retaliation. In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) the Court enumerated the standards to be used in evaluating an employer’s pre-election statements.

But we do note that an employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board. Thus, § 8(c) (29 U.S.C. § 158(c)) merely implements the First Amendment by requiring that the expression of “any views, argument, or opinion” shall not be “evidence of an unfair labor practice,” so long as such expression contains “no threat of reprisal or force or promise of benefit” in violation of § 8(a)(1).
Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. ... If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. [A]n employer is free only to tell “what he reasonably believes will be the likely economic consequences of unionization that are outside his control,” and not “threats of economic reprisal to be taken solely on his own volition.”

395 U.S. at 617-619, 89 S.Ct. at 1941 (citations omitted). See also Amalgamated Clothing Workers of America v. NLRB, 137 U.S.App.D.C. 330, 424 F.2d 818 (1970); NLRB v. Lenkurt Electric Company, 438 F.2d 1102 (9th Cir. 1971); Automation & Measurement Division, Bendix Corp. v. NLRB, 400 F.2d 141, 144-145 (6th Cir. 1968); Truck Drivers and Helpers Local No. 728 v. NLRB, 124 U.S.App.D.C. 289, 364 F.2d 682 (1966).

Turning first to the letter of January 24, 1972, there is substantial evidence to support the Board’s finding that it carries no threats or coercive language. It begins by encouraging all employees to vote. It mentions the honor and honesty of the author, “the importance of keeping his word” to his employees. The letter makes an appeal to loyalty, stressing that the employees and the Company will share equally in both the good and the bad which may come in the future. It continues to the effect that the Company has helped its employees in the past and will, pledges the author, continue to do its very best for them in the future. The only slightly aggressive language is the request “don’t let an outsider change all of that.” We must ascertain whether this letter has an apparent tendency to coerce when viewed in the context of a labor relations setting. In our view, there is substantial evidence to support the finding of the Board that the letter indicates the Company. intended to continue its past policy of caring about its employees and that by so doing, it would try to give employees more than would the Union. The Board reasonably concluded that the letter contains no express or implied threats of retaliation.

The letter of January 14, 1972, states that the Union would require dues; that the Company did not have to agree to any Union proposal; that the Union may have to strike; that strikers could be replaced; that the Company had already granted all wage increases permitted under the wage price guidelines then in effect. The letter then stated that other Union plants had experienced strikes and that “we know of some customers we would lose if the Union caused us to up our prices.” Finally the letter referred to “what has happened at Seabrook,” a reference to a reduction in work force at another Sea-brook-owned plant in New Jersey following the imposition of union work restrictions concerning the simultaneous handling of fresh and frozen foods. These Union rules resulted in a work reduction in New Jersey and a transfer of work to Southern’s Georgia plant.

We believe that the Board was correct when it found that the letter of January 14, 1972 was not a threat that the Company would remove employees from the job regardless of economic realities should the Union prevail. The letter contained statements which the Board could find not coercive and which the employer had a right to state. The reference to the possibility of a strike was a reference to possible union action, not Company action, and thus is protected by 8(c) since it had a reasonable basis in fact. The reference to “some customers” who would be lost if prices were increased was not a prediction of business disaster as it did not identify those customers as significant to the Company. Indeed the Company had consistently predicted full production. The letter’s reference to the “Seabrook” incident was a factually accurate statement. In sum, we believe the record amply supports the finding that these employer statements were based on objective facts and conveyed the Company’s reasonable belief as to possible economic consequences of unionization beyond the Company’s control. See Gissel, supra, 395 U.S. at 618, 89 S.Ct. 1918; NLRB v. Lenkurt Electric Company, 438 F.2d 1102 (9th Cir. 1971); NLRB v. River Togs, Inc., 382 F.2d 198 (2d Cir. 1967).

Turning finally to the cartoon of January 21, 1972, we believe that there exists substantial evidence to support the Board’s finding that the “closed” sign on the plant depicted in one of the six drawings does not constitute a serious threat that the Company would close in retaliation for a union vote. This is especially true since the Company specifically stated its desire to “use [the plant] to the fullest” regardless of the election’s outcome. At the most, the “closed” sign could be read as the result of the “fight” (i. e. strike) which unionization might precipitate; it does not represent a threat to close the plant.

B. Speech by Mr. Kato Harvey

Mr. Kato Harvey was assistant manager of the Company’s poly-repack department. Several times during the several pre-election periods he spoke to the workers in his department. Both the complaint and evidence received focus upon the last of Mr. Harvey’s speeches, the exact date of which is unknown. The testimony concerning the contents of the speech was confused and conflicting, and the A.L.J. chose to credit Mr. Harvey’s recollection of the speech while discrediting the testimony of other witnesses.

The A.L.J. found and the Board accepted the following: Mr. Harvey told the employees that he worked as a supervisor and therefore that he “had to be for the Company.” He expressed his wish that they would feel the same. He stated his belief that Company employees generally did “all right” and thay they would continue to do so without a union. He also spoke about the possibility of the loss of the poly-repack turnip packaging operation. Previously, this packaging had been done at the parent company’s New Jersey plant but a union contract concerning the handling of mixed fresh and frozen produce caused the work to moved to this Company’s plant. Mr. Harvey testified concerning his remarks as follows:

Q. All right. So was there anything else?
A. Anything else I told them ?
Q. Right. At that time.
A. Well I told them about the — together were putting up about seventy-eight million pounds of turnips with roots and so that that handline was doing about seventy-five percent of them. And also I thought if they cut that out, that was sort of hurt their jobs.
Q. What do you mean “if they cut that out,” Mr. Harvey ?
A. If they cutting out putting up turnips with roots in the poly repack, they wouldn’t have much to do, wouldn’t stay in business.
Q. Had anything happened that made you think they might cut out the roots ?
A. Well I was told that they were putting up turnips with roots up at Seabrook Farms and also — and also if the Union come in, they may cut that out at Southern Frozen Foods.

J.A. I. at 104-05.

A. So I told the people that worked in my department they had enough turnip roots for three weeks, I mean they behind. And if they cut that out, they was cutting their job and so that mean that why they not putting the turnip roots at Seabrook the time the Union come in. And I figure if the Union come in here, that’ll come out with your work. That’s what I meant.
Trial Examiner: That’s what you said to the people ?
The Witness: That’s right. That’s what I said.
Q. (By Mr. Currie) Did you give any explanation of how or why the union cut out the turnip roots at Sea-brook ?
A. Well they said they didn’t allow them to mix together like we was doing down here.
Q. Didn’t allow them to mix them together.
A. Yes, sir, like we was doing.

J.A. I. at 109.

Q. (By Trial Examiner) Well did you say anything about why the turnips would be cut off or when the turnips would be cut off ?
A. I didn’t say' they was gonna be cut off, I say if they be cut off. I didn’t say that they was, I say they had been cut off in Seabrook. We was putting up Seabrook’s turnips for them.

J.A. I. at 123.

The record further revealed, and the Board found, that on January 10, 1972, the Company mailed a letter to all employees which contained a reference to the job reductions at Seabrook, New Jersey. It read in pertinent part:

At the New Jersey plant the company is restricted from running frozen and fresh vegetables together. They don’t run turnips and greens as we do. If we were restricted like this, we would not run the 7,500,000 pounds of turnips and greens we ran in 1971. Think how many hours of work and jobs would be lost. Also, if the union by unreasonable demands caused us to stop running any particular products, we would have to permanently lay off people. What would this do to you? We know the men could probably travel to other towns for jobs, but what jobs could the women get?

J.A. II. at 38.

On the basis of this evidence, the A.L. J. concluded that Mr. Harvey’s remarks “conveyed a threat of reprisal and violated Section [8] (a)(1) of the Act.” The Judge stated his reasons for this finding to be that Mr. Harvey’s remarks were “not a reasoned and factual statement of what had happened in New Jersey” and that the remarks implied that if the Union were to prevail, the poly-repack operation might be lost “for reasons unrelated to the economic necessities or any contract the Union might negotiate.” The A.L.J. did not accept the proposition that the January 10 letter dispelled or nullified any possible threat contained in Mr. Harvey’s speech because the letter did not mention Mr. Harvey’s remarks and did not fully explain the work restrictions.

The Board found that:

In our view, Harvey’s remarks are ambiguous and do not clearly imply a threat that a union victory would automatically be followed by a loss of employment. Harvey’s statements especially when taken together with Respondent’s January 10, 1972, letter, do nothing more than raise the possibility that if the Union came in it could conceivably restrict Respondent the way it had restricted the parent company in New Jersey, with the result that the turnips would be packed elsewhere. Considering the totality of statements concerning the turnip operation, we are not prepared to say that Respondent’s communications threatened employees with loss of employment. Accordingly, we find such remarks permissible and not violative of the Act.

202 NLRB No. 92 at 7.

We believe that the decision of the Board was a permissible one, supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In so holding, we again recognize that the Board’s findings must be accorded great weight because they carry the “authority of an expertness.” Id. at 488, 71 S.Ct. 456. We recognize that it is the Board’s duty “in the first instance to judge the impact of utterances made in the context of the employer-employee relationship.” Gissel, supra, 395 U.S. at 620, 89 S.Ct. at 1943. We believe the Board could correctly find that Mr. Harvey's remarks when considered with the Company’s January 10th letter did no more than suggest the possibility that a Union victory could result in work restrictions leading to the loss of employment. This is what occurred in the New Jersey plant after unionization. Therefore we find that these predictions were “carefully phrased on the basis of objective fact to convey [a Company] belief as to demonstrably probable consequences beyond [its] control . . .” and are thus lawful under Gissel, supra, 395 U.S. at 618, 89 S.Ct. 1942. The Company is permitted to inform its employees of the possible adverse economic consequences of their vote which might arise from demonstrable Union demands or policies. See, e. g., NLRB v. Lenkurt Electric Co., 438 F.2d 102, 105-108 (9th Cir. 1971); NLRB v. River Togs, Inc., 382 F.2d 198, 201-202 (2d Cir. 1967).

C. Mr. Studdard’s Remarks to Ms. Butler

Ms. Mollie Butler was an employee in the poly-repack department. About a week prior to the first election, Ms. Butler was summoned to the office of the department supervisor, Mr. Kato Harvey. There, with Mr. Harvey present, Mr. Studdard, Company Personnel Director, informed Ms. Butler that there had been complaints about her “running her mouth on the line about the Union.” Mr. Studdard told Ms. Butler that he did not care how she felt about the Union, that she could talk about it on her break time or her lunch time, but not on the line during working periods. Mr. Studdard informed her that if her behavior occasioned similar complaints in the future, she would be dismissed.

The A.L.J., after making these findings of fact, found that Ms. Butler “was warned only against talking about the Union during working time and threatened with discharge should she again do that.” In so doing, he rejected Ms. Butler’s contention that the warning was against any pro-union conversation anywhere within the plant at any time. The A.L.J. found a violation of § 8(a)(1) of the Act because Ms. Butler was threatened with discharge not for the purpose of prohibiting her talking in general during working time, but to stop her from talking about the Union in particular.

The Board disagreed with the legal consequences of the facts as found by the A.L.J. The Board stated in this regard :

The evidence shows, and the Administrative Law Judge found, that Stud-dard’s warning to Butler followed a conversation Studdard had with Trice on the previous day wherein Trice informed him that Butler’s talking about the Union while working was disturbing another employee who had complained and did not want to hear about the Union. While there is no evidence that any other employees who were regularly told to stop talking were threatened with discharge for failure to comply, there is no evidence that their talking had interfered with the work of others. Since Butler’s talking prompted a complaint from a fellow worker, Respondent could for legitimate business reasons have required that she stop talking during worktime. Studdard’s warning referred only to worktime and made it clear that at other times Butler was free to talk about the Union. As there is no evidence that would otherwise indicate discriminatory enforcement of Respondent’s prohibition against talking while at work, we shall dismiss this allegation of the complaint.

202 NLRB No. 92 at 3.

We think that the Board’s findings are reasonable and supported by substantial evidence. Ms. Butler was clearly assured that she could speak out for the Union at all times and in all places other than the production line. We agree with the Board that an employer can make and enforce “reasonable rules covering the conduct of employees on company time. Working time is for work.” The Company has such a rule against talking on the job and absent proof of discriminatory anti-union application, it is a lawful rule. The Company had a legitimate interest in stopping Ms. Butler’s pro-union comments on the line when other employees had made complaints.

For the reasons stated above we find that the Petition to Review was properly denied. The order here under review is therefore

Affirmed.

      . 29 U.S.C. § 160(f) (1970).

      . Board Case No. 10-CA-9374, reported at 202 NLRB No. 92 (1973), 82 LRRM 1642 (1973).

      . “Sec. 8. (a) It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 . . ..”

      . 213 votes pro-union; 344 votes “no union”. Br. of Petitioner at 3.

      . 202 NLRB No. 92 at 1 n. 1.

      . Although the briefs were silent on the reason for the severance, it is clear that there is no judicial review of the Board’s § 9 certification decisions, unless they are “incidental to review of an order restraining an unfair labor practice under § 10.” A. F. of L. v. NLRB, 308 U.S. 401, 410, 60 S.Ct. 300, 304, 84 L.Ed. 347 (1940). The Board has been entrusted with complete control of election proceedings. Excelsior Laundry v. NLRB, 409 F.2d 70 (10th Cir. 1968).
      The Board conducted a second runoff election August 29, 1973, and counsel informed this court during oral argument that again the Union failed to receive a majority, gaining but 123 votes out of 379 cast.

      . The decision of the Administrative Law Judge is found at Joint Appendix, Volume I at 3-38. (Hereafter J.A. I.)

      . The Board found that a letter from the Company President to all employees, dated January 5, 1972 (see note 10 infra), contained a threat that the Company would be less responsive to tlie employees should they elioose the Union. 202 NLRB No. 92 at 8, 10; J.A. II. at 11. The Board concluded that this letter violated the Act and ordered the Company to cease and desist therefrom and to place an appropriate notice to all employees. 202 NLRB No. 92 at 10-11. The Company has voluntarily complied with this order and therefore the Board has not petitioned for enforcement.

      . 202 NLRB No. 92 at 3, 5, 9-10.

      . January 5, 1972
      Dear Fellow Employee:
      We have been advised that our next union election is scheduled for January 27, 1972. The polling places will be the same as before.
      The time has come for us to talk turkey. We know we need to make some changes, and we will once we get this union mess out of the way. The plain facts are the union can not do anything for you to make this a better place to work or get you more money.
      Put yourself in our position: If you have a friend who is appreciative of what you try to do for him and another who makes demands — which one of them are you going to help the most? The answer is obvious — we are human the same as you are. If we are going to continue to grow and maintain our operation providing jobs in Montezuma, we must have your help. You probably have not looked at the company’s side of the situation — but you should. Believe me, what is good for the company is good for you. Having a union would not be good for the company — so it can not be good for you.
      The best thing you can do — if your future is here in Montezuma and you plan on making a career working for Southern Frozen Foods — is to vote this union out of here once and for all. When that is done all of us can get back to the business at hand — trying to make a profit which is where whatever benefits you and I enjoy come from.
      If you have any question about what has been said above or anything else pertaining to this company or your situation, ask me, your supervisor, or your department head.
      Sincerely,
      /s/ Preston Preston Williams President
      J.A. II. at 11.
      The Board held that this letter constituted a violation of § 8(a) (1). See note 8 supra.

      . January 14, 1972
      Dear Fellow Employee:
      Some of you have asked why the Company people don’t visit you at your homes as the Union has been doing. The rules keep us from visiting your home. We can only write you or talk to you at the plant.
      You do not now pay union dues. You are now receiving yearly wage reviews and including your fringe benefits. The Union wants you to pay $6.50 a month in dues. What will they guarantee you for your money?
      If they give you a promise or guarantee, how can they carry it out? Your Company doesn’t have to agree to anything the Union proposes. We won’t agree to anything we feel is bad for you or the Company. The only thing the Union can do about it is try to force us by a strike. If you strike we have the right to replace you. Strikes only happen in Union plants. The Union would have to get you an extra $6.50 a month for you to even break even. Your Company has given all the raise Phase 2 of the wage freeze allows. No one knows when the freeze will end. We appreciate your help in making the Company what it is. We feel that we would never do more for Mr. Bartlett than we would do for you voluntarily.

        Several people have asked why we are against the Union. We are against the Union because we know they can wreck the Company and reduce the number of jobs. We have all seen what has happened at Seabrook. We don’t want that here. We don’t know of a single plant where more jobs have been created by a union. We don’t know a single customer that the Union can get us. We do know of some customers we would lose if the Union caused us to up our prices.
      Mr. Bartlett doesn’t care about layoffs. Union dues are only paid by the people working. Mr. Bartlett can’t create any jobs.
      His union has lost so many elections in Georgia this year they are desperate for new members. Don’t be misled by false promises. We are going to continue to manage this business — Protect Your Future-Vote “NO.”

      Sincerely,

        /%/ Preston Williams Preston Williams President
      J.A. II. at 12.

      . January 24, 1972
      Dear Fellow Employee:
      Because of our short work schedule at this time it is going to be impossible for me to see some of you before the election on Thursday, January 27, at 3:00 P.M. Let me encourage you to make every effort to come and to vote — do not leave this decision to someone else to make for you.
      We have been told that the Laborer’s have people going house to house. We cannot do this — if we could — we would be sending you people you could trust with facts, not wild promises. What I have told you in the past — I have done and nobody is going to change my attitude about the importance of keeping my word.
      We are bound together by such ties that whatever happens to any one of us should affect every other one of us. Any good fortunes and successes the Company has should cause you to experience a new sense of joy since you will share in that success through our being in position to do more for you. At the same time our disappointments and failures can only bring regret to the Company and to you. Each of us has a responsibility to be concerned — I am — and I hope you are.
      We all have our faults and certainly we have all experienced many failures. No one is kidding me and I don’t want someone else to try to kid you into believing that what the union is offering is better than my intents — which have been proven. We need each other — the way our system is today my help is always available — don’t let an outsider change all of that.
      Those of you who are wise, and I honestly feel most of you are, will gratefully accept the concerned efforts of those who really care about you. This is a day when we cannot make it alone. We should be grateful for the unselfish concern of those around us who are not looking to profit at our expense but help solely because they care and are concerned.
      Concern, however, is not enough unless we intend to give ourselves in a real and positive program seeking solution to these problems. I am that concerned and if given the opportunity through your vote on January 27 — I will continue to try to prove to you that all that has been said by me is true.
      Sincerely,
      /s/ Preston Williams Preston Williams President
      J.A. II. at 15.

      . This cartoon depicts three characters: “Preston,” the Company president; “You,” the employee; and “Big Daddy” Bartlett, the Union organizer. The dialogue reads as follows :
      Once there were two people who worked together to build a successful business They were pretty happy until a stranger (who didn’t work to build anything) said to one . . .
      “You poor exploited so and so! You’re not getting enough from the business! ” “Just sign this card and I’ll help you make him give you more.”

        “Then lets you fight him” he said happily
      “If it doesn’t work out I haven’t lost anything.”

        YOU stand to loose, not “BIG DADDY” There is a picture of a building, presumably representing the plant with a sign on it reading “Closed”.
      J.A. II. at 1.

      . Br. of Petitioner at 20.

      . Id. at 21.

      . We note in this regard that the Board here merely disagreed with the A.L.J. as to the inferences and legal conclusions to be drawn from the facts found. In such cases, where a disagreement between the Board and the A.L.J. does not turn on questions of fact or on credibility of witnesses, no special weight need be given to the conclusions of the A.L.J. See, e. g., Sign and Pictorial Union Local 1175, etc. v. NLRB, 136 U.S.App.D.C. 144, 419 F.2d 726, 733-734 (1969) ; Oil, Chemical and Atomic Workers Int. U., Local 4-243 v. NLRB, 124 U.S.App.D.C. 113, 362 F.2d 943, 945-946 (1966) ; NLRB v. Lenkurt Electric Company, 438 F.2d 1102, 1105 n. 3 (9th Cir. 1971).

      . See note 12 supra.

      . See, e. g., Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9 n. 24 (3rd Cir. 1969) ; NLRB v. Standard Container Co., 428 F.2d 793, 794 (5th Cir. 1970).

      . NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

      . 202 NLRB No. 92 at 9.

      . See note 11 supra.

      . Southern Frozen Foods, Inc. (“the Company”) is a subsidiary of Seabrook Foods, which operates food processing plants in several states.

      . See, e. g., Russell-Newman Mfg. Co. v. NLRB, 370 F.2d 980, 982-983, 985 (5th Cir. 1966) ; of. NLRB v. Sonora Sundry Sales, Inc., 399 F.2d 930 (9th Cir. 1968).

      . See, e. g., NLRB v. S. & II. Grossinger’s Inc., 372 F.2d 26, 28 (2d Cir. 1967) ; Don the Beachcomber v. NLRB, 390 F.2d 344, 345 (9th Cir. 1968) ; NLRB v. Transport Clearings, Inc., 311 F.2d 519, 523-524 (5th Cir. 1962) ; NLRB v. Lyman Printing Co., 356 F.2d 844, 846 (4th Cir. 1966).

      . This distinguishes Blaser Tool & Mold Co., Inc., 196 NLRB 374 (1972). In that case the employer stated that one customer who purchased 98% of the total company output would stop dealing with the company should the union prevail.

      . See Letter of December 20, 1971 from Company President to all employees, J.A. II. at 9.

      . See note 13 supra.

      . See note 26 supra.

      . Poly-repack is the process by which a mixture of previously frozen turnip roots and fresh unfrozen turnip greens are packaged for final sale. J.A. I. at 10.

      . The A.L.J. accepted Mr. Harvey’s testimony that he did not remember exactly when lie spoke and found it “unnecessary to pinpoint the exact date . . . for it was clear that it was either in late December or early January and between the [first] two elections.” J.A. I. at 9.

      . J.A. I. at 9, 55-56, 58-62, 68, 70-72.

      . J.A. I. at 9. It is well settled that the credibility resolutions of the A.L.J., especially when accepted by the Board, must normally be accorded great weight on review. See, e. g., NLRB v. Walton Mfg. Co., 369 Ü.S. 404, 407-408, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962).

      . J.A. I. at 9 ; 202 NLRB No. 92 at 6.

      . J.A. I. at 10 ; 202 NLRB No. 92 at 6.

      . J.A. I. at 13 (footnote omitted).

      . J.A. I. at 12.

      . Id.

      . J.A. I. at 13.

      . We note that the Board apparently misconstrued the facts of the New Jersey incident as it referred to “the possibility that if the Union same in it could conceivably restrict [the Oompanyl the way it had restricted the parent company in New Jersey . . . .” 202 NLRB No. 92 at 7 (emphasis added). The facts seem to us to indicate that the Laborers’ International Union involved here was not involved in New Jersey, but rather another union. See Letter of January 10, 1972, J.A. II. at 38. The Union here makes much of the Board’s seeming confusion. See Br. of Petitioner at 27-28. Since we find that Mr. Harvey’s remarks were ambiguous and accept the Board’s characterization of them as non-threatening, we are of the belief that this error in the Board’s opinion is not seriously prejudicial. It is, after all, the speech of Mr. Harvey which did or did not violate the Act.

      . Accord, Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9 (3d Oir. 1969). See also NLRB v. General Industries Electronics Co., 401 F.2d 297, 300 (8th Cir. 1968) ; DubinI-Iaskell Lining Corp. v. NLRB, 375 F.2d 568, 571 (4th Cir.), on rehearing en banc, 386 F.2d 306 (1967), cert. denied, 393 U.S. 824, 89 S.Ct. 83, 21 L.Ed.2d 95 (1968) ; Amalgamated Clothing Workers of America v. NLRB, 124 U.S.App.D.C. 365, 365 F.2d 898, 910 (1966).

      . See, e. g., Russell-Newman Mfg. Co. v. NLRB, 370 F.2d 980 (5tli Cir. 1966) ; ef. P. R. Mallory & Co. v. NLRB, 389 F.2d 704, 707 (7th Cir. 1967).

      . Ms. Freddie Trice, Ms. Butler’s supervisor, had complained to Studdard that another employee had complained of Ms. Butler’s pro-union talk during work hours and asked that it be stopped. J.A. I. at 7.

      . J.A. I. at 6. We note that the A.L.J. specifically rejected Ms. Butler’s version of the incident. J.A. I. at 7, «'editing the testimony of Mr. Studdard which was corroborated by Mr. I-Iarvey. J.A. I. at 6 n. 4.

      . J.A. I. at 6.

      . Id. at 7.

      . Id. at 8.

      . Peyton Packing Co., 49 NLRB 828, 843 (1943), enforced 142 F.2d 1009 (5th Cir.), cert. denied, 323 U.S. 730, 65 S.Ct. 66, 89 L.Ed. 585 (1944).

      . J.A. I. at 7, 97-98; 202 NLRB No. 92 at 3.

      . See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n. 10, 65 S.Ct. 982, 89 L.Ed. 1372 (1945) ; see also TRW, Inc. v. NLRB, 393 F.2d 771, 772 (6th Cir. 1968).

      . Since we here affirm the Board’s finding that only one unfair labor practice was committed by the Company, see note 8 supra; we reject the Union’s contention that a bargaining order should issue. See, e. g., NLRB v. Gissel Packing, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). AVe are of the opinion - that the existence of but one violation of § 8(a)(1) is not the exceptional case where employer unfair labor practices were outrageous or pervasive. There is a broad presumption in favor of the remedy chosen by the Board. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L. Ed. 845 (1941) ; NLRB v. Rutter Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969) ; International Union, United Auto, A. & A. I. Workers v. NLRB, 147 U. S.App.D.C. 289, 455 F.2d 1357 (1971). Given the limited scope of the Company’s unfair labor practice, we think the remedy granted was entirely proper.


author: PER CURIAM:

text:
    Carl H. ALLEY, Petitioner, v. DODGE HOTEL, Respondent.
    No. 74-8016.
    United States Court of Appeals, District of Columbia Circuit.
    July 23, 1974.

      Carl H. Alley, pro se, was on the motion for petitioner.
    Before FAHY, Senior Circuit Judge, and ROBINSON, Circuit Judge.
   PER CURIAM:

This case is before us on a pro se motion under Fed.R.App.P. 24(a) for leave to appeal in forma pauperis the dismissal of an action brought by the movant, Carl H. Alley, against the Dodge Hotel and its management company, Norman Bernstein Management, Inc. (Bernstein Management). Alley filed a similar motion in the District Court, which was denied on the grounds that the appeal was frivolous and that the motion was untimely.

We find that the appeal raises nonfriv-olous' issues, and we remand the record to the District Court to enable reconsideration of the timeliness of the motion in light of the principles set forth in this opinion.

I

On August 16, 1972, Alley filed a complaint pro se against the Dodge Hotel and Bernstein Management seeking damages for injuries he allegedly sustained when, on two different occasions, a man entered his room in the hotel and assaulted him. The complaint averred frequent attempts by Alley to obtain compensation for these injuries from the management company, numerous assurances made by the company and its insurers that payment was forthcoming, and their ultimate failure to fulfill those promises.

On motion by Bernstein Management, the District Court dismissed the action as to it on October 5, 1972. Bernstein Management had contended that the complaint failed to state a claim for which relief could be granted, and that the action was barred by the statute of limitations because, according to its records, the assaults occurred in 1967, not “approximately three years” prior to the date of the complaint as Alley had alleged.

An appeal brought by Alley from the October 5 order was dismissed for lack of jurisdiction. This court concluded that the District Court’s dismissal of the action only as to one of the defendants was not a final order under 28 U.S.C. § 1291, and therefore was not appealable in the absence of an order by the District Court directing the entry of a final judgment as to Bernstein Management in accordance with Fed.R.Civ.P. 54(b). Alley v. Dodge Hotel, No. 72-2093 (D. C.Cir., Mar. 20, 1973).

Three days later, Alley filed in the District Court the first of a series of motions, which may reasonably be construed as a motion for a default judgment against the Dodge Hotel for its failure to answer the complaint. This motion was denied by the District Court without any statement of reasons on April 16, 1973. A second motion, again complaining of the hotel’s refusal to respond, was similarly denied without accompanying reasons. Thereafter Alley filed two motions to “advise the court” in which he protested the court’s asserted failure to permit his claim to be litigated, and charged various judges of this court and the District Court with unethical behavior. On the basis of these motions, the District Court, on November 20, 1973, dismissed the action “as frivolous and defamatory.” The court subsequently denied leave to appeal the dismissal in forma pauperis, concluding that the appeal was untimely and frivolous.

II

Any approach to problems presented in Alley’s lawsuit must yield consideration to the fact that he is a pro se litigant untrained in the law. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Johnson v. United States, 132 U.S.App.D.C. 4, 405 F.2d 1072 (1968); Roberts v. Pegelow, 313 F.2d 548 (4th Cir. 1963). The Supreme Court has declared that pro se complaints are to be held “to less stringent standards than formal pleadings drafted by lawyers, . . . ” Haines v. Kerner, supra, 404 U.S. at 520, 92 S.Ct. at 596, and, moreover, that no litigant’s complaint may be dismissed under Fed.R.Civ.P. 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

Neither the motion to dismiss filed by Bernstein Management nor the District Court’s order of October 5, 1972, granting the motion articulated why it was thought that Alley had failed to state an actionable claim. If the complaint did not allege sufficient facts which would support such a claim, it is conceivable that the deficiency could have been rectified by amendment. And dismissal on the ground that the statute of limitations had run would have been improper if the date of the assaults was a fact genuinely disputed by the parties. When this court concluded that it was without jurisdiction to entertain an appeal from the dismissal of only one defendant, Alley’s understandable, and indeed justifiable, response was an attempt to obtain judgment in his fayor by default, since the hotel had never responded to his complaint. His effort was met with an unexplained denial by fiat and, apparently out of frustration, Alley then filed the caustic motions léading to the dismissal of his action on November 20, 1973.

Alley’s complaint may prove spurious and, even if amended, it may not state an actionable claim, but those possibilities are matters not now before us. What is pertinent to the instant motion is that the order of dismissal of Berstein Management and the subsequent orders leading to ultimate dismissal of the action raise nonfrivolous issues. The further question with which we are faced is whether jurisdiction over the appeal is precluded by the timing of Alley’s motion for leave to appeal in for-ma pauperis, and it is to an analysis of that issue that we now turn.

Ill

The jurisdiction of this court to review orders of the District Court in civil cases is defined in part by Fed.R. App.P. 4(a), which provides that “the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from. . . . ” While a motion for leave to appeal in forma pauperis may serve as a notice of appeal, Johnson v. United States, supra, 132 U.SApp.D.C. at 5 n. 6, 405 F.2d at 1073 n. 6, its filing is subject to the same time restrictions applicable to a paid appeal. Id. Despite the initial deadline of 30 days, Rule 4(a) expressly authorizes the district court to extend the time for filing for a period not to exceed 30 days from the expiration of the initial period “[u]pon a showing of excusable neglect.”

Since timeliness in noticing appeals is “mandatory and jurisdictional,” compliance with applicable requirements “is of the utmost importance.” Certainly a scrupulous satisfaction of the formal specifications of rules governing appeals is good practice and good sense; indeed, some courts have demanded strict performance by would-be appellants. But it is clear beyond cavil that Appellate Rules 3 and 4 tolerate a common sense approach to timely filing, and do not insist upon “literal compliance in cases in which it cannot fairly be exacted. . . . ” We think a filing requirement is met by a positive, substantial and unequivocal effort to discharge it, and that innocuous irregularities incidental to such an endeavor should be disregarded when considerations of fairness dictate that course. We agree with the Fifth Circuit that “it would . . . be a harking back to the formalistic rigorism of an earlier and outmoded time, as well as a travesty upon justice, to hold that the extremely simple procedure required by the [rules] is itself a kind of Mumbo Jumbo, and that the failure to comply formalistically with [them] defeats substantial rights.”

With these considerations in mind, we analyze Alley’s efforts to perfect his appeal. The order dismissing this action was entered on November 20, 1973. Hence the initial 30-day period for noticing an appeal closed on December 20. The period during which Alley could have sought an extension of time showing excusable neglect expired on January 21. The notice of appeal and Alley’s affidavit of poverty bear the stamped date January 22, 1974, as the date of filing in the District Court. Thus the stamped date was not only beyond the initial 30-day period, but was also one day in excess of the additional period of 30 days.

Although the date of filing appears officially as January 22, Alley dated his notice of appeal January 21. The same date was also inscribed by a deputy clerk of the District Court on the affidavit of poverty as the date on which the affidavit was sworn to and subscribed before her. As we have said, the appeal period was extendable to January 21, although not to January 22. The record does not disclose when the two documents were actually received by the District Court for filing, or otherwise explain the discrepancy between the two dates. Surely we cannot confidently conclude on the basis of the present record that the delay of one day in filing was attributable to Alley. See Fallen v. United States, 378 U.S. 139, 143, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). In these circumstances, we adopt an approach similar to that employed by the Fifth Circuit in Weaver v. Texas, 469 F.2d 1314 (5th Cir. 1972), and remand the record to the District Court for an inquiry into the reasons for this discrepancy. Unless the evidence shows that the one-day delay was caused by Alley, then it should correct its records to indicate that the two documents were received for filing and should have been filed on January 21, 1974.

Even if the District Court concludes that the one-day delay in filing was the clerk’s responsibility, the question would still remain whether Alley’s appeal must fail because he did not seek an extension of time until that date. Alley offered no explanation to the District Court for his tardiness, but had the District Court explored with him any possible justification for the delay, he may have been able to demonstrate that the lack of punctuality was not entirely his fault. The District Court made no effort to aid this pro se litigant, but simply denied the motion by fiat.

In Johnson v. United States, supra, we were confronted with a similar problem in connection with a pro se motion for leave to appeal in forma pauperis from a criminal conviction. There the motion was filed after the expiration of the 10-day period applicable to criminal appeals without an accompanying explanation for the delay. We noted:

Our unrepresented petitioner’s unpunctuality may or may not have been excusable. The mere fact that he did not advance some cause for the delay is a shaky predicate for judicial action tantamount to a determination that the delay was inexcusable; an equally valid assumption was that he simply was not knowledgeable on the subject. Moreover, as we have frequently held, the endeavors of lay litigants are not to be scrutinized for the precision expected of members of the bar. In sum, the unskilled defendant cannot safely be depended upon to allege excusable neglect even where it is to be found. If the amendment to Rule 37(a)(2) is to have real meaning, and excusable tardiness is not to defeat meritorious appeals the court must itself delve for the truth of the matter.

Accordingly, we held that a motion for leave to appeal in forma pauperis “may not be dismissed as untimely without an invitation and an opportunity to show that the tardiness is excusable,” and that “a formal hearing will become necessary if the facts are in dispute.” 132 U.S.App.D.C. at 6, 405 F.2d at 1074.

In view of the hospitable approach which generally must be taken with respect to pro se litigants, we perceive no reason why the same considerations do not surround civil appeals. Accordingly, we hold that in all cases where a civil litigant unaided by counsel files a motion for leave to appeal in for-ma pauperis beyond the initial deadline, but within the period of extension permitted by Rule 4, the District Court may not deny the appeal as untimely without first inquiring of the litigant whether the delay is due to excusable neglect. If that inquiry raises disputed factual allegations, a formal hearing will be necessary to resolve those disputes.

We remand the record in the case at bar for that inquiry. We note that if the District Court finds the tardiness excusable, it is not precluded from granting Alley an extension of time nunc pro tunc to January 21, 1974 — if that is the date it determines the notice of appeal was actually received for filing — even though the order necessarily would be entered long after that date. We also note that the District Court’s responsibility on this remand extends to the appointment of counsel, if deemed necessary, to assist Alley in substantiating his allegations, if any, of excusable neglect.

So ordered.

      . This initial request to the District Court for leave to appeal in forma pauperis is required by Fed.R.App.P. 24(a), which reads in part:
      A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit showing . . . his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of the issues which lie intends to present on appeal. ... If the motion is denied, the district court shall state in writing the reasons for the denial. . . .
      If a motion for leave to proceed on appeal in forma pauperis is denied by the district court . . . the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. . . .

      . The complete text of the order reads:
      Upon consideration of the Motion to Dismiss filed herein the 21st day of September, 1972, by Norman Bernstein Management, Inc., defendant, and the opposition thereto filed herein the 29th day of September, 1972, by Carl II. Alley, plaintiff, it is this 5th day of October, 1972,
      ORDERED that the Motion of Norman Bernstein Management, Inc. to Dismiss be and hereby is granted and this cause is dismissed as to the defendant, Norman Bernstein Management, Inc.

      . Reproduced in full, the text of the motion to dismiss states:
      Comes now the defendant Norman Bernstein Management, Inc. and moves the Court to dismiss the action because it fails to state a claim upon which relief may be granted. In support thereof it refers the Court to the Points and Authorities attached hereto and prayed to be read as a part hereof.

        The “Points and Authorities” are, in toto, as follows:
      Rule 12, Federal Rules of Civil Procedure.
      District of Columbia Code, Title 12-201 [sic — 12-301],
      It is clear from reading the so called “Bill of Complaint” that plaintiff has failed to state a claim upon which relief may be granted. Additionally, although plaintiff says that the incident complaint [sic] of happened approximately three years before filing the action, this defendant’s records indicate that the incident involving the plaintiff actually occurred back in 1967. This case would therefore be barred by the statute of limitations.
      As an action seeking recovery for personal injury, the period for bringing the action under D.C.Code § 12-301(8) would be three years from the time the right to maintain the action accrued. Marusa v. District of Columbia, 157 TJ.S.App.D.C. 348, 353, 484 F.2d 828, 833 (1973).

      . Fed.R.Civ.P. 54(b) provides:
      When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

      . The motion, which plaintiff styled as a “Motion of Forfeiture against the Dodge Hotel,” noted the hotel’s failure to answer the complaint and asked the court to serve the hotel with a “summons of forfeiture.”

      . The order was inscribed by a district judge on the complaint and reads: “11/20/73 Dismissed as frivolous and defamatory, re motions filed May 30, 1973, and Oct. 17, 1973.” The motions cited were those styled “Motions to Advise the Court.” No further reasons were given.

      . The order did not explicate the conclusion of frivolity, despite this court’s decision in Davis v. Clark, 131 U.S.App.D.C. 379, 404 F.2d 1356 (1968). In a separate opinion, Judge Tamm clarified the district judge’s task under Fed.R.App.P. 24(a), supra note 1:
      The statement of reasons should be more than a simple conclusion. If the denial of leave to appeal is because appellant cannot be deemed in good faith because his claim is frivolous, the statement of reasons should explain why the claim is frivolous. If the finding rests on considerations of fact, appropriate record citations might be given. If it rests on a matter of law, the general reasoning and relevant cases should be indicated. Such a requirement is not onerous if the matter was dealt with in a conscientious manner in passing ón the merits. See generally Tatem v. United States, 107 U.S.App.D.C. 230, 232, 275 F.2d 894, 896 (1960).
      131 U.S.App.D.C. at 380-381, 404 F.2d at 1357-1358.

      . See notes 2-3, supra.

      . With additional facts, Alley may have been able to establish an action for negligence under the theory of liability announced by this court in Kline v. 1500 Massachusetts Avenue Apt. Corp., 141 U.S.App.D.C. 370, 439 F.2d 477 (1970) (landlord liable for injuries sustained by tenant from a criminal assault in the common hallways of the building where landlord had notice that tenants were being assaulted and their apartments were being vandalized).

      . Since the District Court chose to dispose of the action as to Bernstein Management by granting the motion to dismiss, it had to accept as true Alley’s allegation of the time of the assaults rather than a defendant’s assertion. Marusa v. District of Columbia, supra note 3, 157 U.S.App.D.C. at 350, 484 F. 2d at 830. Hence, under Alley’s version of the facts, it would not appear that the action was barred by the statute of limitations. See note 3, supra.

      . United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960).

      . Advisory Committee Note to Fed.R.App.P. 3.

      . See, e. g., Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 165-166 (2d Cir. 1946) (service of notice of appeal on party sought to be made the appellee does not constitute filing). There are, too, cases rejecting oral notices of appeal made in open court by the intended appellant or in his presence, though they appear in the transcript of the proceedings. B. g., United States v. Isabella, 251 F.2d 223, 226 (2d Cir. 1958) ; United States v. Temple, 372 F.2d 795, 799 (4th Cir. 1966), cert. denied, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967) ; Smith v. United States, 425 F.2d 173, 174-175 (9th Cir. 1970).

      . Advisory Committee Note to Fed.R.App.P. 3.

      . Jordan v. United States Dist. Court, 98 U.S.App.D.C. 160, 162-163, 233 F.2d 362, 364-365, vacated on other grounds, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (1956) (petition for mandamus in court of appeals) ; Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969) (application for extension of time to file notice of appeal) ; Richey v. Wilkens, 335 F.2d 1, 4-5 (2d Cir. 1964) (notice of appeal in court of appeals rather than district court) ; Frace v. Russell, 341 F.2d 901, 902 (3d Cir.), cert. denied, 382 U.S. 863, 86 S.Ct. 127, 15 L.Ed.2d 101 (1965) (“brief for appeal” in court of appeals) ; Holley v. Capps, 468 F.2d 1366, 1367-1368 (5th Cir. 1972) (motion for certificate of probable cause in habeas corpus proceeding) ; Riffle v. United States, 299 F.2d 802 (5th Cir. 1962) (letter to judge of court of appeals) ; Carter v. Campbell, 285 F.2d 68, 71-72 (5th Cir. 1960) (application to court of appeals for leave to proceed on original record, and grant of such leave) ; O’Neal v. United States, 272 F.2d 412, 413 (5th Cir. 1959) (appeal bond) ; Davis v. Department of Corrections, 446 F.2d 644, 645 (9th Cir. T971) (motion for certificate of probable cause). See also Reconstruction Finance Corp. v. Prudence Securities Advisory Group, 311 U.S. 579, 582-583, 61 S.Ct. 331, 85 L.Ed. 364 (1941), and note 17, infra.

      . The court’s reference here is to former Fed.R.Civ.P. 73(a), now incorporated without change of substance in Fed.R.App.P. 4(a). See Advisory Committee Note to Fed.R.App.P. 4(a).

      . Crump v. Hill, 104 F.2d 36, 38 (5th Cir. 1939). In this case, no notice of appeal was actually filed, but within the appeal period the appellant did procure and file with the clerk the appellee’s written acknowledgement of service of a notice of appeal and of a designation of record, and her entry of appearance to an appeal. It was held that this was a sufficient compliance with Fed. R.Civ.P. 73.

      . The 30th day fell on Saturday, January 19. However, under the time computation rule contained in Fed.R.App.P. 26(a), the “last day of the period shall be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period extends until the end of the next day which is not a Saturday, Sunday or a legal holiday,” which, in this case, was Monday January 21.

      . 28 U.S.O. § 953 (1970) provides the authority to the clerk of the court and his deputies to administer the oath necessary for the affidavit of poverty.

      . See King v. United States, 410 F.2d 1127 (9th Cir. 1969) (pro se notice of appeal from a criminal conviction was timely, even though not officially filed until after the expiration of the 10-day period, where it was signed by the appellant and by the district court within the prescribed period).

      . Fed.R.Crim.P. 37(a)(2), which has been replaced without substantive change by Fed.R.App.P. 4(b). See Advisory Committee Notes to Fed.R.App.P. 4(b).

      . 132 U.S.App.D.C. at 6, 405 F.2d at 1074 (footnote omitted).

      . See also Bryant v. Elliott, 467 F.2d 1109 (5th Cir. 1972) (in an appeal from the denial of a habeas corpus petition, where the notice of appeal was filed beyond the initial 30-day period, the court remanded the case to permit the pro se appellant to move for an extension of time on a showing of excusable neglect).

      . This conclusion is buttressed by the decision in Reed v. Michigan, 398 F.2d 800 (6th Cir. 1968), where an appeal by the state from a successful habeas corpus petition was remanded to the district court for a determination as to whether the lateness in filing was excusable, even though the appellant, who had neglected to allege an excuse for the delay and move for an extension of time, was a governmental entity represented by counsel. See also Evans v. Jones, 366 F.2d 772 (4th Cir. 1966).

      . This inquiry, of course, is contingent upon the District Court’s finding that the failure to file the motion in that court by January 21 was not attributable to Alley. See p. 885 supra.

      . Conway v. Pennsylvania Greyhound Lines, Inc., 100 U.S.App.D.C. 95, 243 F.2d 39 (1957) ; Pasquale v. Finch, supra note 15; C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2d Cir. 1968) ; Reed v. Michigan, supra note 24. But see 9 J. Moore, Federal Practice If 204.13 [2] at 974-78 (2d ed. 1948). As the Second Circuit has observed :
      The time limitation is intended to set a period on which the parties may rely for required action by a litigant, not to dragoon a busy trial court into hasty and ill-considered action by the risk of destruction of appellate rights if the court does not meet the fixed deadline.
      C-Thru Products, Inc. v. Uniflex, Inc., supra, 397 F.2d at 955.


text:
    Peter J. PETKAS, Appellant, v. Elmer B. STAATS, Chairman, Cost Accounting Standards Board.
    No. 73-2153.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 8, 1974.
    Decided July 25, 1974.
    Larry P. Ellsworth, Ronald L. Plesser and Alan B. Morrison, Washington, D. C., were on the brief for appellant.
    Irving Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Leonard Schaitman and Edwin E. Huddleson, III, Attys., Dept, of Justice, were on the brief for appellee.
    Before ROBINSON and MacKINNON, Circuit Judges, and DAVIES, Senior District Judge for the District of North Dakota.

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

   RONALD N. DAVIES, Senior District Judge:

This appeal attacks the holding of the District Court that the Cost Accounting Standards Board (Board) need not reveal to the appellant the Disclosure Statements filed with the Board by Lockheed Aircraft Corporation, International Telephone and Telegraph Corporation, General Motors Corporation and their respective reporting subdivisions, on the grounds the Disclosure Statements fell within the exemption provided by subsection (b) (4) of the Freedom of Information Act (Act), 5 U.S.C. § 552.

The Board was created by Congress to promulgate cost accounting standards designed to achieve uniformity and consistency in cost-accounting principles followed by defense contractors and subcontractors under Federal contracts and was authorized to require defense contractors and subcontractors, as a eondition of contracting, to disclose in writing their cost-accounting principles, including methods of distinguishing direct from indirect costs and the basis used to allocate indirect costs.

The promulgated regulations, 4 C.F.R. § 351.2, et seq., require all defense contractors and their reporting subdivisions who enter into negotiated national defense contracts with the United States in excess of $100,000.00 to submit Disclosure Statements setting forth their cost-accounting principles. The regulations also provide that:

“The Cost Accounting Standards Board will not make disclosure statements public in any case when the contractor files its statement specifically conditioned on the Government’s agreement to treat the Disclosure Statement as confidential information.”

The appellant, Peter J. Petkas, contacted the Board seeking access to designated Disclosure Statements pursuant to § 552(a)(3) of the Act under which “ . . . each agency, on request for identifiable records . . . shall make the records promptly available to any person . . . ”. Contending that the Disclosure Statements were filed conditioned on the Government’s agreement to treat them as confidential and were encompassed within subsection (b)(4) of the Act, which exempts from disclosure “ . . . trade secrets and commercial or financial information obtained from a person and privileged or confidential; . . . ”, the Board denied appellant’s request.

In an action commenced under § 552(a)(3) of the Act seeking to compel disclosure, the District Court, after an in camera inspection of the Disclosure Statements, determined the matter de novo and found that the Disclosure Statements called for full disclosure of the specific cost-accounting principles, practices and methods used by the companies as a contractual base line with the Government; that the underlying formulae upon which defense contractor submitted his bid and cost estimates were revealed and they provided significant insight and analysis of a company’s financial operation; that the data were specialized, tailored particularly to the operations of the reporting company and were important and sensitive financial information; that in view of 4 C.F.R. § 351.5(d), the Government was obligated to treat the information as confidential; and held that the documents were financial or commercial and confidential, and thus fell within the exemption provided by subsection (b) (4) of the Act.

The District Court also found that the fear of the contractors that release of the Disclosure Statements would place the companies at a competitive disadvantage and would deter them from contracting with the Government was not entirely groundless, citing Sterling Drug Company, Inc. v. Federal Trade Commission, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971), and Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App.D.C. 147, 425 F.2d 578 (1970), for the proposition that the Disclosure Statements contained information that would customarily not be released to the public, and thus exempt from disclosure under subsection (b)(4).

“The Freedom of Information Act was conceived in an effort to permit access by the citizenry to most forms of government records. In essence, the Act provides that all documents are available to the public unless specifically exempted by the Act itself. This court has repeatedly stated that these exemptions from disclosure must be construed narrowly, in such a way as to provide the maximum access consonant with the overall purpose of the Act. By like token and specific provision of the Act, when the Government declines to disclose a document the burden is upon the agency to prove de novo in trial court that the information sought fits under one of the exemptions to the FOIA.
“Thus the statute and the judicial interpretations recognize and place great emphasis upon the importance of disclosure.” (Footnotes omitted.) Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed. 2d 873 (1974).

This Court recently considered the issue of what constitutes information that is “confidential” within the meaning of the exemption in National Parks and Conservation Association v. Morton, Secretary, Department of the Interior, et al., 162 U.S.App.D.C. —, 498 F.2d 765 (1974):

“Unfortunately, the statute contains, no definition of the word ‘confidential.’ In the past, our decisions concerning this exemption have been guided by the following passage from the Senate Report, particularly the italicized portion:
“This exception is necessary to protect the confidentiality of information which is obtained by the Government, through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was obtained.
“S.Rep.No. 813, 89 th Cong., 1st Sess. 9 (1965) (emphasis added), cited in Sterling Drug, Inc. v. FTC, 146 U.S. App.D.C. 237, 450 F.2d 698, 709 (1971); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S.App.D.C. 147, 425 F.2d 578, 582 (1970). We have made it clear, however, that the test for confidentiality is an objective one. Bristol-Myers Co. v. FTC, 138 U.S.App.D.C. 22, 424 F.2d 935, 938, cert. denied, 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 52 (1970); cf. Benson v. General Services Administration, 289 F.Supp. 590, 594 (W.D. Wash.1968), aff’d, 415 F.2d 878 (9th Cir. 1969). Whether particular information would customarily be disclosed to the public by the person from whom it was obtained is not the only relevant inquiry in determining whether that information is ‘confidential’ for purposes of section 552(b)(4). A court must also be satisfied that non-disclosure is justified by the legislative purpose which underlies the exemption. Our first task, therefore, is to ascertain the ends which Congress sought to attain in enacting the exemption for ‘commercial or financial’ information.
“In general, the various exemptions included in the statute serve two interests — that of the Government in efficient operation and that of persons supplying certain kinds of information in maintaining its secrecy. * * *”

And went on to hold:

“To summarize, commercial or financial matter is ‘confidential’ for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” (Footnote omitted.)

The District Court there, as well as in the instant case, concluded that the information sought was of the kind “that would not generally be made available for public perusal.” While there is no error in this finding it is not, by itself, sufficient to support application of the financial information exemption. “The district court must also inquire into the possibility that disclosure will harm legitimate private or governmental interests in secrecy. * * * ” National Parks and Conservation Association, supra.

Nor can a promise of confidentiality in and of itself defeat the right of disclosure. Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973); Getman v. N.L.R.B., 146 U.S.App.D.C. 209, 450 F.2d 670 (1971); Ackerly v. Ley, 137 U.S.App.D.C. 133, 420 F.2d 1336, 1339-1340, n. 3 (1969).

The judgment of the District Court is reversed and this matter is remanded for further proceedings consistent with this opinion.

      . Petkas v. Staats, 364 F.Supp. 680 (D.D.C.1973).

      . 50 U.S.C. App. § 2168(a).

      . 50 U.S.C. App. § 2168(g).

      . 50 U.S.C. App. § 2168(h) (1).

      . 4 C.F.R. § 351.4(d).

      . 4 C.F.R. §§ 331.5 and 351.4(d).


author: EDWARDS, Circuit Judge:

text:
    UNITED STATES of America v. Carl T. LEE and Darlene C. Humphries.
    No. 73-1682.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 18, 1974.
    Decided July 25, 1974.
    Roger M. Adelman, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief, for appellant.
    Deborah Jennings Nalls  (Student Counsel) with whom Frank F. Flegal, Washington, D. C. (appointed by this Court), was on the brief, for appellees. Steven Umin, Washington, D. C., entered an appearance for appellee.
    Before EDWARDS,  United States Circuit Judge for the Sixth Circuit, and TAMM and WILKEY, Circuit Judges.

       Entered an appearance as Student Counsel pursuant to Rule 20 of the General Rules of this Court.

       Sitting by designation pursuant to 28 U. S.C. § 291(a).

   EDWARDS, Circuit Judge:

The United States appeals (under 18 U.S.C. § 3731 (1970)) from the grant of a motion to suppress evidence in a narcotics case. The United States District Judge who granted the motion did so because she held that the narcotics agents involved in the warrantless arrest did not have probable cause for arrest. Since we believe that the facts known by the officers before they stopped defendants Lee and Humphries did constitute probable cause for arrest and that prior procurement of a search warrant under the circumstances facing them would have been impossible without the strong probability of the disappearance of the evidence of the crime, we reverse and remand the case for trial.

The arrest of the two defendants followed a lengthy surveillance on the date concerned. Early in the morning, one of the officers (Johnson) had talked to an informant well-known to the law enforcement office with which these officers worked. This informant had supplied reliable information over a period of four years which led to 26 previous arrests. Johnson himself had worked with this informant on three cases which had resulted in warrants for arrest and Johnson also testified that he knew defendant Lee’s reputation as a narcotics trafficker.

In this instance the informant told Johnson that Lee had told him by phone that morning that he was going to make a delivery of narcotics to him (the informant) at a Northeast Washington location that same day. As a result of surveillance by three undercover officers, the officers followed a car in which Lee and defendant Humphries were riding to Northeast Washington. They lost them briefly in Northeast Washington and picked them up again. At that point Johnson received a radio message from headquarters informing him that the informant had called and had said Lee had the material on him now. The officers thereupon decided to make the arrest. They pulled Lee’s car, in which Humphries was riding, over by dint of jamming their three automobiles around it.

At the point of arrest after Lee’s car was stopped, one of the officers saw Humphries with a tinfoil packet (similar to ordinarily used narcotic packets) in her hand which she sought to put in her purse. He seized the packet and found another one in her purse, both of which the government subsequently sought to introduce.

The information upon which the officers were acting in their surveillance was supplied by an informant whose reliability was well established. One of them knew defendant Lee as a narcotics trafficker. The officers had confirmed the informant’s prediction that defendant Lee was going to a Northeast Washington location that day. Prior to the arrest they had received specific information that defendant Lee had “the material” on his person at the time.

Such specific information about commission of a federal crime in the presence of the officers in our view certainly constituted probable cause for arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Before their surveillance of Lee’s Northeast Washington trip and the informant’s phone call stating that Lee had the material on him, the officers had only the prediction of the commission of a crime. An application for a search warrant before they followed Lee to Northeast Washington would probably have been futile. If they had delayed their arrest after the informant’s phone call saying that Lee had the material, the probability of the disappearance of the evidence would have been great. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). And in any event, law enforcement officers who have probable cause to believe that a felony is being committed in their presence have authority to arrest forthwith.

The search which followed the stopping of the car was incident to the arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1968).

The plain sight view of the packet in defendant Humphries’ hands supplied probable cause for her arrest, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) (per curiam), and the search of her purse incident thereto. United States v. Robinson, supra; Gustafson v. Florida, supra; Chimel v. California, supra.

The order suppressing the narcotics seized in this case is vacated and the case is remanded to the District Court for trial.

      . We do not agree with appellees’ argument that we lack jurisdiction over this appeal. Notice of appeal was filed within 30 days (as construed by Rule 26(a) Fed.R.App.P.) of the only “entry of the judgment or order appealed from” signed by the District Judge. Fed.R.App.P. 4(b). See 18 U.S.O. § 3731 (1970). It is true as appellees contend that the docket entry of March 9, 1973, could have served as a final “judgment or order” under Fed.R.App.P. 4(b). But where, as here, the District Judge sees fit to enter a formal order and does so before the time to file notice of appeal expires, we will presume, in the absence of any contrary showing, that she intended the formal order to be the final judgment from which the appeal may be taken. The Supreme Court in United States v. Ilark employed this same reasoning :
      In view of the diverse practice and custom in District Courts we cannot lay down any hard and fast rule. Where, as here, a formal judgment is signed by the judge, this is prima facie the decision or judgment rather than a statement in an opinion or a docket entry. In recent cases we have so treated it. . . [W]e think we should give weight to the action of the judge rather than to the opinion of counsel or of a ministerial officer of the court. The judge was conscious, as we are, that he was without power to extend the time for appeal. lie entered a formal order of record. We are unwilling to assume that he deemed this an empty form or that he acted from a purpose indirectly to extend the appeal time, which he could not do overtly. In the absence of anything of record to lead to a contrary conclusion, we take the formal order of March 31 as in fact and in law the pronouncement of the court’s judgment and as fixing the date from which the time for appeal ran.
      United States v. Hark, 320 U.S. 531, 534-535, 64 S.Ct. 359, 361, 88 L.Ed. 290 (1944). (Footnotes omitted.)