author: JAMES M. CARTER, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOCTORS’ HOSPITAL OF MODESTO, INC., Respondent.
    No. 72-1405.
    United States Court of Appeals, Ninth Circuit.
    Dec. 27, 1973.

      Vivian A. Miller (argued), National Labor Relations Board, Washington, D. C., Roy O. Hoffman, Director, Region 20, NLRB, San Francisco, Cal., for petitioner.
    J. Richard Thesing (argued), Littler, Mendelson & Fastiff, San Francisco, Cal., California Nurses Ass’n, San Francisco, Cal., for respondent.
    Before MERRILL, CARTER and GOODWIN, Circuit Judges.
   JAMES M. CARTER, Circuit Judge:

In this case, the court of appeals reviews the actions of the National Labor Relations Board in a representation proceeding and an unfair labor practice proceeding for refusal to bargain. The questions presented concern the Board’s power and expertise in determining (1) whether in a proper bargaining unit certain employees should have been excluded as “supervisors,” and (2) whether an election was impaired because certain nurses voted subject to challenge, and because eligible nurses allegedly were prevented from voting by a descriptive error of classification in the Board’s Decision on Review. We enforce the order.

The employer operates a proprietary hospital for approximately 150 patients. It has the facilities customarily found in a general hospital, including operating and recovery rooms, an obstetrical department, and an intensive care/cardiae cai’e unit (IC/CCU).

The levels of nursing management authority in the hospital were:

First level: The director of nurses (1 in number);

Second level: A day (A.M.) supervisor, an afternoon (P.M.) supervisor, and a night supervisor (3 in number);

Third level: Operating room supervisor, recovery room head nurse, obstetric supervisor, IC/CCU head nurse, central supply supervisor (5 in number); and floor head nurses on day (A.M.) duty in the A, B, C and D wings (4 in number)

The hospital is staffed with 40 full-time registered nurses, 32 regular part-time registered nurses, and eight registered nurses who work sporadically on an emergency basis; 85 full-time and part-time licensed vocational nurses (LVN’s); 90 full-time and part-time nurses aides; and 50 orderlies and other service and maintenance employees.

This proceeding began on May 8, 1968, by the filing of a petition for an election by the California Nurses Association (hereafter C.N.A.), seeking to represent all the employer’s registered nurses. Originally the employer contended that all registered nurses were acting in a supervisory capacity and thus were not “employees” within the meaning of the National Labor Relations Act.

Following a hearing, the Regional Director for Region 20, on June 28, 1968, issued a Decision and Direction for an election in which he found the appropriate bargaining unit.

The employer Doctors’ Hospital, requested Board Review and on April 14, 1969, the Board issued its Decision on Review, reported at 175 N.L.R.B. 354. It affirmed the Regional Director’s findings, with certain exceptions. Contrary to the Regional Director’s Decision, the Board found that the head floor nurses on A.M. duty in A to D wings of the hospital and the operating room supervisor were “supervisors” within the meaning of Sec. 2(11) of the Act, 29 U.S.C.A. § 152(11), and excluded them from the bargaining unit. The Board was unable to determine from the record whether certain other nurses— the obstetric supervisor, the obstetric “charge” nurses, and the recovery room head nurse — were “supervisors” within the Act and permitted them to vote, subject to challenge. The Board inadvertently stated that there was a head floor nurse on duty on each of the A.M., P.M. and night shifts.

On May 12, 1969, the Board conducted the election. Of the 60 ballots cast, 13 were for the union, 18 were for no union representation, and 29 were challenged.

A hearing was held on the challenges and a Hearing Officer, on August 22, 1969, issued a report recommending that the challenge to the ballots of the recovery room head nurse and obstetric supervisor be sustained on the ground they were “supervisors” under the Act; that the challenges to the ballots of five obstetric nurses be overruled on the ground that they were not “supervisors”; and that the remaining 22 challenges be overruled.

The employer sought and obtained Board Review of these recommendations. On June 22, 1970, the Board issued a Supplemental Decision, reported at 183 N.L.R.B. No. 94. It adopted the Hearing Officer’s recommendations to sustain the challenges to the ballots of the obstetric supervisor and the recovery room head nurse. It also sustained the challenge to the ballot of the intensive care/eardiac care unit (IC/CCU) head nurse on the ground that her duties had changed since its earlier decision. The Board overruled the remaining challenges and directed that the 26 challenged ballots be counted. The Board corrected its error as to the “charge” nurses on duty on the P.M. and night shifts and held they were not supervisors and were entitled to vote.

On June 30, 1970, the Board issued a revised tally showing 57 valid ballots cast; 29 for the union and 28 against it. On July 7, 1970, the Board certified the union, C.N.A., as the bargaining representative of the employer’s registered nurses in the unit found appropriate.

The employer filed objections to conduct affecting the May 12, 1969, election, which the District Director rejected as untimely filed. Thei Board, on August 20, 1970, denied a motion to revoke and withdraw the certification of C.N.A. The employer refused to bargain on the ground the certification was invalid.

On September 15, 1970, the C.N.A. filed an unfair labor practice charge under Section 8(a)(5) and (1) of the Act, 29 U.S.C.A. § 158(a)(5) and (1). The employer conceded its refusal to bargain but contended the certification was invalid on the ground that the Board’s eligibility findings were improper, that the Board erred in permitting votes subject to challenge, and that the descriptive error in the Decision on Review caused certain eligible voters to refrain from voting.

A Trial Examiner conducted a hearing and on May 5, 1971, filed his findings and Decision. The Trial Examiner listed the four contentions of the employer: (1) That the Hearing Officer in the original hearing on May 24, 1968, restricted the employer’s presentation of evidence; (2) That the Board by its April 14, 1969, Decision (175 N.L.R.B. 354) prejudiced the election and caused eligible voters to refrain from voting by its action as follows: (a) The IC/CCU head nurse was included in the unit; (b) The obstetric supervisor, the recovery room head nurse, and the “charge” nurses were permitted to vote, subject to challenge; (c) The Board’s admittedly erroneous statement in its April 14, 1969, Decision classified as head floor nurses those nurses who worked and were “in charge” on the P.M. and night shifts; (3) That the Board’s Supplemental Decision (183 N.L.R.B. No. 94) improperly included within the unit registered nurses who worked as “charge” nurses in IC/CCU and on floors and wings during the P.M. and night shifts, and registered nurses who worked as relief for the obstetric supervisor; (4) That the Regional Director erred in rejecting the employer’s objections to the election as untimely filed; and that the Board erred in the denial of the employer’s motion to revoke the certification.

The Trial Examiner ruled that contentions Nos. (1), (3) and (4) had been previously ruled on by the Board and that contention No. (2) (concerning prejudice to the election) was not well taken.

On October 20, 1971, the Board summarily affirmed and ordered the employer to bargain with the C.N.A. 193 N.L. R.B. No. 123.

The Board petitioned for enforcement of its order to bargain. The record was filed on April 19, 1972. The Board’s brief here was filed over three months later, on July 31, 1972. The employer’s brief was filed on November 16, 1972, three and one-half months after the filing of the N.L.R.B. brief. The panel of this court heard argument on December 10, 1973, five years and seven months after the petition for election filed May 3, 1968, which initiated this proceeding.

The court accepts responsibility for being unable to calendar the case for over a year after the last brief was filed. We do not pass judgment as to fault on the time elapsed until the last brief was filed. But the total time elapsed is too long.

We now have for review both the representation and the unfair labor practice proceedings.

The employer now makes two major contentions: (1) That a significant number of supervisors were improperly included in the unit, and (2) the Board’s admittedly inaccurate description of classifications eligible to vote impaired the election process.

The employer’s first contention centers upon the relief head nurses, the obstetric nurses, and the relief IC/CCU head nurse on the P.M. and night shifts, and the “charge” head nurses (those in charge of wings or floors on the P.M. and night shifts) who were included in the unit.

The unit as finally established excluded the three top levels of nursing management and included the other full-time and part-time registered nurses, with the exception of the eight emergency nurses who worked sporadically.

Thus the Board found 13 nurses were supervisors under the meaning of the Act. The employer is now urging that at least 35 of its 40 full-time and 32 regular part-time nurses (35 of 72) are supervisors.

The employer contends that the registered nurses presently in dispute are “supervisors” because they may assign and direct auxiliary personnel such as licensed vocational nurses (LVN’s) and nurses aides, or because they periodically relieve nurses found to be supervisors.

The Board has a “special function” of applying the “general provisions of the Act to the complexities of industrial life.” N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963). Where, as here, the specific issue involves the application of a broad statutory term (“supervisor”) and the Board has the authority and duty to. make the interpretation in the first instance, its “determination . . . is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.” N. L. R. B. v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944). See also, N. L. R. B. v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968).

The burden is on the employer to prove the Board was wrong. The Board has a “wide degree of discretion” granted it to regulate and supervise elections. N. L. R. B. v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). See also, N. L. R. B. v. Waterman Steamship Co., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704 (1940).

The leadman or straw boss may give minor orders or directives or supervise the work of others, but he is not necessarily a part of management and a “supervisor” within the Act. The fact that nurses are highly trained professionals and occasionally use independent judgment does not necessarily make them part of management or “supervisors” under the Act. See Ross Porta-Plant, Inc. v. N. L. R. B. (5 Cir. 1968), 404 F.2d 1180, 1182; Northern Virginia Steel Corp. v. N. L. R. B. (4 Cir. 1962), 300 F.2d 168, 172; N. L. R. B. v. Security Guard Service (5 Cir. 1967), 384 F.2d 143, 149; N. L. R. B. v. Parma Water Lifter (9 Cir. 1954), 211 F.2d 258, 261, cert. denied, 348 U.S. 829, 75 S.Ct. 51, 99 L.Ed. 654; N. L. R. B. v. Swift & Co. (9 Cir. 1957), 240 F.2d 65, 66-67; N. L. R. B. v. Brown & Sharpe Mfg. Co. (1 Cir. 1948), 169 F.2d 331, 334.

We rely on the Board’s expertise in this type of problem. On the whole record, the Board did not abuse its discretion, and its fact-finding was not clearly wrong.

As to the employer’s second contention, we hold the Board properly found that the election was not impaired because certain nurses were permitted to vote subject to challenge. Such challenge procedures are part of a longstanding practice of the Board. The challenge procedures will not be disturbed except for an abuse of discretion. N. L. R. B. v. Corral Sportswear Company (10 Cir. 1967), 383 F.2d 961, 965; see Riverside Press, Inc. v. N. L. R. B. (5 Cir. 1969), 415 F.2d 281, 282-284, cert. denied, 397 U.S. 912, 90 S.Ct. 915, 25 L.Ed.2d 94.

On the whole record, the employer never identified the nurses who allegedly engaged in union activity, or proved that nurses permitted to vote subject to challenge, who were later found to be supervisors, had participated in the union pre-election campaign, and that this had a coercive impact on the employees’ votes.

Nor did the Board’s admittedly inaccurate statement in its April 14, 1969, Decision require the Board to accept the employer’s contentions that the “charge” nurses were confused and, as a consequence, refrained from voting.

The Board’s official election notice, posted on the employees’ bulletin board, properly listed the nurses who were ineligible to vote. It did not list “charge” nurses as excluded.

Any confusion as to eligibility was directly attributable to the employer’s election campaign. Again we rely on the Board’s expertise. The Board’s decision was not erroneous.

Enforcement granted.

      . Sec. 2(11) of the Act, 29 U.S.C.A. § 152(11):
      The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

      . The Board’s Decision contained an inadvertent statement to the effect that “On duty in each wing [A, B, C and D wings] on each shift is a registered nurse who has the title ‘floor head nurse’ . . . .” (Emphasis supplied).
      It was clear that the floor head nurse in charge during the A.M. shift was a “supervisor.” The Board’s statement implied that the floor head nurses in charge on the P.M. and night shifts were also “supervisors.” The employer seized on this statement to contend that the nurse “in charge” on the P.M. and night shifts was a “supervisor.”


source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge:

license: Public Domain

text:
    COASTAL PETROLEUM COMPANY, Petitioner-Appellee, v. SECRETARY OF THE ARMY OF the UNITED STATES of America, et al., Respondents, Trustees of the Internal Improvement Trust Fund of the State of Florida, Respondent-Appellant.
    No. 71-2589.
    United States Court of Appeals, Fifth Circuit.
    Dec. 6, 1973.
    Rehearing and Rehearing En Banc . Denied March 29, 1974.
    See 491 F.2d 973.

      William Huggett, Robert J. Beckham, Miami, Fla., for respondent-appellant.
    Charlie Luckie, Jr., Tampa, Fla., C. Dean Reasoner, Washington, D. C., Joseph C. Jacobs, Tallahassee, Fla., Irving R. M. Panzer, Washington, D. C., for petitioner-appellee.
    Robert W. Rust, U. S. Atty., Miami Fla., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., William E. Welch, Acting Dist. Counsel, Corps of Engineers, Jacksonville, Fla., Stanley R. Re-sor, Secretary of the Army, Washington, D. C., Gen. Litigation Section, Land & Nat. Resources Div., U. S. Dept, of Justice, Washington, D. C., Robert Grafton, Central and South Fla. Flood Control Dist., West Palm Beach, Fla., Daniel S. Dearing, Chief Trial Counsel, Dept, of Legal Affairs, Tallahassee, Fla., for other interested parties.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

This case presents another of those instances in which the Federal bench is called upon by the Erie siren call to divine the correct substantive principle of State law from the cold, plain words of a State statute. While it is clear that it is incumbent upon us as judicial officers of the United States to adjudicate cases and controversies properly within the jurisdiction of our court, we are bound too by the chords of Federalism to give proper deference to the laws of the several States and the final power and duty of the judicial officers of those States to interpret those laws. Fortunately, the laws of the State of Florida and the rules of its Supreme Court allow us to accommodate our desire to correctly apply the rule of law of the forum State to the case currently before the court by certifying these matters to the Supreme Court of Florida.

What started put as a contest between Coastal (Lessee) and the United States Army Engineers to obtain a permit to drill for limestone in Florida’s Great Lake Okeechobee ended up in its present simple, but decisive, struggle between Coastal (Lessee) and Florida. At stake are not only the likelihood of millions of dollars viewed from a commercial perspective, but the conservation of this great natural resource by Florida for its citizens, and in which it has at least for the moment a staunch ecological ally.

Validity of the underlying leases turns on the construction and application of Florida statutes and the actions of Coastal and the Trustees under the leases. Consequently we are dealing not only with Florida law — over which, unlike a diversity federal court, Ford Motor Co. v. Mathis, 5 Cir., 1963, 322 F.2d 267, 269, Florida has not only the latest, but the last word- — but with matters of great public concern. Fortunately for Florida matters of such public moment need not be exposed to the risk of an Erie guess by Federal Judges, no matter how competent and conscientious. For thanks to its enlightened procedure we now, as we have done many times, certify this to the Supreme Court of Florida.

For our purposes we can sketch the background broadly with no purpose to hem in the Supreme Court of Florida. Pursuant to its statutory authority to lease state lands for the development of sources of oil, gas, and other minerals, Florida Statutes, Chapter 253, F.S.A., the Florida Board of Trustees for the Internal Improvement Trust Fund leased several tracts of land at the bottom of Lake Okeechobee to Coastal’s assignor in the early 1940’s. The leases have been the subject of prior litigation. The Trustees filed suit in 1945 seeking a declaratory judgment to the effect that the leases were valid. In Watson v. Holland, 1945, 155 Fla. 342, 20 So.2d 388, the Supreme Court of Florida was again presented with an opportunity to rule on the leases. That court held in Collins v. Coastal Petroleum Co., Fla.App., 1960, 118 So.2d 796, that the leases encompassed the production of all mineral resources, not merely oil and gas.

As the case comes to us, decision on the validity of the leases turns on whether Coastal has complied with the exploratory and developmental drilling obligations imposed by certain Florida statutes and the terms of the resulting leases. The question was not so much what — from a physical operational standpoint — had been done, but whether such activities undertaken on the various tracts and leases satisfied the statutory/lease obligations as to the specific leases at issue (see note 6, supra). This is entirely a Florida question on which there are not Erie lights which justify risking these vital interests by an erroneous decision.

We again followed our experience-born judgment that counsel can best prepare the certificate of the statement and question to be certified (see cases in note 5, supra). A letter directive from our Clerk called on counsel to formulate a statement with questions as to which both parties agreed with points of difference being pinpointed with supporting memoranda pro and eon for choices by this Court. After months of strenuous efforts and numerous meetings this was filed in a way that has enabled us readily to make and indicate our choices.

Some general comments are in order. Coastal insists that compliance with exploratory drilling obligations was not in the case below and there are insufficient facts in the record upon which to meaningfully certify the related questions. There are several answers. First, this was expressly put in direct issue in the complaint, answer and various cross claims. Indeed, it was this very contention of the Board of Trustees which the Department of the Army regarded as decisive (see note 3, par. 2).

Next, the record is filled with voluminous schedules, charts and tabular materials showing what Coastal has done on these and other leases which Coastal urges they were allowed by the Trustees to “borrow” to validate the leases here in question.

And to cap it all off, in the jointly acceptable portion of the appended certificate (par. 2) this claim and denial is precisely set forth.

Finally, the Supreme Court of Florida is well equipped to handle factual matters as witness its most recent opinion in response to our certification. Allen v. Estate of Carman, Fla., 1973, 281 So.2d 317 in response to certification, 5 Cir., 1971, 446 F.2d 1276 and our opinion after certification, 5 Cir., 1973, 486 F.2d 490, p. 491 as to the question of the Florida Court’s resolution of factual disputes.- The Supreme Court has plenary power to determine whether there is from its Florida point of view an adequate basis for answering the questions.

QUESTIONS CERTIFIED

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME -COURT OF FLORIDA, PURSUANT TO § 25.031, FLORIDA STATUTES 1971, AND RULE 4.61, FLORIDA APPELLATE RULES.

To the Supreme Court of Florida and the Honorable Justices thereof:

It appears to the United States Court of Appeals for the Fifth Circuit that the above-styled case in this Court involves a question or -proposition of the law of the State of Florida which is determinative of the cause, and there appear to be no clear, controlling precedents in the decisions of the Supreme Court of Florida. This Court hereby certifies the following questions of law to the Supreme Court of Florida for instructions concerning said questions of law, based on the facts recited herein, pursuant to § 25.-031, Florida Statutes 1971, and Rule 4.61, Florida Appellate Rules as follows :

1. Style of the Case

The style of the ease in which this Certificate is made is Coastal Petroleum ■Company v. Secretary of Army of United States, and Trustees of Internal Improvement Trust Fund of State of Florida, being Case No. 71-2589, United States Court of Appeals for the Fifth Circuit; such case being an appeal from the United States District Court for the Southern District of Florida.

2. Nature of the Case

This is a case in which Coastal Petroleum Company brought suit in August, 1968, in the Federal District Court, against certain federal officials and state officials, seeking to compel the issuance of a federal permit for drilling for limestone under its Drilling Lease 248. The Trustees of the Internal Improvement Trust Fund, defendants in the case, filed on April 23, 1969, an answer containing a counterclaim alleging that Lease 248 should be declared void for failure of Coastal to comply with the drilling obligations of the lease. Coastal then, on May 12, 1969, filed a counterclaim to that counterclaim, seeking a declaration that all three of its Leases, Lease No. 224-A, Lease 224-B and Lease 248 be declared valid and binding leases and asserting that Coastal had fully complied with each and every term, condition and obligation of the leases. On May 6, 1969, the Trustees filed an action in state court seeking a declaration that all three leases should be declared void as against public policy; this action was then removed to the federal court and consolidated with Coastal’s earlier action there. The leases were held valid by the District Court.

On appeal by the Trustees, all issues have been eliminated except the question as to whether Coastal’s three leases are void for a failure by Coastal to comply with the drilling requirements.

3. Statement of Facts

Title to publicly-owned lands, including bottoms of salt and fresh waters, of the State of Florida, is irrevocably vested in the Trustees of the Internal Improvement Fund of the State of Florida for management and sale. Florida Statutes 253.01 and 253.02, F.S.A.

In 1941, Arnold Exploration, Inc., renamed Coastal Petroleum Company, entered into a contract with the Trustees which was designated “Exploration Contract for Oil, Gas and Minerals and Option to Lease”. This contract was entered into pursuant to the authority of the Trustees granted by Chapter 20,680, Laws of Florida, Acts of 1941.

In 1944 the Trustees and Coastal entered into Drilling Leases 224-A (App. Ex. 26) and 248 (App.Ex. 44, 46); in 1946 they entered into Drilling Lease 224-B (App. 73) [App.Ex. 23, 27]. Each recites that it was executed pursuant to the exploration contract above-mentioned and specifically refers to Chapter 20,680. These contracts were re-executed in 1947.

In 1945, Chapter 22,824 of the Laws of Florida was enacted which granted new and different authority to the Trustees to issue oil and gas leases.

The change in the 1945 Statute, which is pertinent to the issue at bar, relates to drilling requirements: the 1941 Statute required one test well to be drilled on the lands leased within the first five-year period, and one additional well in each succeeding five-year period. The 1945 Statute required one test well to be drilled every two -and one-half years each to a minimum depth of 6,000 feet.2

Each lease stipulates that if any sentence, paragraph, clause or provision of the re-executed drilling lease is invalid by virtue of a Florida law enacted subsequent to October 4, 1941, then the provisions of the original lease take precedence over the re-executed lease.

The only leases physically in the record are the re-executed leases of 1947. They require one test well to be drilled on, or contiguous to, each drilling block located in the lease within the first five-year period of the lease and the drilling of at least one additional well in each succeeding five-year renewal period upon, or contiguous to, each separate drilling block, each well to be drilled to a depth of not less than 6,000 feet. Each lease states: “If no well shall be commenced within the first five-year period, all rights to renew this lease shall become unenforceable and the entire lease shall be void, and if during each subsequent five-year renewal period hereof no well or wells be commenced as required herein, such renewal lease contract in its entirety shall become terminated as to any area in such drilling block not in a status conformable in this particular with the requirements of this lease”.

The pattern of the three Coastal leases is that a “primary term” of five years is prescribed in each lease. If, at any time within that period, Coastal satisfied its two lease obligations of (1) drilling, and (2) rental payments, another five-year period would automatically start running, and if Coastal satisfied the lease obligations at any time within the second five-year period, another such period would commence to run, and so on for successive five-year periods; the fifth five-year period has not yet ended because the District Court suspended all obligations under the leases until the termination of this litigation.

The 1941 and 1945 Statutes both contain provisions providing that the “leases shall be void” thereunder if certain drilling requirements are not met within each term. The leases also contain provisions that they “shall be void” if certain drilling obligations are not met.

It is uncontested that Coastal has drilled more total footage than these leases require. Some of that footage was on other lands (on which the Trustees had a one-eighth overriding royalty) not covered by Coastal’s leases.

Throughout four full five-year periods of each lease, the Trustees repeatedly adopted formal resolutions to the effect that Coastal had satisfied all its drilling obligations. Some of the resolutions related to footage on other lands (on which the Trustees had a one-eighth overriding royalty) not covered by Coastal’s leases, and credited some of this footage towards satisfaction of the obligation of the leases. Without such credits from such other lands, the Trustees would not have been able to adopt these resolutions of compliance.

Coastal has never complied with the drilling obligations imposed by the 1941 and 1945 Statutes or by the leases themselves (App.Ex. 66-71).

The Trustees have certified by formal resolution many times during the life of these leases, that Coastal — as a result of allocations or credits of footages drilled in areas not covered by these leases— has met all its drilling obligations and all its rental payments. (App.Ex. 66-71).

During the fourth five-year period, Coastal did not fulfill the drilling requirements of Leases 248 and 224-A, and the Trustees did not certify that the drilling requirements had been met as to those Leases 248 and 224-A. (App.Ex. 71, 67).

Following those certifications by the Trustees, Coastal has continued to expend monies and pay rentals under the leases, and Coastal has entered into contracts with other companies for drilling pursuant to which large expenditures were made. The most recent example of this was in 1965 when Coastal contemplated entering into a contract with So-cony Mobil Oil Company for drilling under these leases. This contract (which, as the District Judge in this case found, “stated that the leases were not encumbered”) was presented to the Trustees in advance under a provision of each lease requiring written consent in advance from the Trustees. By formal resolution, the Trustees gave their consent and approved the contract.

An employee of the Trustees then wrote a letter to Mobil advising Mobil that Coastal possessed drilling credits available for satisfying the lease requirements.

Following the Trustees’ formal resolution and receipt of the letter described above, Mobil and Coastal proceeded under the contract, and Mobil expended over three million dollars ($3,000,000) on this matter.

The 1941 statute states that a test well shall be drilled on each lease within each five-year period whereas the 1945 statute requires one test well to be drilled every two and one-half years, each well to have a minimum depth of 6,000 feet.

In reply to Coastal’s contention that the 1941 statute was never raised by the Trustees in the trial court, this is not a proper question to be certified to the Florida Supreme Court as it is asking the Fifth Circuit to tell the Florida Supreme Court that it is impossible to answer some questions because of lack of evidence.

The three leases require certain annual rental payments to the Trustees aggregating $69,600.32. Over the period of these leases, some twenty-five years, Coastal Petroleum Company has paid and the Trustees have accepted the sum of one million, five hundred five thousand, one hundred forty-six dollars ($1,505,146.00) as rental. The total expenditures made by Coastal and its associates pursuant to these leases, including the above rental payments, amount to the sum of sixteen million, three hundred seventy thousand, ninety-seven dollars and seventy-four cents ($16,370,-097.74).

The leases also require that royalties of one-eighth of production be paid the Trustees by Coastal. Over the period of these leases, no royalties have been accrued or paid, since there has been no production.

The leases each contain a notice provision to the effect that a breach of lessee’s obligations shall not work as a forfeiture of the lease or be ground for cancellation, except as forfeitures may be imposed by laws of the State, and further providing that if the Trustees believe at any time that lessee is not complying with the lease, they shall notify lessee in writing of the facts relied upon as constituting a breach, and lessee (if in default) shall have thirty days in which to commence compliance.

No written notification was given Coastal by the Trustees of facts claimed by the Trustees to constitute a breach of the lease, other than the complaint filed by the Trustees in the state court and the answer and counterclaim filed by the Trustees in the Federal Court.

The parties to this action have been in litigation concerning these leases at least five times. Those cases are Watson v. Holland, 155 Fla. 342, 20 So.2d 388 (1944); United States v. Certain Lands in Citrus County, Florida, C.A. No. 162, United States District Court for the Southern District of Florida, decided November 2, 1954; Collins v. Coastal Petroleum Company, 118 So.2d 796 (Dist.Ct.App.Fla.1960), certiorari discharged, 125 So.2d 300; Coastal Petroleum Company v. Bryant, Chancery No. 18569, Circuit Court of the Second Judicial District, Leon County, Florida, decided May 17, 1963; and Burns v. Coastal Petroleum Company, 194 So.2d 71 (Fla.App. 1st Dist., 1967).

The Trustees did not, in any of the above cases, file a counterclaim to declare Coastal’s leases void for failure to meet its drilling obligations, or plead or even suggest that Coastal had failed to meet its drilling obligations under a statute or under its leases. However, Coastal in the above cases never sought a declaration of those same issues.

In still another case in which Coastal was not a party, and in which the issues in the present case were not involved or adjudicated, Kirk v. Flowers, No. 6720, Circuit Court of the Twelfth Judicial Circuit in and for Charlotte County, Florida, decided in 1967, the Trustees asserted the validity and primacy of Coastal’s leases in attacking a County zoning ordinance which would have barred offshore well drilling. The Trustees told the court that because the State’s authority was preemptive beyond three miles from the shore, their power to execute leases under State law was superior to the County’s zoning power; that Coastal’s leases were valid; and-that if the ordinance was not invalidated, the Trustees would be obligated to refund all of Coastal’s rental payments and other expenses incurred by Coastal and its associates. The Court held the County regulation invalid because the subject matter was exclusively granted to the State, the area involved being beyond the three mile limit from Charlotte County.

QUESTIONS TO BE CERTIFIED

1. Are Coastal’s rights and obligations governed by the 1941 statute, the 1945 statute, or by both statutes? Both 1941 and 1945 statutes are to be considered.

2. Where the State of Florida has granted oil, gas and mineral leases under the authority of a statute, which contains express provisions and criteria as to drilling requirements and performance standards:

(i) Would the leases be void as a result of non-compliance with the drilling obligations imposed by (a) said statute, or (b) the leases themselves?

(ii) If so, could the Trustees, by resolution, effectively excuse noncompliance with drilling obligations ?

(iii) Does an employee of the Trustees, holding no office, have the power to waive the requirements of said statute or the leases by writing an advisory letter ?

3. Does failure to fulfill statutory drilling requirements automatically cancel the leases?

(i) If not, is written notice by the Trustees a condition precedent before the leases become void?

(ii) If so, were the pleadings herein sufficient written notice by the Trustees ?

Does paragraph 22 of each of Coastal’s leases, embodied in each lease prior to its modification, permit Coastal to have a reasonable time to comply with statutory requirements in the event a sentence, paragraph, clause or provision of the modified lease is held invalid ?

4. Does failure to comply with the statutory and lease drilling requirements, if proven, automatically determine that the lessee has not operated as a reasonably prudent operator ?

5. Are these issues foreclosed by principles of res judicata or collateral estoppel, or similar principles, by reason of the Florida court cases (cited earlier) in which Coastal and the Trustees have both been parties?

6. Can the Trustees, as a public body, be foreclosed and should they be foreclosed, by reason of equitable estop-pel on the basis of the facts set forth above ?

7. Are the Trustees foreclosed from urging invalidity of the leases by reason of the Florida court rules requiring the filing of compulsory counterclaims ?

8. Are the Trustees foreclosed from urging forfeiture of the leases by reason of the so-called “doctrine of preclusion of inconsistent positions” because of the position they took in any of the cited cases ?

The entire record in this case, together with copies of the briefs of the parties in this Court, the letter directive, memoranda on certification, proposed certification with differences and all other papers are transmitted herewith.

      . Through the Florida Board of Trustees for the Internal Improvement Trust Fund.

      . In denying the right to drill for limestone despite his holding that the leases were valid and covered minerals, not just oil and gas, the trial judge declared:
      Having determined that Coastal has established its legal right to proceed with its mining operations in Lake Okeechobee I herein set forth the reasons why I decline to enforce this right in the manner which Coastal has requested. The following statement from the Trustees’ describes the importance of Lake Okeechobee to the State of Florida:
      “South Florida, with its expanding population already zooming into the millions, in a ‘water-short’ area; that Lake Okeechobee —a huge but shallow basin with a limestone floor — is the only place in the entire area where fresh water can be stored in sufficient quantities to meet the fluxuating needs of that population, the needs of Florida’s unique and priceless Everglades National Park, and the needs of the tremendously valuable central and south Florida agricultural industry; that the fresh water in Lake Okeechobee is presently of high purity and of a quality (if not quantity) to meet the demands made upon it; and finally that the removal of large portions of the limestore floor of the lake will weaken the barrier which separates the pure fresh water in the Lake from impure, saline water lying under pressure beneath the rock, • thereby dangerously jeopardizing the fresh water supply of the entire Central and South Florida area.”
      Evidence was presented as to the possible effect of Coastal’s operations on the quality of the water supply emanating from the Lake and as to the weakening of the barrier which prevents saline intrusion.
      I find this evidence as to the possible effects persuasive. It is by no means absolute but the balancing of interests between Coastal, the Trustees, and the people of the State of Florida lends weight to the prevention of such mining operations by a private company.

      . See note 3 on page 779.

      . Louisiana has recently adopted such a certification procedure. United States v. Buras, 5 Cir., 1972, 475 F.2d 1370, 1371 (Brown, C. J., dissenting), cert. denied, 1973, 414 U.S. 865, 94 S.Ct. 129, 38 L.Ed.2d 117.

      . Allen v. Estate of Carman, 5 Cir., 1971, 446 F.2d 1276, on certification, Fla., 1973, 281 So.2d 317, on receipt of answers to certification, 5 Cir., 1973, 486 F.2d 490; National Education Association, Inc. v. Lee County Board of Public Instruction, 5 Cir., 1971, 448 F.2d 451, on certification, Fla., 1972, 260 So.2d 206, on receipt of answers to certification, 5 Cir., 1972, 467 F.2d 447; Gordon v. The John Deere Company, 5 Cir., 1971, 451 F.2d 234, on certification, Fla., 1972, 264 So.2d 419, on receipt of answers to the certification, 5 Cir., 1972, 466 F.2d 1200; Boyd v. Bowman, 5 Cir., 1971, 443 F.2d 848, on certification, Fla., 1971, 256 So.2d 1. On receipt of answers to certification, 5 Cir., 1972, 455 F.2d 927. Martinez v. Rodriquez, 5 Cir., 1968, 394 F.2d 156, on certification, Fla., 1968, 215 So.2d 305, on receipt of answers to certification, 5 Cir., 1969, 410 F.2d 729; Life Ins. Co. of Va. v. Shifflet, 5 Cir., 1967, 370 F.2d 555, on certification, Fla., 1967, 201 So.2d 715, on receipt of answers to certification, 5 Cir., 1967, 380 F.2d 375; Hopkins v. Lockheed Aircraft Corp., 5 Cir., 1966, 358 F.2d 347, on certification, Fla., 1967, 201 So.2d 743, on receipt of answers to certification, 5 Cir., 1968, 394 F.2d 656; Green v. American Tobacco Co., 5 Cir., 1962, 304 F.2d 70, on rehearing, 304 F.2d 85, on certification, Fla., 1963, 154 So.2d 169, on receipt of answers to certification, 5 Cir., 1963, 325 F.2d 673, cert. denied, 1964, 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306, on appeal after retrial, 391 F.2d 97, rehearing en banc denied, 1969, 409 F.2d 1166; Clay v. Sun Ins. Office, Ltd., 1960, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170, on certification upon remand, Fla., 1961, 133 So.2d 735, on receipt of answers to certification, 5 Cir., 1963, 319 F.2d 505, reversed, 1964, 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229. See W. S. Ranch Co. v. Kaiser Steel Corp., 10 Cir., 1968, 388 F.2d 257, 265 (dissenting opinion), reversed, 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835.

      . Three separate tracts of land are involved. The leases designate them by number as 224-A, 224-B, and 248.

      . Coastal contends that the history of the litigation concerning these lands, particularly the Collins decision, supra, is res judicata as to the validity of the leases. The Trustees counter by asserting that at no time has the issue of invalidity for failure to comply with the requirements of Florida Statutes, § 253.-55, F.S.A., been before the court.

      . This letter directive of August 28, 1972 and supplements are a part of the record being certified insofar as the Supreme Court of Florida deems them relevant to an understanding of our choices in the final certificate.

      . The “Proposed Joint Certification (with differences delineated)” is a part of the certified record. The points of differences are interspersed at appropriate places in parallel columns. The certificate appended includes only the choice made together with footnotes indicating specifically each choice and the addition of some made by us out of an abundance of caution.

      . The Trustees “counter claim” alleged:
      3. Coastal has failed and refused to comply with the terms of the lease relating to the drilling of wells during each drilling period and Coastal has not, pursuant to the express terms of Drilling Lease 248, as modified, drilled upon lands alleged by Coastal to be included in the said Drilling Lease 248, as modified, a minimum of 12,000 feet of wells during each drilling period to depths for each well of not less than 6,000 feet “unless oil, gas or sulphur has been found in paying quantities or igneous rock, or paleozoic formation, or formations not susceptible of being drilled with first-class drilling equipment is encountered at a lesser depth.” (App. 47).
      Coastal responded by a categorical denial (par. III, App. 51) which was expanded in its “affirmative defense” (App. 52) :
      Coastal Petroleum Company has drilled or caused to be drilled all of the footage required under the terms of Lease No. 248, as well as [847] Leases 224-A and 224-B as described and referred to and made a part of Lease No. 248, for footage credit as set forth in Article 20 of Lease No. 248, and all annual delay rentals as provided for in said leases have been duly paid on or before the due dates of the respective leases, including Lease -No. 248, from the first due date down to and including the rentals due on Lease No. 248 on December 19, 1968. Exhibit “B” attached hereto and made a part hereof shows the payment of the rentals and the receipt therefor duly made and entered on November 15, 1968, by the Trustees of the Internal Improvement Fund and the receipt was signed by Robert O. Parker, Director. By reason of the foregoing, the Trustees of the Internal Improvement Fund of the State of Florida are in all things estopped to deny the validity of Lease No. 248, as well as the other leases referred to in 248.

      . See, e. g., Trustees brief pp. 8-13 and the responsive tabular drilling history in Coastal’s brief, pp. 7-9.

      . This includes adapting conditional answers to such precise issues presumably for subsequent determination by the Federal Court as prescribed by it.

      . To retain the Certificate’s self-sufficiency the notes are numbered separately from the accompanying (and incorporated) opinion.

      . Adopting Trustee’s Contention Difference No. 1.

      . Adopting Trustee’s Contention Difference No. 2.

      . Adopting Trustee’s Contention Difference No. 3 apparently inadvertently omitted in final draft.

      . Adopting Trustee’s Contention Difference No. 4.

      . Adopting Trustee’s Contention Difference No. 5.

      . Adopting Trustee’s Contention Difference No. 6, apparently inadvertently omitted in final draft.

      . Adopting Trustee’s Contention Difference No. 7, this omission was undoubtedly intentional and while of doubtful relevance in this certificate it has been included by us for completeness.

      . Adopting Coastal’s Contention Difference No. I. We would add that omission of 1941 statute in Clerk’s directive (note 8, supra (opinion) was inadvertent.

      . Adopting Trustee’s Contention Difference No. III.

      . Adopting Trustee’s Contention Difference No. IV.

      . Adopting Coastal’s Contention Difference No. V.

      . We repeat again what we often have said: “The particular phrasing used in the certified question is not to restrict the Supreme Court’s consideration of the problems involved and the issues as the Supreme Court perceives them to be in its analysis of the record certified in this case. This latitude extends to the Supreme Court’s restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts.” Martinez v. Rodriguez, 394 F.2d 156, 159, n. 6.

      . Indeed the suit was precipitated to challenge the Department of the Army’s refusal to grant a permit for essentially like reasons which stated:
      “The application of the Coastal Petroleum Company dated 29 August 1968 for a Department of the Army permit to mine limestone from an area of Lake Okeechobee has been given careful consideration at all levels of the Department of the Army.
      Confirming advance information furnished your company by telegram on 12 August 1969, I have to inform you that your application must be, and hereby is, denied.
      This denial is based on the following considerations :
      a. You have been unable to show that you have a legal right to do the work proposed under the permit in view of the action of the Trustees of the Internal Improvement Fund of the State of Florida on 27 May 1969 declaring Drilling Lease No. 248, as modified, to be in default in its entirety and the lease and all the lessee’s rights thereunder to be terminated;
      b. Issuance of a permit is unanimously and vigorously opposed by all responsible local, State and Federal agencies, local and State officials and Florida Congressmen, and recognized conservation groups; and
      c. Issuance of the permit would result in substantial harmful effect upon fish and wildlife resources, ecology, conservation, and the water quality of Lake Okeechobee.”


author: PER CURIAM.

text:
    Edward JOHN, Plaintiff-Appellant, v. Albert HURT, Defendant-Appellee.
    No. 73-1547.
    United States Court of Appeals, Seventh Circuit.
    Nov. 16, 1973.
    Edward John, in pro. per.
    Albert E. Hurt, Decatur, 111., for defendant-appellee.
    Before FAIRCHILD, CUMMINGS, and PELL, Circuit Judges.
   PER CURIAM.

Plaintiff appealed from a judgment dismissing his complaint. Although the appeal was once dismissed, we confirm our order of October 12, 1973, reinstating the appeal, and consider it on its merits, but without oral argument. Rule 2, F.R.A.P. Plaintiff’s application for appointment of counsel is denied.

Plaintiff is an inmate of a state prison and is not represented. He sent his “complaint,” “affidavit in forma pauperis,” and other sheets of paper, variously entitled, to the district court. His pleading is to be held “to less stringent standards than formal pleadings drafted by lawyers” and the test is whether “it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41, 45-46 [78 S.Ct. 99, 2 L.Ed.2d 80] (1957).” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), reh. denied 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819.

The district court permitted filing in forma pauperis, but dismissed on the court’s own motion without service of process on defendant. The district court concluded that there were no facts pleaded by which defendant could be said to have acted under color of state law.

Reading plaintiff’s papers together, plaintiff alleged that defendant incompetently represented him as a “court appointed attorney” in a burglary trial before a state court; that plaintiff was found guilty and sentenced to imprisonment; that “defendant is clothed with the authority of state law”; that he deprived plaintiff of sixth amendment rights by giving plaintiff incompetent counsel; and that specifically defendant failed to move to suppress damaging evidence which was introduced at trial, failed to call all witnesses in plaintiff’s behalf, and made statements in argument to the jury which involved plaintiff in the charge.

It is now clear, as a result of plaintiff’s later submissions, and a letter from defendant to this court concerning the appeal, that defendant was the Public Defender of Macon County, Illinois. In fairness to the district court it must be noted that plaintiff’s original papers never expressly referred to defendant as public defender, although the caption of the complaint indicated his address as “Macon County Courthouse Decatur Illinois.”

It is at least arguable that a public defender acts under color of state law in his relationship with and representation of an indigent accused person. Although we recognize that after appointment in a given case, the professional relationship of the public defender with his client is similar to that of a private attorney with his ■ client, the public defender ordinarily enjoys continuing employment by a unit of government, is often furnished an office as well as compensation, and appears to his client, as well as others, as a person cloaked with the authority of the state. See, in the context of a criminal charge against a public defender acting under color of law, United States v. Senak, 477 F.2d 304 (7th Cir. 1973).

Assuming that defendant, as public defender, was acting under color of state law, plaintiff would still have to establish that defendant subjected him to the deprivation of a sixth amendment right. Looking at the complaint with required liberality, we can not say with assurance that plaintiff can adduce no facts to prove that defendant’s alleged failures turned the state trial into a “sham or mockery” or at least “blotted out the essence of a substantial defense.” United States ex rel. Little v. Twomey, 477 F.2d 767, 773 (7th Cir., 1973); Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970).

Assuming, however, that defendant could be deemed to be acting under color of state law, and allowing for the possibility that plaintiff’s proof might demonstrate such incompetency as to amount to deprivation of sixth amendment rights, we think that, as a matter of law, defendant is immune from liability for damages, and plaintiff’s complaint must fail.

The legislative history of 42 U. S.C. § 1983 does not indicate that Congress intended to “abolish wholesale all common law immunities.” Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1966). In part because of the same factors which lead us to think that state subsidized and appointed public defenders can act under color of state law, we conclude that public defenders, like state prosecutors, and state and city attorneys, enjoy a qualified immunity for acts performed in the discharge of their official duties. Brown v. Joseph, 463 F.2d 1046, 1048 (3rd Cir., 1972), cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003. See Arensman v. Brown, 430 F.2d 190, 193 (7th Cir., 1970). We note that the extension of immunity to public defenders will encourage their free exercise of discretion in the performance of professional obligations, as well as aid in the recruitment of able men and women for public defender positions. See Brown v. Joseph, supra, 463 F.2d at 1048-1049.

As contrasted with the indictment in United States v. Senak, supra, there are no factual allegations in the complaint at bar, even when construed broadly, which indicate that the acts complained of fall beyond the scope of defendant’s immunity. In deciding whether to object to evidence, whether to call a particular witness, and how to address the jury, the public defender was performing acts within the scope of his employment. Although it may be established under the pleadings that defendant made gross errors of judgment, we note that there is no allegation that his conduct was intentionally harmful to plaintiff, or otherwise deliberately inconsistent with his obligations to plaintiff so as to be a voluntary excursion outside the scope of his duties. See Hilliard v. Williams, 465 F.2d 1212, 1218 (6th Cir., 1972), cert. denied 409 U.S. 1029, 93 S.Ct. 461, 34 L.Ed.2d 322.

Judgment affirmed.

       Unlike the plaintiff in Dear v. Rathje, 485 F.2d 558 (7th Cir. 1973), John did not move for the issuance of summons to defendant, and his indigent complaint was dismissed before Dear was handed down. Accordingly, we need not vacate the district court’s dismissal order.


author: BARNES, Circuit Judge:

text:
    THIEM INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-2881.
    United States Court of Appeals, Ninth Circuit.
    Dec. 18, 1973.
    Samuel P. King, District Judge, dissented.

      William F. Spalding (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., for petitioner.
    Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Michael Wolly (argued), Washington, D. C., Abraham Siegel, Director, Region 31, NLRB, Los Angeles, Cal., for respondent.
    Before CHAMBERS and BARNES, Circuit Judges, and KING, District Judge

       The Honorable Samuel P. King, United States District Judge, Honolulu, Hawaii, sitting by designation.

   BARNES, Circuit Judge:

In this proceeding the Labor Board seeks enforcement, and the petitioner company seeks to review, a Board order issued October 27, 1972, finding that the company refused to bargain with International Association of Machinists and Aerospace Workers, AFL-CIO (199 NLRB No. 138), certified as the employees’ representative. The Board, without benefit of a hearing, overruled petitioner’s Objections to Conduct Affecting Results of Election, which alleged that the union had interfered with the free choice of the employees by material misrepresentation of fact on the eve of the election.

The election was held August 26, 1971. The challenged conduct was the publishing and distribution by the union of two bulletins, one on August 23, 1971, and one on August 25, 1971. These are quoted verbatim as notes to this opinion, la and lb, respectively.

Two questions are presented to us. One: Did these publications contain false and misleading representations; and Two: If so, were the representations of á nature which had a material and substantial impact on the judgment of the employees?

The basis for the company’s objection to Bulletin of August 23,1971 (Note la), was contained in the portion in parenthesis in paragraph 2 of the bulletin: “(National statistics prove that nonunion shops are on the average of $1.16 per hour behind union shops).”

The basis for the company’s objection to Bulletin of August 25, 1971 (Note lb), was the portion reading:

“. . .If you have followed the recent settlements of labor agreements in the newspapers, they went to wit for Union members:

“The above represents only a fraction of the members represented by the International Association of Machinists and Aerospace Workers.”

In its Decision and Certification, the Board found that the evidence concerning the August 23, 1971 representation did not demonstrate that such statement was false, but only that the union had made “an unsubstantiated claim.” This was because the union stated it relied on the BN A Union Labor Report Weekly Newsletter of May 20, 1971. The employer supplied a copy of this newsletter to the Regional Director, claiming that it contained no basis for the union’s representation that “. . . national statistics prove that non-union shops are on the average of $1.16 per hour behind union shops.”

We have some difficulty in following the Board’s conclusion that there was no falsity to the statement contained in the August 23, 1971 bulletin, when the newsletter, relied on by the union, contained nothing to support the representation made by the union, and claimed by the union to be, information and “substantiated proof by reason of national statistics.”

However, we have no difficulty in considering the second or August 25, 1971 Bulletin, distributed by the union at the end of the day prior to election day. It unequivocally asserts that all of the cited increases in wages went to members of the union which was the subject of the vote, and that that union was responsible for achieving such wage increases.

The Board concedes that the August 25, 1971 Bulletin was “capable of a construction” that the one union involved (IAMAW), was responsible for the large wage increases, and considered it “a considerable exaggeration of the facts,” (R. 55, lines 9-11). Actually the union’s claim was false in five of the six cited industry settlements.

We concede it is sometimes difficult to determine the proper line to be drawn between an admitted exaggeration, i. e., admittedly going a little beyond the true facts, and a falsehood. But we submit it should not be difficult to determine whether such an admitted misrepresentation of fact was serious enough to “unduly” influence employees, or have “sufficient” voter impact.

We here adopt by reference the careful analysis recently stated in the case of NLRB v. Millard Metal Service Center, Inc., 472 F.2d 647 (1st Cir. 1973).

In the Millard Metal case, the issue was whether a 42 cent per hour increase in wages was “an insubstantial misrepresentation.” It was held to be a substantial misrepresentation with sufficient impact to unduly influence employees.

In the present case we find the following factors:

1. The misrepresentation was made at the last possible moment prior to the election, and no effective reply by employer was possible.

2. Wage rate issues are of particular sensitivity to employees.

3. The misrepresentation went to the union’s special knowledge in a subject the employees might reasonably expect the union to have.

4. “A flat misrepresentation” cannot be excused “on the ground that the deceived party, bearing no duty to do so, could have investigated and learned the truth.”

5. “It is always a dangerous game for a union to pass off another union’s work as its own. . . . ”

6. “Assertions about union benefits must be held to a fairly close standard of accuracy since a union’s statements about its own contracts sound authoritative. Employees are liable to accept them uncritically.”

Finally, the Board urges that the misrepresentation as to six other industries, “so unlike” that in which the employees here were engaged, would not be likely to cause the employees to believe that the union could automatically provide the same kind of wage settlement on their behalf. (Respondent’s Brief, p. 13.) The short answer to that is if this be true, why would the union use such misrepresentation of facts, at the last moment, to dazzle employees with suggesting a 33%% wage increase? Can it be asserted the non-union employees knew more about the facts than the union itself?

We conclude the Board’s findings are not supported by substantial evidence on the record considered as a whole.

We decline to enforce the Board’s order, and we vacate the order of the Board.

SAMUEL P. KING, District Judge, dissents, and would enforce the Board’s Order.

      . (Letterhead of International Association of Machinists
      and Aerospace Workers — District Lodge No. 94 214 South Loma Drive Los Angeles, Calif. 90026 Phone (213) 483-6630) August 23, 1971
      All Employees Theim Industries, Inc.
      Thursday, August 25th, is your day — not the Union’s day — not the Company’s day — but your day.

      It’s your election — it's your future — it's your Union and it will be your contract after your “YES VOTE” on Thursday.
      We know that all of you are just as concerned with the Executive Wage & Price Freeze as we are, consequently, we will advise you as to all the information we have on the order at this time.
      1. We believe the order to be unconstitutional in that it discriminates against the wage earner and does not freeze profits and/or interest rates.
      2. We believe that we can prove a wage inequity in a newly organized shop before the Emergency Preparedness Board (national statistics prove that nonunion shops are on the average of $1.16 per hour behind Union shops).
      3. If the freeze goes beyond the ninety (90) days we are sure a board will be set-up to pass on all wage and fringe benefits and a Union would be most helpful to you.
      4. If the freeze ends within the ninety (90) days, it will take approximately that length of time to be certified, and to bargain for the kind of Collective Bargaining Agreement you expect to attain.
      A “YES VOTE" will be very important to you and your family on Thursday,
      so let’s make it a BIG WIN — and REMEMBER
      YOU MAY LIVE WITHOUT A UNION — BUT NOT 80 WELL.
      Organizing Committee
      District Lodge #94, I.A.M. & A.W.
      214 South Loma Drive
      Los Angeles, California 90026
      Dale Anderson
      Bob Fleming
      DA:jIs Bill Lopez
      opeiu#30 Bill Meyers
      afl-cio

      . (District Lodge No. 94 — International Association of Machinists and Aerospace Workers — ÁFL-CIO NEWS BULLETIN)

        TO: All Bargaining Unit Employees at — THIEM INDUSTRIES, INC.

      While it is usually not our practice to get into a letter-writing contest with the management, we think that the three “Love Letters” from H. J. Thiem need to be exposed for what they are!

        Ash yourself why Mr. Thiem wants you to vote NO UNION? We will tell you why! Money — and that’s the name of the game. If you have followed the recent settlements of labor agreements in the newspapers, they went to wit for Union members:
      Workers in the Rail Industry .........................41% Wage Increase
      Workers in the Steel Industry ......................33%% Wage Increase
      Workers in the Auto Industry........................33%% Wage Increase
      Workers in the Trucking Industry (Mechanics) ..........37% Wage Increase
      Workers in the Can Industry ........................35% Wage Increase
      Workers in the Airline Industry .......................35% Wage Increase
      The above represents only a fraction of the members represented by the International Association of Machinists and Aerospace Workers — but it is the biggest reason the management wants you to vote No.
      Vote for your own best interest — ■

        VOTE YES

      and put industrial democracy to work—
      You have only one way to move and that is UP.

        YOU CAN LIVE WITHOUT A UNION — BUT NOT SO WELL.

      ORGANIZING COMMITTEE DISTRICT LODGE #94, I.A.M.A.W.
      Dale Anderson
      Bob Fleming
      DA :1s Bill Lopez
      opeiu#30 Bill Meyers
      afl-cio 8/25/71

      . “BNA” refers to Bureau of National Affairs, Washington, D.C.

      . “Representative elections, challenged because of asserted pre-election misrepresentations, will not be lightly set aside. A certain degree of inaccuracy and ambiguity is recognized as indigenous to campaign propaganda. In order .to warrant the setting aside of a representative election on this ground ‘the burden is on the objector ... to show it was ‘sufficiently likely’ that the employees were misled so ‘that it cannot be told whether they were or were not.’ Baumritter Corp. v. N.L.R.B., 386 F.2d 117, 120 (1st Cir. 1967); N.L.R.B. v. Trancoa Chemical Corp., 303 F.2d 456, 461 (1st Cir. 1962). Since, in the first instance, this determination rests within the broad discretion of the Board, the Board’s determination is to be set aside only for an abuse of discretion. (Citations omitted.)
      “The Board will set aside an election ‘only where there has been a misrepresentation . . . which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election.’ Hollywood Ceramics Co., Inc., 140 NLRB 221, 224 (1962). All of these elements must be present before an election will be set aside. See, N.L.R.B. v. Cactus Drilling Corp., 455 F.2d 871 (5th Cir. 1972). . . . Misrepresentations have an insignificant impact when
      (1) the employees possess independent knowledge with which they can evaluate the statements, Hollywood Ceramics, supra; see also, N.L.R.B. v. Maine Sugar Industries, Inc., 425 F.2d 942, 945 (1st Cir. 1970), or
      (2) the employees have no reason to believe that the speaker had any special knowledge on which they should rely. N.L.R.B. v. A. G. Pollard Co., 393 F.2d 239, 242 (1st Cir. 1968); N.L.R.B. v. Southern Foods, Inc., 434 F.2d 717, 720 (5th Cir. 1970).”
      N.L.R.B. v. O. S. Walker Company, Inc., 469 F.2d 813 (1st Cir. 1972).
      “We do not depart from these criteria. We find, however, in applying them to .the facts of the instant case, that the Board’s order must be vacated and the certification set aside.”
      NLRB v. Millard Metal Service Center, Inc., supra, 472 F.2d at 650.

      . Cross Baking Co. v. NLRB, 453 F.2d 1346, 1349 (1st Cir. 1971).

      . NLRB v. Maine Sugar Industry, Inc., 425 F.2d 942, 944-945 (1st Cir. 1970).

      . NLRB v. Winchell Processing Corp., 451 F.2d 306, 308-309 ( 9th Cir. 1971).

      . Hollywood Ceramics Co., 140 NLRB 221, 225 (1962).

      . Collins & Aikman Corp. v. NLRB, 383 F.2d 722-728 (4th Cir. 1967); NLRB v. Producers Cooperative Association, 457 F.2d 1121, 1126-1127 (10th Cir. 1972); NLRB v. Southern Foods, 434 F.2d 717 (5th Cir. 1970).

      . NLRB v. G. K. Turner and Associates, 457 F.2d 484, 487 (9th Cir. 1972); NLRB v. Winchell Processing Corp., 451 F.2d 306 (9th Cir. 1971).

      . Gallenkamp Stores v. NLRB, 402 F.2d 525, 535 (9th Cir. 1968).