author: BUTZNER, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. Calman BERNSTEIN, Appellee.
    No. 74-1066.
    United States Court of Appeals, Fourth Circuit.
    Argued Sept. 30, 1974.
    Decided Jan. 24, 1975.

      Marc Philip Riehman, Atty., U. S. Dept, of Justice (George Beall, U. S. Atty. for the District of Maryland, David E. Holt, Jr., Sp. Atty. and Peter M. Shannon, Jr., Atty., Dept, of Justice, on brief), for appellant.
    Arnold M. Weiner, Baltimore, Md. (M. Albert Figinski, Baltimore, Md., on brief), for appellee.
    Before CRAVEN, BUTZNER and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

The United States appeals from a district court order that suppressed Caiman Bernstein’s intercepted phone calls as evidence against him. The court found that when the government applied for the intercept order extensions, under which the conversations were later seized, its agents knew that Bernstein was committing the crime under investigation and would use the telephone they sought to tap. Because Bernstein was not identified in either the applications or the extensions, in violation of Title III of the Omnibus Crime Control and Safe Streets Act, the court suppressed the conversations. Its opinions are reported as United States v. Curreri, 368 F.Supp. 757 (D.Md.1973), and United States v. Bleau, 363 F.Supp. 438 (D.Md.1973).

The wiretaps were part of an investigation of numbers bookmaking. The first intercept order was obtained on March 30, 1972, and extensions were granted on April 14, May 1, and May 17. After Bernstein and others were indicted for conducting an illegal gambling business, he moved to suppress conversations seized under both the original order and the extensions. The district court found that although government agents had probable cause to believe that Bernstein was involved in the business before they applied for the March 30 order, they did not know that he would use the tapped telephones. Consequently, it denied Bernstein’s motion to suppress the conversations obtained by the first interception. Bernstein has not appealed this order.

The court then found that before the agents applied for the April 14 extension order, information from the first interception had given them probable cause to believe that Bernstein would be overheard on a tapped telephone. Their failure to identify him in that and subsequent applications, it held, rendered the interceptions obtained after April 14 unlawful with respect to him. Accordingly, the court suppressed them. We affirm.

I

The application for a wiretap order must include “a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including . . . the identity of the person, if known, committing the offense and whose communications are to be intercepted.” Extensions of an intercept order require a new application containing the same information needed for the original one. The order must specify “the identity of the person, if known, whose communications are to be intercepted.” Since it is only through the application that the judge learns the identity of the person whose conversations are to be intercepted, the identification requirement for the order is no broader than for the application. United States v. Kahn, 415 U.S. 143, 152, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). The critical issue in this case, therefore, is whether the omission from a wiretap application of the name of a known offender whose communications are to be overheard dictates suppressing his conversations as unlawfully intercepted when the government proposes to use them against him.

Not every violation of Title III results in an unlawful interception. A violation is material only if Congress intended the statutory provision that was not followed to be “a precondition to obtaining . . . intercept authority.” United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). Statutory preconditions, teaches the Court, “directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” 416 U.S. at 527, 94 S.Ct. at 1826. In contrast, violation of a statutory provision that does not “affect the fulfillment of any of the reviewing or approval functions required by Congress,” does not render an interception unlawful within the meaning of § 2518(10)(a)(i). United States v. Chavez, 416 U.S. 562, 575, 94 S.Ct. 1849, 1856, 40 L.Ed.2d 380 (1974). Whether a statutory provision is a precondition to a valid order depends, then, on its role in the Act’s system of restraints on electronic surveillance.

Title III was drafted to protect the privacy of wire and oral communications while allowing the use of electronic surveillance in the investigation of certain crimes. It restricts eavesdropping by law enforcement officers both to conform to the fourth amendment and to prevent abuse even of constitutional surveillance. The government contends that the identification requirement serves neither end and that its violation is a mere technical omission. But when the entire statute is considered, identification is seen to facilitate both constitutional and congressional limits on eavesdropping.

Electronic interception of communications is a form of search and seizure subject to the fourth amendment. Unless a party to the conversation consents, the amendment only permits interceptions with prior judicial approval to gather information about a specific crime for a limited time from a particular place. Therefore, the amendment prohibits eavesdropping to collect general intelligence about individuals. See generally United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Several provisions of Title III directly implement these restrictions. Though dictum in United States v. Kahn, 415 U.S. 143, 155 n.15, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), indicates that the fourth amendment might not require naming a known offender whose conversations are to be intercepted, identification nevertheless fosters conformity with both constitutional and statutory requirements. In particular, it is important to the exercise of (A) executive approval, (B) prior judicial authorization, and (C) subsequent judicial review of interceptions.

A

In order to allow only necessary electronic surveillance, Congress imposed preconditions not required by the Constitution, including restriction of federal authority to request intercept orders to the Attorney General or a designated Assistant Attorney General. 18 U.S.C. § 2516(1); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). When deciding whether to approve surveillance, however, the Attorney General depends on information from law enforcement officials. If his subordinates do not identify known persons whose conversations they wish to intercept, they effectively substitute their judgment for his. It is therefore apparent that identification, as required by § 2518(l)(b)(iv), is essential to the discharge of responsibility which the Act places on the Attorney General or his designate.

B

Both the fourth amendment and Title III require prior judicial authorization of electronic eavesdropping in order to forestall abuses by enforcement officials. 18 U.S.C. §§ 2511, 2518(3); United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Issuing an intercept order is not simply a ministerial act, for the judge must decide that the constitutional and statutory justifications for the intrusion exist. So that the judge can be as informed as possible in an ex parte hearing, Congress required the applicant for an intercept order to furnish the necessary facts in considerable detail. See 18 U.S.C. § 2518(1); cf. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Included in the information the government must furnish is a complete history of the electronic surveillance of the persons named in the application. Omission of this information is a statutory violation that invalidates any interceptions with respect to the persons not listed. United States v. Bellosi, 501 F.2d 833 (D.C.Cir. 1974). As that case explains, Congress believed that information about prior surveillance is “necessary to judicial consideration of whether the proposed intrusion on privacy is justified by important crime control needs.” 501 F.2d at 837. But a history of prior taps involving the same person is available to the court only when he is named in the application. Identification required by the Act, therefore, facilitates judicial control by providing the complete history that Congress deemed necessary for an informed decision.

C

In Berger v. New York, 388 U.S. 41, 60, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), the Supreme Court held that notice of a search is an essential element of judicial control over the execution of intercept orders. Secrecy, it reasoned, could make vindication of fourth amendment rights impossible, especially when the government did not intend to use the intercepted conversations as evidence. Conforming to the Constitution, Title III requires service of notice on “the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine,” informing them. that an interception was applied for and either denied or carried out: 18 U.S.C. § 2518(8)(d). This notice, the legislative history explains, “should insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least to the subject. He can then seek appropriate civil redress . . . if he feels that his privacy has been unlawfully invaded.” [Italics added.] S.Rep. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong, and Admin.News, p. 2194.5 *****

Unless the government uses the intercepts as evidence against him, an unnamed subject has no assurance that he will receive notice, and the government may secretly circulate unlawfully intercepted conversations to other law enforcement agencies and use them in its own operations. Post-interception judicial review in an adversary hearing, an essential part of Title Ill’s remedial scheme, cannot be had without notice to the person overheard. When the government expects to listen to a known offender, it has the statutory duty to name him in the application so that he will receive the notice to which he is entitled. Failure to do so can obstruct judicial review of the government’s actions and thwart the congressional policy of protecting the individual’s privacy.

In conclusion, the Act’s identification requirements form an integral part of the system Congress created to protect privacy by executive and judicial control of electronic surveillance. Identification of known persons, as required by § 2518(l)(b)(iv), is therefore a statutory precondition to a valid intercept order, and failure to identify renders an interception contrary to law and invalid as to that person. 18 U.S.C. §§ 2518(10)(a)(i), 2515; cf. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

II

We next consider whether Bernstein was “known” within the meaning of § 2518(l)(b)(iv), which requires the application for an intercept order to include “the identity of the person, if known, committing the offense and whose communications are to be intercepted.” The problem consists of three parts: what information does the statute require; how certain must the applicant be about this information; and whether the district court correctly assessed the applicants’ knowledge when they applied for the April 14th extension.

We agree with the district court that § 2518(l)(b)(iv) imposes no duty of identification until the applicant knows both that the individual “is committing the offense’’ and that his “communications are to be intercepted.” The Supreme Court settled the first point in United States v. Kahn, 415 U.S. 143, 156-157, 94 . S.Ct. 977, 39 L.Ed.2d 225 (1974). Its opinion supports the second by implication, for if the government has no knowledge that a certain person will be overheard on the tapped phone, it cannot intend to invade his privacy and would serve no statutory purpose by identifying him. See United States v. Martinez, 498 F.2d 464, 468 (6th Cir. 1974).

How positive of the relevant facts must the government’s agents be? The government maintains that it must name the person only when its knowledge approaches certainty. Bernstein contends that the government must identify the subject of an interception when its knowledge supports a finding of probable cause of his criminal activities and use of the phone to be tapped.

Again, Kahn provides guidance by indicating that probable cause is sufficient knowledge. The Court’s observation, though dictum, is consistent with the historical use of this test to evaluate other invasions of privacy. See, e. g., Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The probable cause standard is a well tried compromise between the interests of personal privacy and effective law enforcement. See Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Examination of the evidence by a neutral, objective judicial officer provides a more uniform and certain measure of the investigator’s knowledge than his own subjective judgment. See Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). We therefore hold that when there is probable cause to believe that an individual is committing a specific crime and may be overheard on a specific phone, he is known to the government for the purpose of § 2518(l)(b)(iv).

We next consider whether the district court correctly found that the F.B.I. had probable cause to believe Bernstein was participating in the activity under investigation and would use a phone covered by the extension of the intercept order. Since the district judge’s opinion sets forth the facts in meticulous detail, only a brief resume of the evidence is necessary for our purposes. See United States v. Curreri, 368 F.Supp. 757, 761 (D.Md.1973).

Before the government applied for its initial intercept order on March 30, F.B.I. agents investigating Robert Curreri, a bookmaker whose telephones they wished to tap, learned from two informants of proven reliability that Bernstein was handling Curreri’s layoff. Baltimore police also told agents that Bernstein was reputedly involved in gambling. It is apparent the district court correctly found that from this information the agents had probable cause to believe Bernstein was part of an illegal gambling business. Indeed, the government now concedes this point. But not until Curreri’s phones were actually tapped did the F.B.I. learn that Bernstein would use one of them to discuss gambling with Curreri. On April 11, 1972, agents monitored a call on one of Curreri’s phones from a man whom they were able to identify as Bernstein. Initially, an unidentified man told Bernstein that Curreri was busy. When Bernstein gave his name and said that he had a message to call, he was told to hold on because Curreri wanted to speak to him. Curreri and Bernstein then discussed a payoff on a wrong number the previous day and ways to avoid the same mistake in the future. During the conversation Bernstein said that he had told his girl to “call everybody” when he had learned of the mistake and that he had called Curreri’s mother once before about a similar problem. Curreri then instructed Bernstein to give his girl Curreri’s number, saying, “I’m either here or home or someplace.” Bernstein reassured Curreri that anytime a wrong number was reported, “If it’s four o’clock in the morning, I’ll call.” The transcript ends with Bernstein saying, “I’ll talk to you later,” and Curreri responding, “O.K., Cal.” The government mentioned neither Bernstein nor this call in its April 14th application.

Taken as a whole, the evidence supports the district court’s finding. F.B.I. agents already had probable cause to believe Bernstein was involved in Curreri’s operation. The April 11th conversation, which referred to payments between the two men, confirmed this and also showed that Bernstein phoned Curreri. A detached observer could conclude from the evidence available before April 14 that the government had probable cause to believe that Bernstein was still handling Curreri’s layoff and on occasion would talk with him about the business on a tapped phone. Cf. United States v. Kleve, 465 F.2d 187, 193 (8th Cir. 1972).

Ill

The government contends that even if it violated § 2518(l)(b)(iv) with respect to Bernstein, § 2517(3) authorizes the use of the taps as evidence against him. Briefly, the government argues that the communications between Bernstein and Curreri include both sides of the conversation; that a valid order covered Curreri; and that once lawfully intercepted, Bernstein’s conversations could be used against anyone, including Bernstein himself.

The fundamental error in the government’s position is the assumption that Title III provides only a right not to have the unlawful intercepts used in court. But Title III does more: it creates a right not to be overheard except in conformity with its provisions. 18 U.S.C. § 2511(1). As we held in part I of this opinion, the identification required by § 2518(l)(b)(iv) is a precondition to lawful interception with respect to a known person. Therefore, contrary to the government’s assertion, § 2517(3) supplies no basis for admission since by its terms it applies only to “communications intercepted in accordance with this chapter.”

The government compares this case, however, to one where an independent ground for a search, such as a valid arrest, renders a defective warrant, or the absence of a warrant, immaterial. We find the analogy unpersuasive. A warrantless search incident to a lawful arrest is valid because the occasion requires the contemporaneous removal of weapons or disposable evidence from the prisoner and the area under his immediate control. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Similar exigent circumstances are lacking when agents tap a phone with probable cause to believe that they will overhear a particular person talking about specific criminal activity.

Nor can the government rely on a comparison to the plain view doctrine. The seizure of evidence in plain view is justified only when discovery is inadvertent. Coolidge v. New Hampshire, 403 U.S. 443, 469, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The government’s position finds no support in United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Mrs. Kahn’s conversations were lawfully intercepted because the government had no reason to suspect her criminal activities when the agents overheard her. Here, in contrast, the agents had reason to anticipate Bernstein’s use of a tapped phone to discuss his participation in the crime they were investigating, and they intended to intercept his calls. The conversations suppressed by the district court were not inadvertently discovered.

We conclude, therefore, that when the government has the statutory duty to identify an individual, its failure to do so is not excused by the fact that it lawfully eavesdropped on another party to the conversation.

IV

Bernstein did not receive statutory notice of the wiretaps in which his conversations were intercepted. The government argues that because he later received actual notice he was not prejudiced, and consequently his conversations are admissible.

Suppression, however, does not depend on proof of prejudice from lack of statutory notice. Congress defined an aggrieved person as “a party to any intercepted wire or oral communication or a person against whom the interception was directed.” Prejudice is not an element of the definition. Furthermore, the statute gives the district court no discretion to deny, because of lack of prejudice, an aggrieved person’s motion to suppress when the interception is unlawful. We conclude from the unequivocal language of Title III that Congress intended any unlawful invasion of an aggrieved person’s privacy to be sufficient harm in itself to require suppression. Cf. United States v. Giordano, 416 U.S. 505, 524-529, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

The order of the district court is affirmed.

      . 18 U.S.C. § 2518 provides:
      “(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:
      (b) a. full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted . . ."

      . 18 U.S.C. § 2518(5) provides in pertinent part:
      “ . . . Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section . . . ”

      . 18 U.S.C. § 2518(4)(a).

      . 18 U.S.C. § 2518(10)(a) provides:
      “Any aggrieved person in any trial . in or before any court ... of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted, wire or oral communication, or evidence derived therefrom, on the grounds that—
      (i) the communication was unlawfully intercepted;
      If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter.”
      18 U.S.C. § 2515 provides:

        “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received . in any trial ... if the disclosure of that information would be in violation of this chapter.”
      18 U.S.C. § 2517(3) allows intercepted communications to be used as evidence only if obtained “by any means authorized by this chapter.”

      . In Giordano the Court affirmed suppression because the Attorney General or a designated Assistant Attorney General failed to review and approve the application for an intercept order, in violation of 18 U.S.C. § 2516(1).

      . Chavez held that application’s misnomer of the authorizing Assistant Attorney General, in violation of 18 U.S.C. § 2518(l)(a), did not require suppression.

      . E. g„ 18 U.S.C. §§ 2518(3) (judicial finding of probable cause that evidence of specific crime can be fathered from specific place), and 2518(5) (limitations on time and scope).

      . But see West v. Cabell, 153 U.S. 78, 14 S.Ct. 752, 38 L.Ed. 643 (1894). This case, cited in the legislative history of § 2518(4)(a), S.Rep. 1097, 90th Cong., 2d Sess., 1968 U.S. Code Cong, and Admin.News, p. 2191, held that both the common law and the fourth amendment required that the person to be seized under an arrest warrant should be accurately named. Since the other information demanded in § 2518(l)(b) is required by the ' fourth amendment, Congress may have believed that identification of the person speaking is also constitutionally required.

      . The fact that an application for an extension is involved in this case is not significant. The Acting Attorney General separately authorized the April 14th extension and, on the recommendation of an Assistant Attorney General, approved the addition of names not included in the original application. Bernstein’s name, however, was not mentioned.

      . 18 U.S.C. § 2518(l)(e) requires:
      “A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application

      . 18 U.S.C. § 2520 provides a civil remedy for violations of Title III.

      . If the intercepts are used as evidence, the government must give notice at least ten days before trial. 18 U.S.C. § 2518(9).

      . In United States v. Kahn, 415 U.S. 143, 155, 94 S.Ct. 977, 978 (1974), the Court stated that:
      “Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that that the individual is ‘committing the offense’ for which the wiretap is sought.”

      . A bookmaker must diminish his risks by re-betting, or “laying off,” large bets with another bookmaker. The person who takes layoff bets is an integral part of a bookmaking business. United States v. Bobo, 477 F.2d 974, 990 (4th Cir. 1973).

      . “There is no question but that the government had probable cause to believe that Bernstein was a member of Curreri’s gambling operation . . . ” Reply Brief for the United States 5.

      . 18 U.S.C. § 2517(3) provides:
      “Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any State or in any Federal or State grand jury proceeding.”

      . 18 U.S.C. § 2511(1) provides in pertinent part:
      “(Í) Except as otherwise specifically provided in this chapter any person who—
      (a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication . .”
      shall be subject to criminal penalties.

      . 18 U.S.C. § 2510(11).

      . See footnote 4 supra.


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge. STEPHENSON, Circuit Judge.

license: Public Domain

text:
    The FIRST NATIONAL BANK OF ST. CHARLES et al., Petitioners, v. BOARD OF GOVERNORS OF the FEDERAL RESERVE SYSTEM, Respondent, and Mark Twain Bancshares, Inc., and Mark Twain O’Fallon Bank, Respondents-Intervenors.
    No. 74-1312.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1974.
    Decided Jan. 22, 1975.
    Reconsideration Denied Feb. 11, 1975.

      Richard L. Hughes, Mogab, Hughes & Green, Inc., St. Louis, Mo., for petitioners.
    Anthony J. Steinmeyer, Atty., Appellate Section, Civil Div., Dept, of Justice, Washington, D. C., for respondent.
    Lewis E. Striebeck, Jr., St. Louis, Mo., for intervenor, Mark Twain Bancshares.
    Godfrey Padberg, St. Louis, Mo., for intervenor, Mark Twain O’Fallon Bank.
    Before ROSS and STEPHENSON, Circuit Judges, and SCHATZ, District Judge.

       Honorable Albert G. Schatz, District Judge, District of Nebraska, sitting by designation.

   STEPHENSON, Circuit Judge.

In this appeal the petitioner banks seek review of an order of the Board of Governors of the Federal Reserve System (Board) approving the application of respondent-intervenor Mark Twain Bancshares, Inc. (Bancshares) for prior approval of its acquisition of 80.5% of respondent-intervenor Mark Twain O’Fallon Bank (O’Fallon Bank) pursuant to section 3 of the Bank Holding Company Act of 1956, 12 U.S.C. § 1842(a) (1970). We hold that the petitioners’ failure to present to the Board the objections they now raise requires us to dismiss their appeal for lack of subject matter jurisdiction.

The facts are not disputed. In October, 1973, Bancshares applied to the Board for prior approval of its acquisition of 80.5% of the voting shares of the proposed O’Fallon Bank. In accordance with regulations, notice of this application was printed in the Federal Register and public comment was invited. See 12 C.F.R. § 262.3(g) (1973). During the entire pendency of the Bancshares’ application before the Board, including the four and one-half month comment period, petitioners did not object or ask to be heard.

However, prior to the Bancshares’ application to the Board, petitioners had challenged the validity of the charter issued to O’Fallon Bank in state administrative and judicial proceedings. As a result, before any action was taken on the Bancshares’ application, the Board staff made inquiries concerning the status of the state litigation and acquired specific information regarding the substantive issues of state law involved in that action. It was learned that a state appellate court hearing would not be held on those issues until late 1974. On April 17, 1974, having all these facts before it, the Board approved the Bancshares application for acquisition of the O’Fallon Bank voting shares.

Six days after this application had been approved, petitioners made their initial contact with the Board. At that time petitioners sought a Board hearing on a state law issue which the Board rejected as having been untimely raised. Petitioners next sought to stay the Board’s approval order pending the outcome of the state litigation, but that motion was denied. On April 30, 1974, the petition to review was filed in this court.

In this appeal Bancshares and O’Fallon Bank have been allowed to intervene as respondents. They, along with the Board, contend that this court is without jurisdiction to hear this appeal. The court also has before it the substantive issues of whether O’Fallon Bank’s allegedly defective incorporation can provide a basis for reversal of a Board order and whether Bancshares acquired O’Fallon Bank voting shares in violation of 12 U.S.C. § 1842. Neither of these issues was raised before the Board.

On the issue of jurisdiction, respondents contend that the doctrine of exhaustion of administrative remedies requires that this appeal be dismissed. We agree and hold that because petitioners did not present their objections to the Bancshares application to the Board, they have not properly exhausted their administrative remedies as required by the Supreme Court in Whitney National Bank v. Bank of New Orleans and Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965); nor are they entitled to a review as “aggrieved parties” under sections 9 and 105 of the Bank Holding Company Act, 12 U.S.C. §§ 1848 and 1850.1 *

In Whitney National Bank, supra, the Supreme Court examined the statutory grievance procedure under the Bank Holding Company Act of 1956 and held that all issues arising under that Act must be presented to the Federal Reserve Board prior to any judicial review. 379 U.S. at 419^120, 85 S.Ct. 551. The Court specifically found that “[o]pponents of the opening of a new bank by a bank holding company must first attack the arrangement before the Board, subject only to review by the Courts of Appeal.” Id. 379 U.S. at 422, 85 S.Ct. at 558 (emphasis added). The doctrine of exhaustion of administrative remedies was applicable, according to the Court, because of the “specific statutory scheme for obtaining review” contained in the Act. “A rejection of that doctrine would result in unnecessary duplication ■ and conflicting litigation.” Id.

We hold that the language in Whitney National Bank requiring the initial presentation of issues before the Board controls the instant case. Petitioners admit that they have not formally raised before the Board either of the substantive issues asserted here. Instead they argue that Whitney National Bank does not require exhaustion of remedies but merely makes clear the fact that Board findings may only be attacked in the courts of appeals. While we admit that the specific facts upon which Whitney National Bank was decided differ from those in the instant case, the Court’s extensive discussion of review procedures and exhaustion under the Bank Holding Company Act is fully applicable here.

In addition, the interpretation we have given to the language in Whitney National Bank is entirely consistent with the Court’s general attitude toward the doctrine of exhaustion of administrative remedies. The underlying principle of this doctrine, as expressed in United States v. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952), is that “[s]imple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only erred but has erred against objection made at the time appropriate under its practice.” See generally 3 K. Davis, Administrative Law Treatise, §§ 20.01 — .09 (1958 and 1970 Supp.). To allow the bypass of agency expertise would be inefficient and would undermine Congressional intent. Far East Conference v. United States, 342 U.S. 570, 574-575, 72 S.Ct. 492, 96 L.Ed. 576 (1952). See also McGee v. United States, 402 U.S. 479, 484, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); McKart v. United States, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Thus we are not willing to accept petitioner’s contention that the Court in Whitney National Bank did not intend to require exhaustion of remedies under the Bank Holding Company Act.

We similarly reject petitioner’s suggestion that the Board’s alleged “actual notice” of their objection to the Bancshares application constituted sufficient presentation of issues for exhaustion purposes. In the first place, only one of the issues raised here, the defective incorporation issue, was advanced in the state court briefs which were given to the Board staff. Furthermore, the concept of “informal exhaustion” was dismissed by the Court of Appeals for the District of Columbia after careful consideration of the issue in Gage v. A. E. C., 156 U.S.App.D.C. 231, 479 F.2d 1214, 1221-1222 (1973).

Petitioners next argue that dismissal here would be improper in light of 12 U.S.C. § 1850 which, in their view, specifically grants them the status of “aggrieved parties” for purposes of review, yet does not require that they first present objections to the Board. We disagree. In our view, the specific legislative history of section 1850 and the extensive interpretive history of the term “aggrieved party” as it has been used in the context of administrative law indicates that Congress incorporated within that statute the substance of the Supreme Court’s exhaustion doctrine from Whitney National Bank.

In 1970 Congress enacted section 1850 as one of several amendments to the Bank Holding Company Act of 1956. That statute states that, with respect to a wide variety of Board regulated matters, a competitor bank “shall have the right to be a party in interest in the proceeding and, in the event of an adverse order of the Board, shall have the right as an aggrieved party to obtain judicial review as provided in section 1848 of this title * * The intent of Congress in drafting this statute was to provide a means by which those competitors and potential competitors who would be affected by a Board decision could participate in the proceedings and, where necessary, pursue an appeal. See S.Rep. No. 91 — 1084, 91st Cong., 2d Sess. (1970), U.S.Code Cong, and Admin.News, pp. 5519, 5534-5535 (1970); Conf.Rep. No. 91-1747, 91st Cong., 2d Sess. (1970), U.S.Code Cong, and Admin.News, pp. 5561, 5580-5581 (1970).

Thus section 1850 gave competing banks the right to appear as parties in Board proceedings. However, we believe that petitioners have mistakenly assumed that this general grant of standing carries with it no attendant procedural responsibilities. In discussing the review procedures under sections 1848 and 1850 prior to the passage of the 1970 amendments, Senator Sparkman, Chairman of the Senate Banking and Currency Committee, plainly stated that “in order to challenge an unfavorable Board decision in court, the aggrieved parties must participate in administrative proceedings before the Board.” 116 Cong. Rec. 42426 (1970) (remarks of Sen. Sparkman).

This statement illustrates the fact the Congress in passing section 1850 expanded the category of parties who could claim standing under the “aggrieved” definition, yet maintained the requirement from Whitney National Bank that any such party must pursue its administrative remedies first. By failing to avail themselves of the right of intervention under section 1850 as “aggrieved parties,” petitioners no longer occupy that status for purposes of judicial review as provided by section 1848. Simply stated, presentation of an objection to the Board is a condition precedent to standing as a “party aggrieved” before this court.

Finally, this interpretation of the term “aggrieved party” has been adopted by other courts which have considered those same words in the context of administrative acts similar to the Bank Holding Company Act. See Gage v. A. E. C., 156 U.S.App.D.C. 231, 479 F.2d 1214, 1218 n. 14 (1973); Easton Utilities Comm’n v. A. E. C., 137 U.S.App.D.C. 359, 424 F.2d 847, 851-852 (1970); Red River Broadcasting Co. v. F. C. C., 69 App.D.C. 1, 98 F.2d 282, 287, cert. denied, 305 U.S. 625, 59 S.Ct. 86, 83 L.Ed. 400 (1938). Cf. Outward Continental No. Pac. Freight Conf. v. Federal Maritime Comm’n, 128 U.S.App.D.C. 199, 385 F.2d 981, 982 n. 3 (1967).

We conclude that petitioners have not satisfied the exhaustion of remedies requirement set out in Whitney National Bank. Neither have they fulfilled the definition of “aggrieved parties” for purposes of judicial review because of their failure to present their substantive objections at the Board hearing. This appeal must therefore be dismissed for lack of jurisdiction. We do not reach the merits of substantive issues raised by petitioners.

Dismissed.

ORDER ON PETITIONERS’ PETITION FOR RECONSIDERATION OF ORDER

STEPHENSON, Circuit Judge.

Petitioners’ petition seeking reversal of our dismissal of its appeal is denied. However, revision of the last paragraph of our opinion is in order to the extent that we spoke of the necessity for the “aggrieved parties” to present their substantive objections at the Board hearing as a prerequisite to judicial review. We should have spoken of the necessity of presenting substantive objections during the Board proceedings. A Board hearing was neither required nor held.

As we pointed out in our opinion, the Board published a notice of Bancshares’ application in 38 Federal Register 33537 on December 5, 1973 inviting comments of all interested parties. (This was done pursuant to 12 C.F.R. § 262.3(g).) No comments, objections, or requests to be heard were made by petitioners during the entire pendency of Baneshares’ application before the Board. On April 17, 1974, nearly four and one-half months later, the Board approved Baneshares’ application.

We reaffirm our view that petitioners have not satisfied the exhaustion requirement. Neither have they demonstrated they were “aggrieved parties.”

      . Petitioners include First National Bank of St. Charles and three other Missouri banks in the St. Louis banking market.

      . That statute provides, in relevant part, that:
      (a) It shall be unlawful, except with prior approval of the [Federal Reserve] Board, * * * (2) for any action to be taken that causes a bank to become a subsidiary of a bank holding company; (3) for any bank holding company to acquire direct or indirect ownership or control of any voting shares of any bank if, after such acquisition, such company will directly or indirectly own or control more than 5 per centum of the voting shares of such bank * * '

      . Section 1848 provides:
      Any party aggrieved by an order of the Board under this chapter may obtain a review of such order in the United States Court of Appeals within any circuit wherein such party has its principal place of business, or in the Court of Appeals in the District of Columbia, by filing in the court, within thirty days after the entry of the Board’s order, a petition praying that the order of the Board be set aside. A copy of such petition shall be forthwith transmitted to the Board by the clerk of the court, and thereupon the Board shall file in the court the record made before the Board, as provided in section 2112 of Title 28. Upon the filing of such petition the court shall have jurisdiction to affirm, set aside, or modify the order of the Board and to require the Board to take such action with regard to the matter under review as the court deems proper. The findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive.
      Section 1850 provides:
      With respect to any proceeding before the Federal Reserve Board wherein an applicant seeks authority to acquire a subsidiary which is a bank under section 1842 of this title, to engage directly or indirectly in a nonbanking activity pursuant to section 1843 of this title, or to engage in an activity otherwise prohibited under sections 1971 to 1978 of this title, a party who would become a competitor of the applicant or subsidiary thereof by virtue of the applicant’s or its subsidiary’s acquisition, entry into the business involved, or activity, shall have the right to be a party in interest in the proceeding and, in the event of an adverse order of the Board, shall have the right as an aggrieved party to obtain judicial review thereof as provided in section 1848 of this title or as otherwise provided by law.

      . Subsequent to the decision in Red River, Congress amended the FCC Act to allow appeal by parties who had either participated in the administrative proceedings or had filed a petition for reconsideration within 30 days after the order was entered. See 47 U.S.C. § 405 (1970). Aside from this statutory expansion of standing for purposes of review, the Red River interpretation of the term “aggrieved party” remains intact. See Joseph v. F. C. C., 131 U.S.App.D.C. 207, 404 F.2d 207, 209 & n. 6 (1968). See also Gross v. F. C. C., 480 F.2d 1288, 1290 n. 5 (2d Cir. 1973).

      . Under 12 C.F.R. § 262.3(g)(2) the Board may hold hearings for the purpose of taking evidence if deemed desirable.


author: WALLACE, Circuit Judge:

text:
    Charles E. SILJEG, Trustee in Bankruptcy for Henry House Packing Co., Inc., Plaintiff-Appellant, v. The NATIONAL BANK OF COMMERCE OF SEATTLE, Defendant-Appellee.
    No. 72-2752.
    United States Court of Appeals, Ninth Circuit.
    Jan. 13, 1975.
    Thomas T. Glover (argued), Johnson, Quigley, Hatch & Loveridge, Seattle, Wash., for plaintiff-appellant.

      Hans C. H. Jensen, Graham, McCord, Dunn, Moen, Johnston & Rosenquist, Seattle, Wash., for defendant-appellee.
    Before CHOY and WALLACE, Circuit Judges, and PALMIERI, District Judge.

       Honorable Edmund L. Palmieri, Senior United States District Judge, Southern District of New York, sitting by designation.

   OPINION

WALLACE, Circuit Judge:

Henry House Packing Co., Inc., filed a voluntary petition under Chapter VI of the Bankruptcy Act on November 27, 1967, and was adjudicated a bankrupt on February 12, 1968. The trustee brought this action-to recover an alleged preferential transfer under section 60a of the Bankruptcy Act, 11 U.S.C. § 96(a), against The National Bank of Commerce of Seattle (Bank) claiming that the Bank had received certain inventory and accounts receivable from the bankrupt corporation within four months of the filing of the petition. The district court dismissed the action on the Bank’s motion for summary judgment. We reverse.

On August 8, 1966, Henry House Packing Co., Inc., (Henry House I) and the Bank executed a revolving chattel mortgage covering inventory of meat products, proceeds and existing and future accounts receivable. This security agreement was perfected under prior Washington law by filing appropriate documents with the county auditor. Wash. Rev.Code §§ 61.04.010 — .090, repealed by § 62A.10-102(vi).

On June 26, 1967, Henry House I was merged into another Seattle meat packer, Empire Packing Co. (Empire). On that date, the required documents were filed with the Washington Secretary of State. Paragraph 11 of the “Agreement and Plan of Merger” provided that Empire was to be the surviving corporation and that its articles of incorporation and by-laws would govern the surviving entity. Paragraph 12 of the agreement stated:

Name. As a part of this merger and as soon as practical thereafter the Articles of Incorporation of Empire shall be amended to provide that the name of the surviving corporation shall be HENRY HOUSE PACKING CO., INC. Harry J. Thompson is hereby granted the exclusive right to use the name “Empire” in connection with the organization and operation of a feed lot at Ephrata, Washington, which is authorized by paragraph 16.

Although no articles of amendment were filed (as would have been required to effect the name change properly), the Secretary of State on June 26, 1967, issued a certificate stating in part:

I further certify that the provisions of the Merger Agreement changes [sic] the name of the surviving corporation to HENRY HOUSE PACKING CO., INC.; and I further certify that HENRY HOUSE PACKING CO., INC. is in good standing with all annual license fees paid to July 1, 1967.

The records of the Secretary of State’s Office were altered to reflect the change of name from Empire to Henry House Packing Co., Inc. (Henry House II).

On June 30, 1967, the Bank and the surviving corporation, using the name “Henry House Packing Co., Inc.” executed two security agreements covering inventory, accounts receivable, contract rights, and products and proceeds of collateral. A financing statement in the name of “Henry House Packing Co., Inc.,” had been pre-filed on June 15, in accordance with the requirements of Article 9 of the Uniform Commercial Code, Wash.Rev.Code § 62A.9 — 101 et seq. The Washington enactment of the Uniform Commercial Code took effect on July 1, 1967. Wash.Rev.Code § 62A.10-101. This case concerns these June, 1967, transactions. The outcome depends upon a determination of whether the June 15 financing statement complies with the law.

Believing itself to be secured by the June 30 agreements, the Bank periodically advanced money to Henry House II. Although collections were made on these debts within four months of bankruptcy, these transfers were not preferential so long as the security agreements of June 30 were effective transfers and were “so far perfected that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee.” Bankruptcy Act § 60a(2), 11 U.S.C. § 96(a)(2). There is little doubt that the security agreements of June 30 attached and became enforceable on the date they were signed. The requirements of Uniform Commercial Code §§ 9 — 203(l)(b), 9-204(1) (1962), Wash.Rev.Code §§ 62A.9-203(l)(b), 62A.9-204(1), had been met: By its expressly authorized agent the debtor had signed a security agreement which contained a description of the collateral, value had been given in the form of advances prior to June 30, and the debtor had rights in the collateral.

But the agreement, even if valid, is subordinate to the rights of a lien creditor, such as the trustee in bankruptcy, if a valid financing statement is not filed. Uniform Commercial Code §§ 9— 301(l)(b), (3), 9-302(1), 9-303(1) (1962); Wash.Rev.Code §§ 62A.9-301(l)(b), (3), 62A.9-302(1), 62A.9-303(1).

The trustee contends that the June 15 financing statement was ineffective because:

(1) The filing was technically in the wrong name and thus would not give notice to other creditors; and

(2) The filing was by a company which was merged into another corporation and thus did not exist after June 26, 1967.

Article 9 of the Uniform Commercial Code adopted a system of “notice filing” which requires only that a simple notice of the security agreement need be filed.

The notice itself indicates merely that the secured party who has filed may have a security interest in the collateral described. Further inquiry from the parties concerned will be necessary to disclose the complete state of affairs.

Uniform Commercial Code § 9-402, Comment 2 (1962). Because financing statements are indexed under the name of the debtor, the entire system of notice filing depends upon use of the name of the debtor known to creditors.

The trustee argues that regardless of the certificates issued by the Secretary of State, an amendment of name had not been filed and, therefore, the “true name” of the surviving corporation was Empire. The trustee reasons that a creditor searching the records in the name of Empire would fail to discover any security interest filed under the name “Henry House Packing Co., Inc.”; thus the filing did not perfect the Bank’s security interest. In granting the Bank’s motion for summary judgment, the district court rejected this contention and held that the “true name” of the surviving corporation was “Henry House Packing Co., Inc.”

We do not believe, however, that the answer lies in the simple determination of whether the “true name” of the corporation was Empire or “Henry House Packing Co., Inc.” The problem with such an analysis is that perfection, and thus priority of one creditor over another, would turn on a mistake of the Secretary of State. The Uniform Commercial Code is directed toward commercial realities, not corporate technicalities. See Uniform Commercial Code § 1-102(1), (2) (1962); Wash.Rev.Code § 62A.1-102(1), (2). Indeed, one of the policies of Article 9 is “to discourage the fanatical and impossibly refined reading of statutory requirements in which courts have occasionally indulged themselves.” Uniform Commercial Code § 9-402, Comment 5 (1962). Section 9-402(5) provides that “[a] financing statement substantially complying with the requirements of this section is effective even though it contains minor errors which are not seriously misleading.” Wash.Rev.Code § 62A.9-402(5). See In re Green Mill Inn, Inc., 474 F.2d 14 (9th Cir. 1973).

Of course, in most cases it is helpful to determine the “true name” of the entity so long as it is recognized that this merely is a step toward the- answer and not the answer itself. The inaccurate name is measured against the real name to determine if it was seriously misleading to other creditors. Most of the cases dealing with filings under an incorrect name concern individuals doing business under an assumed trade name. Thus a filing in the trade name of “West Coast Avionics” did not perfect a security interest in assets of the individual debtor Burris Haley Thomas; the omission of the debtor’s real name was a fatal defect. In re Thomas, 466 F.2d 51 (9th Cir. 1972) (interpreting the California version of Uniform Commercial Code § 9-402). The issue to be determined is not the true name of the entity, but whether the filing was misleading. Filing under an assumed trade name is effective unless it is misleading. See, e. g., In re Platt, 257 F.Supp. 478, 482 (E.D.Pa. 1966).

The “true name” analysis is helpful, however, in the “doing business as” cases because in such cases there are, in effect, two entities. The individual debtor still has personal transactions unrelated to his business activities: He pays rent, buys food and contracts debts in his own name. His personal creditors may not know of security interests filed under the name in which he does business. Although the trustee argues to the contrary, the “doing business as” cases are not particularly helpful in the instant case because the surviving corporation most likely acted only under one name. (The trustee certainly does not allege otherwise.) The case before us more closely resembles one involving a truck-driver, Mr. Gustafson, who was issued a chauffeur’s license erroneously showing his name as “Gustavsen.” Unable to fight the bureaucracy and purely as a matter of personal convenience, he thereafter used and spelled his name as it appeared on his license. The bankruptcy judge recognized that Gustafson’s creditors dealt with him as Gustavsen and a financing statement containing this adopted and publicly accepted :name was found to be not seriously misleading. In re Gustafson, 14 UCC Rep. 231 (Bankruptcy Judge, W.D.Okl.1973). Cf. Avco Delta Corp. Canada Ltd. v. United States, 459 F.2d 436 (7th Cir. 1972); In re Excel Stores, Inc., 341 F.2d 961 (2d Cir. 1965); In re A&T Kwik-N-Handi, Inc., 12 UCC Rep. 765 (Referee, D.Ga. 1973); In re Hatfield Constr. Co., 10 UCC Rep. 907 (Referee, M.D.Ga.1971); National Cash Register Co. v. Firestone & Co., 346 Mass. 255, 191 N.E.2d 471 (1963); In re Nara Non Food Distrib. Inc., 66 Misc.2d 779, 322 N.Y.S.2d 194 (Sup.Ct.1970), aff’d mem., 36 A.D.2d 796, 320 N.Y.S.2d 1014 (1971).

As in Gustafson, the question in the present case is not whether “Henry House Packing Co., Inc.” was the true name of the surviving entity but whether creditors of the corporation would have been seriously misled. Was information available in the relevant business community which put creditors on notice. that they should have searched financing statements under the name “Henry House Packing Co., Inc.”? Cf. Uniform Commercial Code § 1-201(27) (1962); Wash.Rev.Code § 62A.1-201(27). It is likely that the surviving corporation did business under only one name and it may well be that a filing under that name was not seriously misleading.

However, we cannot decide this question as it is one of fact to be determined by the district court. The merger agreement between Empire and Henry House I contemplated that the new entity was to operate under the name “Henry House Packing Co., Inc.” Although the intent of the merging parties and the belief of the Bank do not directly answer the question of whether other creditors could have been misled, these facts do indicate that the surviving corporation carried on business as “Henry House Packing Co., Inc.” But because the district court applied the wrong legal test and never found whether there was substantial compliance with the requirements of section 9-402, we remand the case for determination of this fact.

As to the trustee’s second contention, it is true that Henry House I ceased to exist on June 26, 1967. Wash.Rev.Code § 23.01.500(2), repealed and superseded July 1, 1967, by § 23A.20.060; see 15 W. Fletcher, Cyclopedia of the Law of Private Corporations 100 (M. Wolf ed. 1973). A filing on behalf of Henry House I could not act to perfect a security agreement later executed by Henry House II. Although each had the same name, each was a corporation with different stockholders, different assets, different articles and different by-laws. But the question is, on behalf of which Henry House was the filing made? William Burke was president of both Henry House I and Henry House II. The filing might well have been for Henry House II. It is perfectly consistent with Code section 9-303 to file before the security interest attaches. This allows the secured party to obtain protection while the security agreement is negotiated. Moreover, the address on the financing statement is that of the surviving corporation and not that of Henry House I as indicated on the latter’s filing with the county auditor under its previous chattel mortgage with the Bank.

On the other hand, Henry House I also had a reason to file a financing statement like that filed on June 15. Such a filing may have been the only way to maintain perfection on advances made by the Bank under the prior security agreement but after the Washington version of the Uniform Commercial Code became effective. See Wash.Rev.Code § 62A.10-101; Uniform Commercial Code § 10-101 (1962). The question of on whose behalf the June 15 filing was made is another unresolved issue of fact to be determined by the district court.

The judgment is reversed and the cause remanded to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

      . The obligations of Henry House I, perfected under the Chattel Mortgage Act, were assumed by the acquiring corporation. Wash. Rev.Code § 23.01.500(5), repealed and superseded, July 1, 1967, by § 23A.20.060(5). They continued to be perfected by the Saving Clause of the newly-adopted Uniform Commercial Code. Uniform Commercial Code § 10-102(2) (1962); Wash.Rev.Code § 62A.10--102(2). See Lack’s Stores, Inc. v. Waisath, 464 S.W.2d 220 (Tex.Civ.App.), rev’d on other grounds, 474 S.W.2d 444 (Tex. 1971).
      The Bank argues that the Saving Clause serves to protect its post-UCC advances. See Charles S. Martin Distrib. Co. v. First State Bank of Blakely, 114 Ga.App. 693, 152 S.E.2d 599 (1966); but see 1 Benders UCC Service 377-79 (1973). However, the August, 1966, security agreement perfected under the Chattel Mortgage Act was with Henry House I which ceased to exist on June 26, 1967. This filing could not act to perfect post-merger advances to the surviving entity.

      . In this case the magnitude of the error depends upon the extent to which filing under the name “Henry House Packing Co., Inc.” was misleading. We agree with Professors White and Summers, however, that the requirement of substantial compliance has two elements: that the error, if any, be minor, and that it not be seriously misleading. J. White & R. Summers, Uniform Commercial Code 835 (1972). Thus, for example, the debtor’s failure to sign the financing statement would not be at all misleading since the statement does contain his name and address, but the omission might not be minor and thus not in substantial compliance. See In re Thrift Shoe Co., 502 F.2d 1211 (9th Cir. 1974) (trade name omitted contrary to requirement of California version of Uniform Commercial Code); In re HGS Technical Associates, 14 UCC Rep. 237 (1972), aff’d, 14 UCC Rep. 247 (E.D.Tenn.1973) (debtor’s address omitted). We note this because the exhibit which purports to be a copy of the financing statement filed on June 15, 1967, is not signed by either the debtor or the secured party as required by Uniform Commercial Code § 9-402(1) (1962); Wash.Rev.Code § 62A.9-402(1).

      . For other cases in which an inaccurate name was found to be seriously misleading see, e. g., In re Leichter, 471 F.2d 785 (2d Cir. 1972) ; In re Firth, 363 F.Supp. 369 (M.D.Ga. 1973) ; In re Hill, 363 F.Supp. 1205 (N.D.Miss. 1973); In re Eichler, 9 UCC Rep. 1406 (E.D. Wis.1971); In re Jones, 11 UCC Rep. 249 (Referee, W.D.Mich.1972); In re Merrill, 9 UCC Rep. 757 (Referee, D.Neb.1971); In re Levins, CCH Bankruptcy Rep. fl 63,556. (Referee, E.D.N.Y.1970); In re Osborn, 6 UCC Rep. 227 (Referee, D.Mich.1969); In re Brawn, 6 UCC Rep. 1031 (Referee, D.Me.1969) (alternate holding); Bank of North America v. Bank of Nutley, 94 N.J.Super. 220, 227 A.2d 535 (1967); John Deere Co. v. William C. Pahl Constr. Co., 34 A.D.2d 85, 310 N.Y.S.2d 945 (1970); National Cash Register Co. v. Valley Nat’l Bank, 5 UCC Rep. 396 (N.Y.Sup.Ct.1968).


author:
LAY, Circuit Judge.
      PELL, Circuit Judge

text:
    WALGREEN CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1934.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 1, 1974.
    Decided Jan. 21, 1975.

      Craig L. Ames, Chicago, Ill., for petitioner.
    Peter G. Nash, Gen. Counsel, Allison W. Brown, Atty., N.L.R.B., Washington, D. C., for respondent.
    Before PELL, SPRECHER and LAY, Circuit Judges.

       Judge Donald P. Lay of the Eighth Circuit is sitting by designation.

   LAY, Circuit Judge.

Walgreen Company has filed a petition to review, and the National Labor Relations Board a cross-application to enforce, a Board order issued against the Company on September 24, 1973. The Board’s decision and order are reported at 206 NLRB 15. The Board found numerous § 8(a)(1) violations as well as a wrongful discharge in violation of §§ 8(a)(3) and (1), and it issued a bargaining order. We grant enforcement of the Board’s order.

In 1970 Walgreen opened a new drug store in Petaluma, California. Shortly thereafter the Retail Clerks Union Local 1532 tried to organize the store’s employees, but lost a Board election in January 1971. In 1972 a second organizational attempt was made. The Union petitioned for a Board election on April 14, 1972. The election was set for June 14, 1972. On June 9, the Union wrote to the Company stating that it had a card majority of the employees and requested immediate recognition. This was refused by the Company. The Company does not contest, and the record shows, that prior to the election the Union held a valid card majority. The Union subsequently lost the election. Of the 21 votes cast, nine were for the Union, nine were against and three votes were successfully challenged.

I. The Unfair Labor Practices

The Administrative Law Judge found that the Company had violated § 8(a)(1) of the National Labor Relations Act by (1) interrogating employees about Union activities, (2) promising wage increases, (3) threatening to close the store if the Union won the election, (4) threatening denial of promotions to Union adherents, (5) threatening that the Company would refuse to sign a collective bargaining agreement, (6) creating an impression of surveillance of Union activities, and (7) imposing onerous work schedules to punish Union adherents. In addition, he found that the Company violated §§ 8(a)(1) and 8(a)(3) by its discriminatory discharge of clerk Debra O’Neil soon after the election.

The Board adopted the Administrative Law Judge’s findings, and in addition upheld a § 8(a)(1) charge, rejected by the Administrative Law Judge, regarding remarks made to Warren Whitney, the husband of an employee.

The unfair labor practices found by the Administrative Law Judge and the Board may be briefly summarized.

(1) Interrogating employees about Union activities

Store Manager James Thornton received the Union’s election petition on April 15. That day, he called checkout clerk Debra O’Neil into his office and asked her, in the presence of bookkeeper Audrey Milligan, when she had seen the Union representatives and why she wanted the Union. On subsequent occasions, Thornton interrogated four other employees as well as Warren Whitney, the husband of employee Judith Whitney.

(2) Promising wage and benefit increases

Also on April 15, Thornton told Debra O’Neil that all employees would be getting a raise. Audrey Milligan and Darlene Barlow heard the same promise that day,. as did employee Jim Stone, whose mother, Anna Jo Davidson, was also an employee. Thornton told Warren Whitney that the Company was working on “sick leave, improved hospitalization, and improved profit sharing, but [the Company] could not put such benefits into effect while the Union was in the picture.”

(3) Threatening to close the store if the Union won the election

When he promised Darlene Barlow her raise, Thornton told her that if employees voted the Union in, the store might close. In late April he told Darlene Barlow and Ron Morgan that the store would close if the Union won. Finally, Thornton told Warren Whitney that Richard Wessels, the Company’s Director of Employee Relations, had said that the store would have been closed had the Union succeeded in its prior campaign, and that the Company was “not about to let a store like that go Union.”

Shortly before the election, Assistant Store Manager Philip Johnson told Jim Stone that it would be cheaper for the Company to close the store rather than to sign a Union contract, since the store was operating at a loss. Later, Johnson used a pencil and paper to illustrate this argument to bookkeeper Audrey Milligan.

(4) Threatening denial of promotions to Union adherents

Thornton told Ron Morgan that support for the Union would mean loss of any chance to become an Assistant Manager and to participate in the training program. Thornton told bookkeeper Audrey Milligan that the Company would not promote her to auditor if the Union won. The Administrative Law Judge found these statements to be “good sound advice, tendered in the friendliest of spirit, but [they] did violate Section 8(a)(1) of the Act.”

(5) Threatening that the Company would refuse to sign a collective bargaining agreement

At various times before the election. Thornton told four employees and Warren Whitney that the Company would refuse to sign a contract, indicating that a strike would be necessary.

(6) Engaging in surveillance and creating an impression of surveillance of Union activities

Thornton believed until shortly before the election, mistakenly, that Judith Whitney strongly opposed the Union. He tried to enlist her husband to spy on the employees for him. Shortly before the election, Thornton told Audrey Milligan that he knew who had signed Union cards and insisted that she list those whom she believed had done so. After the election, Assistant Manager Johnson told the employees that the Company knew how everyone had voted.

(7) Imposing onerous work schedules to punish Union adherents

The Administrative Law Judge found that just prior to the election, Thornton knew that Debra O’Neil, Robert Levin, Audrey Milligan and Judith Whitney supported the Union. Immediately after the election, Thornton posted work schedule changes. Audrey Milligan, who had been bookkeeper ever since the store opened, was demoted to cigar counter cashier on the night shift. Pharmacist Levin was switched from a daytime weekday schedule to the night shift and was told that he would have to work weekends. Judith Whitney was switched from the day shift to the night shift, and Ginger Johnson was moved from nights to days, despite the fact that both employees preferred the prior arrangement and no legitimate reason for the switch was advanced by the Company.

(8) The discharge of Debra O’Neil

Debra O’Neil, an open Union adherent, was fired by Thornton on'August 4, 1972, allegedly for tardiness and rudeness to customers. Thornton testified that he discharged her because of a customer’s complaint that she had called him an S.O.B. The customer, Colonel Hoteling, denied that she had so addressed him, as did O’Neil.

The Administrative Law Judge credited the Colonel’s testimony that O’Neil had brusquely told the Colonel’s wife, when asked whether a certain item was in stock, “If it’s not there, it’s not there.” The Colonel’s complaint about that incident to Thornton was found to have been a pretext for a discharge actually motivated by a, desire to discourage Union membership in violation of §§ 8(a)(1) and 8(a)(3).

We find substantial evidence on the record to sustain the Board’s findings.

II. The Bargaining Order

The more difficult issue relates to the Board’s bargaining order issued pursuant to NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). In previous decisions the courts of appeals have directed the Board to make a detailed analysis and findings as to the three criteria necessary to support a Board order under Gissel. See, e.g., Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1118 (7th Cir. 1973); NLRB v. Copps Corp., 458 F.2d 1227, 1229-1230 (7th Cir. 1972); NLRB v. General Stencils, Inc., 438 F.2d 894, 901-902 (2d Cir. 1971). The judicial response to the Board’s continued failure has been divided. In some instances, cases have been remanded to the Board for further findings, see, e.g., New Alaska Development Corp. v. NLRB, 441 F.2d 491, 494-495 (7th Cir. 1971); NLRB v. General Stencils, Inc., supra, 438 F.2d at 901 — 902, 905; Clark’s Gamble Corp. v. NLRB, 407 F.2d 199, 202 (6th Cir. 1969); see also note 5 infra. Where Board findings are inadequate, however, in many instances the court has undertaken its own analysis of the record to determine whether the bargaining order should be enforced. See, e.g., NLRB v. Gruber’s Super Market, Inc., 501 F.2d 697 (7th Cir. 1974); Peerless of America, Inc. v. NLRB, supra, 484 F.2d at 1120; NLRB v. Kostel Corp., 440 F.2d 347, 352 (7th Cir. 1971).

The Board has not provided us with the requisite analysis in the instant case. However, notwithstanding the Board’s conclusory findings, where the unfair practices in the factual record are as pervasive as here, this court must give due recognition to the Gissel direction that

[i]t is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act (29 U.S.C. 160(c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts. See Fibreboard Paper Products v. NLRB, 379 U.S. 203 [, 85 S.Ct. 398, 13 L.Ed.2d 233] (1964). “[I]t is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.” Consolo v. FMC, 383 U.S. 607, 612 [, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131] (1966).

395 U.S. at 612 n.32, 89 S.Ct. at 1939.

Our enforcement on the present record is not intended to detract from the Peerless guidelines. This circuit’s requirement that the Board provide analysis and findings serves as a prophylaxsis against an arbitrary exercise of the Board’s power. When the Board has not done this, this court must balance the need for such findings on the overall record presented as against the inefficient process resulting from remand to the administrative agency. When the facts clearly show only isolated violations of § 8(a)(1), so that under any analysis a court would feel compelled to set aside a bargaining order, a remand would simply increase the administrative and judicial burden of all concerned. Cf. NLRB v. Gruber’s Super Market, Inc., supra; Peerless of America, Inc. v. NLRB, supra; Arbie Mineral Feed Co. v. NLRB, 438 F.2d 940 (8th Cir. 1971); Fremont Newspapers, Inc. v. NLRB, 436 F.2d 665 (8th Cir. 1970).

Equally, where the unfair labor practices are pervasive, the court must consider the Board’s recognized expertise in weighing the lack of feasibility in a remand. We find the latter situation to be the case here. Cf. NLRB v. Copps Corp., supra; NLRB v. Henry Colder Co., 447 F.2d 629, 630 (7th Cir. 1971); NLRB v. Drives, Inc., 440 F.2d 354 (7th Cir. 1971); NLRB v. Kostel Corp., supra.

The Board’s order is enforced.

PELL, Circuit Judge

(dissenting).

In the absence of a congressional mandate that this court should enter an enforcement judgment of administrative agency orders solely upon the request of the agency, I find myself considerably disturbed by the majority opinion in this case, the net effect of which is that since the agency has declined once again to follow the explicit and repeated direction of this court “to make a detailed analysis and findings,” we should therefore just drop the whole matter and order enforcement. I am particularly disturbed where what is involved is the extraordinary procedure of ordering an employer to bargain with a union which failed to demonstrate in a Board conducted secret election that it represented a majority of the employees. Accordingly, I respectfully dissent from that portion of the opinion which orders enforcement of the so-called Gissel order.

While I am confining my dissent to the Gissel aspect of the case, I think it is appropriate, as a threshold matter, to observe that the balance of the Board’s order is founded on an evidentiary basis which can only charitably be described as other than feeble. It is not necessary to look further than the Administrative Law Judge’s (ALJ) decision:

“As the hearing developed, I received the distinct impression that all witnesses, with the exception of Wessels, Johnson, Rogan and Hoteling had been programmed before taking the stand, and were simply responding to cues provided by their direct interrogators.”

Wessels, a lawyer, was at all pertinent times director of Employee Relations for Walgreen at its Chicago headquarters office. Johnson was assistant manager at the Petaluma store. Rogan at the time of the hearing before the ALJ, in December 1972, was assistant manager of the Petaluma store, having succeeded Johnson. He had been an employee at the time of the election and was examined briefly about the authorization card he had signed. His testimony (he had been called by the company) related mostly to the discharge of O’Neil. Hoteling, as indicated in the majority opinion, was not an employee but was a customer who had been involved in the O’Neil discharge incident which occurred in August 1972 about two weeks before Johnson left employment with Walgreen, all of which was approximately two months after the election, just prior to which the union held signed authorization cards from eleven of the twenty employees. Other than Wessels and Johnson, none of the witnesses named by the ALJ, whom he found to be the only witnesses testifying independently of cueing, and whose credibility it would seem he found superior, testified as to any of the unfair labor practices claimed to have vitiated the union majority at the time of the election. I find no support for the vitiation in the testimony of Wessels and Johnson.

Again, from the ALJ’s decision:

“Thornton [whose name was ordinarily spelled Thorton in the hearing transcript] did not remember what he had said to individual employees. Neither did witnesses called by the General Counsel have any clear recollection of the original events . . . Each witness, on the stand, attempted with varying success to conform his or her testimony, to the final version incorporated in the pre-trial affidavit Much of [Judith Whitney’s] testimony was elicited through grossly leading and suggestive questions
The only testimony which I regard as generally reliable is that of Wessels, Hoteling, Johnson and Rogan. Where the recollections of Johnson and Rogan differ, I have credited Rogan. Johnson is completely free of bias.”

Apropos of the last observation of the ALJ, it is of interest that the majority opinion states that Johnson took an active part in the Company’s unfair labor practices.

Further from the ALJ’s decision:

“Wessels [about May 11] then returned to Chicago where he prepared the literature to be used in the campaign. He delivered these papers in person to the District Manager in San Francisco on May 25, with specific instructions as to the date and method of distribution of each of seven communications. Some were to be mailed, others distributed by hand and others posted. On May 26 he saw Thornton at the store and gave him the literature which he was to distribute. Wessels’ instructions were followed to the letter. No statement in any of his propaganda is demonstrably untrue, and none exceeds the limits of Section 8(c) of the Act.
“The final act in Wessels’ campaign was a gathering at a fine restaurant after closing hours on June 13, election eve. Attendance was voluntary. Eligible voters, wives, husbands and their guests were welcome. Sandwiches, coffee and soft drinks were provided. Short talks were given by Respondent’s vice president, Canning, by its Division manager from Denver, by the two district managers, and by Wessels and Thornton. None exceeded the permissive limits of Section 8(c) of the Act.” (Emphasis added.)

Then applying a principle of credibility determination which apparently has no other source than the facile pen of Conan Doyle, the ALJ concluded that certain findings were indicated even though they were improbable:

“In The Sign of Four, Chapter VI, Sherlock Holmes admonishes Doctor Watson, ‘How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth.’ ” (Emphasis in original.)

After supporting his premise of improbability by an analysis of the witnesses’ testimony, the ALJ forged ahead to his Holmesian conclusion:

“There remains however, grossly improbable, uncontradicted testimony, which on the admonition of Sherlock Holmes, must be the truth.”

There remains a substantial question in my mind as to whether grossly improbable evidence, as it is characterized by the finder of fact, can be substantial evidence in an enforcement proceedings, particularly where the grossly improbable testimony was the only evidence of all of the pre-election claimed unfair labor practices. Assuming arguendo, however, that the record permits all of the order except the Gissel portion to sneak by on the basis of the limited scope of our review, I address myself to the order to bargain which I sincerely believe we cannot tolerate on this record. In this respect, I do not think we can ignore the ambivalency of the record as it was analyzed by the ALJ.

Thus as an initial matter on this phase of the case I note the ALJ’s finding that “Wessels could not believe that Thornton, with his loyalty, intelligence, experience and training would have overstepped legal limits.” In New Alaska Development Corp., 194 NLRB 830 (1972), the Board dismissed the 8(a)(5) allegations of the complaint (which significantly were not even filed in the complaint before us). The Board action followed a refusal by this court to enforce an order to bargain because the Board had not, “in accordance with the requirements of the Gissel case, made a proper analysis of the causal connection between the unfair labor practices and the undermining of the election process which would demonstrate that the holding of a free and fair election had been precluded.”

On that analysis being made, the Board concluded that there was insufficient ■ likelihood that illegal conduct would recur. While New Alaska is not on all-fours with the present case, there is substantial identity on significant points. In New Alaska, there had been two elections as here with some of the unfair labor practice conduct having occurred in the first election. I am unable to find any indication in the present record that there was any such claim as to the first Petaluma election conducted in January 1971. This has a secondary significance because Thornton was transferred as manager to Petaluma in November 1971 after the first election. It is also to be noted that, as it was found by the ALJ, Wessels could properly believe that Thornton would not overstep legal limits in the campaign, as Thornton had previously been manager in three different Walgreen stores operating under union contracts.

It is true in New Alaska that the erring employee was characterized as a minor supervisor whereas Thornton was the store manager. It is a matter of fairly common knowledge that the manager of a store which is a part of a large national chain is given very little high level discretion and operates under precise rules in carrying out his well-defined duties, however, it is not necessary to rely upon this knowledge in the present case. The record affirmatively shows that the company shots in labor union election campaigns were to be called by Wessels, the national director of labor relations for this 600 store chain. He did so and assumed because of Thornton’s background the directions would be followed. Indeed, the ambivalence .of the record is reflected in the ALJ’s finding that “Wessels instructions were followed to the letter.” The booklet which Wessels reviewed for four hours with Thornton was a “do and don’t” book and again in the words of the ALJ “is an excellent summary in less than 1500 words of the rights and limitations of management in a union organizing campaign.” Wessels obviously recognized that Thornton was going to be the chief day-to-day Walgreen representative at the store but apparently mistakenly thought he would not exceed the guidelines of proper procedure.

As I read this record the unfair labor practices to the extent that the “grossly improbable” testimony shows there were any which vitiated the union majority (which again needed only a change of one vote for any reason to be no longer a majority status) rests squarely on Thornton. There is some reference to Johnson, the assistant manager but the ALJ found him to be completely free of bias. Further, the record shows that Johnson was at the time of the hearing employed in a Safeway store where he was a member of the retail clerk’s union, and that he came to the Petaluma store in April 1970 as a second assistant manager, a position of so little supervisory consequence that he was eligible to and did vote in the first Petaluma election. It is patent that Johnson was dominated by Thornton in his position on the union organizational campaign and it appears equally obvious to me that in the absence of Thornton there would have been no unfair labor practices occurring at this store, one of the large chain which according to the record “has labor union agreements ... all over the country.”

It is at this point that we must note that Thornton was transferred to another store soon after his discharge of O’Neil. The majority opinion would dismiss the crucial significance of this as it bears upon the likelihood of there being a free and fair election now at Petaluma by noting that Thornton was transferred not discharged and assistant manager Johnson was not discharged or otherwise disciplined. Neither position lends support to the majority. In the first place, transferring Thornton does in my opinion imply disapproval of his managerial actions. In the second place, and even more significantly, the record shows that Thornton’s position with the company at another store is that of registered pharmacist despite his background of having managed several of the company’s stores. With regard to Johnson, as we have previously noted, he had already left Walgreen employment completely by November 1972 and the record just does not support an independent volitional participation in unfair labor practices on his part.

The ALJ, the Board and the majority of the panel hearing this case are willing to find that the conduct was of such gravity and pervasiveness that a bargaining order should be entered. Yet the record clearly belies pervasiveness of such magnitude. Despite the claim that Thornton’s conduct destroyed the union majority status, it is uncontradicted that this majority status was based upon the fact that from April 20, 1972 through May 31, 1972, the union held authorization cards from eleven of the employees of the appropriate twenty employee unit, and that the actual vote indicated a change of only one vote. It is no secret that occasionally peace at a place of work is purchased by the signing of an authorization card, the employee doing so being aware (at least in the absence of a Gissel order) that he will have the privilege of manifesting his actual desires on the subject in the privacy of the voting booth. Surely conduct pervasive enough to justify a Gissel order would have resulted in a somewhat greater exodus of support than that which occurred here.

Finally, the majority opinion, as indicated at the beginning of this dissent, is not unmindful of the repeated direction of this court that the Board should show by analysis (presumably not by conclusionary adjectives) the necessity of a Gissel order. The cases from this court are outlined in the majority opinion and need not be repeated here. The majority opinion notes that the Board has not provided us with the requisite analysis. As a matter of fact, the situation was not improved by the Board’s brief in this court which disposed of this important issue in two pages of general discussion of the Gissel law. The majority, however, while stating that it does not intend to detract from the Peerless guidelines, does just that. The reason for not remanding is apparently based on the feeling that the process is time-consuming and inefficient. That a remand would further delay bringing a labor dispute to a final conclusion is not the fault of this court. The remedy is readily available in the hands of the Board as is, indeed, the matter of making the process efficient not only after remand but by simply giving some analytic attention to this question eliminating the necessity of remand altogether.

Under the circumstances of this case as presented to us, it is utterly inconceivable to me that the claimed “unfair labor practices are ... so likely to have an inevitably lingering effect as to preclude the holding of a fair election,” Restaurant Associates Industries, Inc., 194 NLRB 1066 (1972). In my opinion, the record presented to us cries out for denying enforcement of the Gissel portion of the order.

      . The Company additionally complains that the bargaining order should not issue since the complaint did not contain a § 8(a)(5) charge. This circuit along with other courts of appeals has uniformly held that even absent a § 8(a)(5) violation, the Board’s authority to issue a bargaining order in favor of a Union which had majority support when it made its demand “is settled.” NLRB v. Drives, Inc., 440 F.2d 354, 366 (7th Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1971); accord, NLRB v. Dan Howard Mfg. Co., 390 F.2d 304, 309 (7th Cir. 1968); Wausau Steel Corp. v. NLRB, 377 F.2d 369, 373 (7th Cir. 1967); United Steelworkers v. NLRB, 126 U.S.App.D.C. 215, 376 F.2d 770, 772-773, cert. denied sub nom. Northwest Eng’r Co. v. NLRB, 389 U.S. 932, 88 S.Ct. 297, 19 L.Ed.2d 285 (1967); Steel-Fab, Inc., 212 NLRB 25, 86 LRRM 1474 (1974).

      . These oft-repeated tests need no further amplification. They are:
      (1) Did the Union have majority support in an appropriate unit prior to the impact of Company unfair practices?
      (2) Did Company unfair practices cause the Union to lose its majority?
      (3) Will lesser remedies be insufficient to overcome the impact of past unfair practices or to deter similar future conduct, so that a fair election could not be held within a reasonable time?

        See NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 614, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

      . In Peerless of America, Inc. v. NLRB, 484 F.2d 1108 (7th Cir. 1973), this court described the analysis necessary to support a bargaining order:
      We recognize that the determination of the immediate and residual impact of unfair labor practices may be a diffuclt task. . But by “specific findings” in this regard we hardly mean that the Board must determine how many employees actually were caused to abandon the Union. We mean only that it estimate the impact, taking into account the factors in the particular case which are indicative of actual effect or which plausibly, in the light of existing knowledge, would contribute to or detract from an actual impact. This is, after all, what the courts which have made their own analyses have done. Similarly the “detailed analysis” of the likelihood of recurring misconduct and of the potential curative effect of ordinary remedies only requires an appraisal of those factors which might reasonably have a bearing, such as whether the employer has a history of anti-union animus and Labor Act violations, whether the employer has taken affirmative rectifying measures or otherwise indicated his cooperativeness in assuring a fair election, etc.

        Id. at 1118 n.16.

      . Although the Board’s expertise in the Gissel area has been attacked (cf. Getman & Goldberg, The Myth of Labor Board Expertise, 39 U.Chi.L.Rev. 681, 683-84 (1972)), it must be recognized that it is Congress, the policy-making body of our government, which established the Board, 29 U.S.C. § 151 et seq., and the Supreme Court in Gissel which has given its imprimatur to the Board’s expertise. In Gissel, the Court recognized in one of the cases (General Steel) that although the Board had not made specific findings to justify a Gissel order, they might nonetheless be implicit in the Board’s order. 395 U.S. at 616, 89 S.Ct. 1918.

      . The years consumed on remand have seldom been compensated for by more detailed analysis of the need for a bargaining order by the Board, which was the reason for remand in the first place. For example, in December 1972, the Second Circuit finally denied enforcement to a bargaining order based on unfair practices during the summer of 1967, five years earlier. The Board’s original order in the case was not issued until August 1969, General Stencils, Inc., 178 NLRB 18, 71 LRRM 1652 (1969), and enforcement was not sought until late in 1970. In January 1971, the Second Circuit remanded the case with directions to amplify the need for a bargaining order. NLRB v. General Stencils, Inc., 438 F.2d 894 (2d Cir. 1971). The Board’s supplementary opinion issued in March 1972, 195 NLRB 173, 79 LRRM 1608 (1972), was again found insufficient by the Second Circuit, but rather than a second remand, the court denied enforcement. 472 F.2d 170 (2d Cir. 1972).
      Even worse has been the General Steel litigation from the Fourth Circuit, which has consumed ten years between the commission of unfair labor practices in 1964 and the court’s enforcement of the Board’s bargaining order in October 1974. In the interim, the Board had originally ordered bargaining, General Steel Products, Inc., 157 NLRB 59, 61 LRRM 1417 (1966), and the Fourth Circuit denied enforcement, 398 F.2d 339 (4th Cir. 1968). The Supreme Court granted certiorari and reversed this case and three others in Gissel, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). On remand, the Board again ordered bargaining in conclusory language. 180 NLRB 8, 72 LRRM 1579 (1969). The Fourth Circuit again refused to enforce the bargaining order, citing the Board’s lack of detailed analysis. 445 F.2d 1350 (4th Cir. 1971). On the second remand, the Board ordered an election rather than bargaining, 199 NLRB 121, 81 LRRM 1513 (1972). In December 1973, the Company objected to the second election won by the Union. The Board overruled these objections and entered another bargaining order, 207 NLRB 112, 85 LRRM 1003 (1973). This order was recently enforced. General Steel Products v. N.L.R.B. 503 F.2d 896 (4th Cir. 1974).

      . The Company claims that the Board erred in ordering bargaining despite the fact that Manager Thornton was transferred to another stote soon after his discriminatory discharge of Debra O’Neil. We disagree. Even assuming that changes in management, occurring after pervasive unfair labor practices have successfully undermined a union’s card majority, might sometimes militate against a bargaining order, cf. NLRB v. Gruber’s Super Market, Inc., supra, and Peerless of America, Inc. v. NLRB, supra, we are not persuaded that the Board erred here. Thornton was transferred, not discharged, and there is no indication that employees saw the transfer as a punishment rather than as a promotion. Further, Assistant Manager Philip Johnson, who also took an active part in the Company’s unfair labor practices, was not discharged or otherwise disciplined.

      . In order to avoid any misunderstanding, and contrary to the implications of Judge Pell’s dissent, we have carefully weighed the ALJ’s unfortunate rhetoric. Notwithstanding his confusing reference to Sir Conan Doyle’s literary quest for truth (“There remains however, grossly improbable, uncontradicted testimony, which on the admonition of Sherlock Holmes', must be the truth.”), the ALJ did carefully weigh the evidence and make proper findings of fact. He noted: “No witness was conscious of any deliberate prevarication. No witness had any clear uncontaminated recollection of the original event described in his or her testimony.” The ALJ then made sixteen specific findings of fact, carefully analyzing the testimony of each witness, crediting some and discrediting others. For example, in discussing the illegal promise of wage increases he found:
      Neither can I credit the testimony of Brandner, Davidson, Ginger Johnson or Barlow as to the amounts promised. These are all intelligent literate persons, who must be charged with knowledge that both wages and prices were limited by Executive Order under the Wage Stabilization Act. I nevertheless, base the above finding on Thornton’s admission that he did tell some employees, including O’Neil, that he was recommending raises, on the fact that there is no corroboration of Thornton’s testimony as to the date of his telephone call to Saunders, no credible corroboration of Thornton’s testimony that any of these promises were made before April 15, and the fact that there is no reason on this record, other than receipt of the Union’s petition, for telling employees in April, 1972, that they would receive raises. These promises of wage increases restrained and coerced employees in the exercise of Section 7 rights.
      We think the substance of the overall findings of fact to be more significant than the literary idiosyncrasies of the hearing judge. Additionally, we give weight to the Board’s analysis of the ALJ’s findings. The Board stated in footnote 1 of its opinion:
      The Respondent and the General Counsel have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board’s established policy not to overrule an Administrative Law Judge’s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings.
      206 NLRB No. 15.
      The test we apply is, of course, whether the Board’s order is supported by substantial evidence on the record as a whole. We think a fair reading of the record clearly establishes this.
      The dissent describes the evidence supporting the unfair labor practices as “feeble.” We find it “pervasive.” Herein lies our essential disagreement over the appropriateness of the Board’s bargaining order.