author: FORMAN, Circuit Judge.

text:
    The NEWSPAPER GUILD, ERIE NEWSPAPER GUILD, LOCAL 187 AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Times Publishing Company, Intervenor. TIMES PUBLISHING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Newspaper Guild, Erie Newspaper Guild, Local 187, Intervenor.
    Nos. 72-1521, 72-1633.
    United States Court of Appeals, Third Circuit.
    Argued March 8, 1973.
    Decided Nov. 30, 1973.

      John M. McLaughlin, William C. Sennett, Knox, Graham, Pearson, McLaughlin & Sennett, Erie, Pa., for petitioner in No. 72-1521.
    Richard H. Zamboldi, Elderkin, Martin & Kelly, Erie, Pa., for petitioner in No. 73-1633.
    Elliot Moore, Deputy Associate Gen. Counsel, Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Joseph E. Mayer, William H. DuRoss, III, Attys., N. L. R. B., Washington, D. C., for respondent.
    Before FORMAN, VAN DUSEN and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

FORMAN, Circuit Judge.

This case represents a consolidation of two petitions to review a determination by the National Labor Relations Board (the “Board”) and a cross-application by the Board for enforcement of the challenged order. At our No. 72-1521, the Newspaper Guild (the “Union”) seeks a reversal of the Board’s determination that the Union committed an unfair labor practice under § 8(b)(1)(B) of the National Labor Relations Act* (the “Act”) by disciplining four supervisors who crossed a picket line and performed allegedly struck work. At our No. 72-1633, the Times Publishing Company (the “Employer”) requests this Court to compel the Board to reverse its denial of the company’s motion to reinstate a § 8(b) (1) (A) complaint and thus open up an inquiry into the reasonableness of the fines levied against the supervisors. By way of cross-petition, the Board seeks enforcement of its order.

The Employer publishes three newspapers in Erie, Pennsylvania. The Union is the collective bargaining agent for the employees of all three. On August 31, 1968, the collective bargaining agreement between the Employer and the Union expired. On March 6, 1969, after unsuccessful negotiations, the Union went on strike. A new contract was executed on July 16, 1969. This contract was retroactive to September 1, 1968, and included in its union security provisions all employees except those in top management.

At least ten employees worked during the strike. None of these employees was exempt from the union security provisions. Several had roles of an apparently supervisory nature. Other members filed charges against all ten with the Union in October 1969. After Union trial board proceedings, fines were levied in February 1970. These fines represented the Union’s approximation of the employees’ earnings during the period of the strike.

On July 28, 1970, the Employer filed unfair labor practice charges with the National Labor Relations Board. The charges alleged a § 8(b)(1)(A) violation of the Act: “the [Union] . has, by trial proceedings, threats of excessive fines and the imposition of excessive fines and by other acts and conduct, restrained and coerced employees of Times Publishing Co. in the exercise of the rights guaranteed in Section 7 of the Act.” The Employer also alleged a § 8(b)(1)(B) violation of the Act, claiming that the Union had restrained and coerced the Employer “in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances.” The § 8 (b)(1)(A) charge was deleted on April 21, 1971 at the suggestion of the Regional Director of the Board. On April 30, 1971, a complaint signed by the Director of Region Six on behalf of the General Counsel was issued against the Union based on § 8(b) (1) (B).

The Trial Examiner conducted hearings in June and July 1971. On October 28, 1971, the Examiner decided that fines against four Union members were § 8(b)(1)(B) violations. A fine against a fifth member was upheld because he was not a supervisor.

The Employer subsequently filed a motion for leave to file a second amended charge and to stay proceedings to permit the General Counsel to amend the Complaint. The amendment would have been a reinstatement of the § 8(b)(1) (A) charge. The Board denied this motion in its May 18, 1972 decision upholding the findings of the Trial Examiner. The Employer’s motion for reconsideration of its ruling was denied by the Board on June 22, 1972. This petition to review followed.

The Union opposes the decision of the Trial Examiner and the Board that there was an unfair labor practice under § 8(b)(1)(B). The Union also opposes on both procedural and substantive grounds the introduction of the § 8(b)(1)(A) complaint.

The Board requests that the petitions to review the Board’s order should be denied, and a judgment should be issued enforcing the Board’s order.

There are two principal questions in this case.

The first (No. 72-1521) is: Has the Union committed an unfair labor practice under § 8(b)(1)(B) of the Act by disciplining supervisor-members for crossing a picket line during an economic strike? The Board’s affirmative answer is based upon the rationale that under the Act a § 2(11) supeiwisor is also a § 8(b)(1)(B) representative for the purposes of collective bargaining or the adjustment of grievances whether or not formally designated as such.

The second question (No. 72-1633) is: Did the Board err in refusing to determine the reasonableness of fines assessed by the Union against its members? The Board has answered negatively.

I

No. 73\~1521.

The elements of a § 8(b)(1)(B) violation are: (1) that the disciplined employee have § 2(11) supervisory status and (2) § 8(b)(1)(B) status as a representative for the purposes of collective bargaining or the adjustment of grievances; and (3) a showing of restraint or coercion in the selection of such a representative. In the instant case, most of the Examiner’s opinion is directed toward establishing the first element, supervisory status. The Examiner decided and the Board affirmed that four of the disciplined employees were supervisors and one was not. The Union disputes the findings with respect to the four.

The first employee, City Editor Janice Hauserman, has seven employees under her direction, and .assigns them to specific “beats.” A second employee, Society Page Editor Betty Peebles, has one assistant whose work she oversees. A third employee, Telegraph Editor Richard Kubeja, has hierarchical if not experiential superiority over at least one employee with whom he works and who follows Kubeja’s instructions. Kubeja also exercises independent judgment by substituting for the Managing Editor. A fourth employee, Assistant Circulation Manager Gerald Szoszorek, had the day-to-day supervision of some 30 to 35 employees until November 1968. Subsequently, his job function was somewhat changed to the supervision of 15 district managers. From evidence such as the foregoing, the Examiner concluded that the four employees were § 2(11) supervisors. This Court is of the opinion that there is sufficient evidence in the record to justify the Examiner’s conclusion that the four were § 2(11) supervisors.

A more difficult question is .posed by the Examiner’s approach to the second element of a § 8(b)(1)(B) violation: status as a representative for the purposes of collective bargaining or the adjustment of grievances. The Examiner stated: “All persons who are ‘supervisors’ within the meaning of Section 2(11) of the Act are employers’ ‘representatives for the purposes of collective bargaining or the adjustment of grievances’ within the purview of Section 8(b) (1) (B) of the Act.” The Examiner then cited three cases as authority for what has come to be labeled the “reservoir doctrine.”

In Toledo Blade, the Board embraced a version of the reservoir doctrine which holds that where the record discloses by way of substantial evidence that certain supervisors are natural and likely choices for collective bargaining or grievance adjustment responsibilities in the future they therefore presently qualify under § 8(b)(1)(B). However, the Board in the instant case presents a more sweeping version of the doctrine, that § 2(11) supervisors automatically become § 8(b)(1)(B) representatives because they are a reservoir of manpower available and likely to be chosen for such duties at some future date. The Board contends that once these supervisors were disciplined by the union, they could no longer be fully loyal to the employer who would be coerced in his future selection of representatives. The word “selection” in § 8(b)(1)(B) has, according to the Board, both a prospective and a retrospective meaning. No inferences from evidence are necessary, the Board appears to be saying, to justify this second approach.

As heretofore indicated, elements of the reservoir doctrine first appeared in Toledo Blade, where the Board found a § 8(b)(1)(B) violation after determining that the evidence justified the separate conclusions that the employees in question were both supervisors and representatives. The Board then stated that even if the employees were not actually grievance representatives, “their status and roles” made them “such natural and potential representatives of the Blade for the handling and settlement of grievances because of their day-to-day supervision and contacts with the employees in matters that spawn grievances, that the Blade should be entitled to rely upon them, and therefore to select them, as its representatives in handling and settling grievances whenever the occasion might arise.” The Court of Appeals for the Sixth Circuit affirmed. It did not specifically approve the "reservoir doctrine” but stated: “This conduct of the union would further operate to make the employees reluctant in the future to take a position adverse to the union, and their usefulness to their employer would thereby be impaired.” The Toledo Blade approach appears more limited than that espoused by the Board in the instant case in adopting the Examiner’s findings because the Board here does not rely upon an evidentiary background.

The “reservoir doctrine” next appeared in Cork Insulating where no § 8(b)(1)(B) violation was found when the union fined an employee member for failure to report working with an employee nonmember. The employee was specifically found not to be a statutory supervisor. The Board reaffirmed its position:

“the employer’s right to select collective-bargaining and grievance representatives . . . extends . to an employer’s right, at any time, to select his representatives from an un-eoerced group of supervisors whose loyalty to him has not been prejudiced and whose substantial supervisory authority and day-to-day contact with and supervision of the employees under them make them natural choices for selection as such representatives.”

The Board indicated, however, that where an employee had never adjusted a grievance it would be necessary to establish by “substantial credible evidence” that “he was nevertheless vested with theoretical power to be the Employer’s representative . . . .” (Emphasis added.)

In Detroit Free Press, the Board found a § 8(b)(1)(B) violation when the union fined a supervisor, Ward, for performing one and one-half minutes of what was ordinarily rank-and-file work. There had been a stoppage of the printing press and Ward had rotated a reel of the press in order to get a sample of the paper involved in the press’s stoppage. The supervisor was specifically found to be a grievance adjuster on the basis of credible evidence. Among other things, the Board found that Ward

“. . . exercises on-the-spot disciplinary control over the men, including the issuance of disciplinary warnings for minor infractions of the company rules and the suspension of an employee from his work shift for a major infraction of company rules. The authority to exercise these supervisory functions including the discipline of employees resides in Ward whether or not Superintendent Cinder is present at the plant.

* * -X- * * *

“In addition to the foregoing, the assistant foremen, including Ward, are authorized to handle the problems which may arise in the assistant foreman’s area during the shift; this includes complaints or grievances of the employees as well as problems which concern the equipment.”

The Board in Detroit Free Press did not find that any supervisor is also a § 8(b)(1)(B) representative, but that some supervisors not so designated form a class from which management might naturally seek its representation and may thereby, when credible evidence is presented, be considered § 8(b)(1)(B) representatives.

The Board did not in the instant case find a § 8(b)(1)(B) status from a formal contractual provision. Indeed, the parties have agreed that the four disciplined supervisor members were not formally-designated representatives. The Board did not, as in Toledo Blade, find that the supervisors had informal grievance-handling powers. The Board, however, argued on this appeal that Hauserman, Kubeja, and Szoszorek had minor grievance-handling powers. In fact the existence and usage of these powers is borne out by evidence in the record. The Board does not specify grievance-handling functions for Peebles, nor does the record disclose any. For Hauserman, Kubeja, and Szoszorek, § 8(b)(1)(B) status may be granted whether their informal grievance-handling powers are viewed as sufficient by themselves as in Toledo Blade, or as forming the class of natural and likely representatives which the credible evidence delineates as in Detroit Free Press.

In none of the three cases cited as bearing on the “reservoir doctrine” by the Board does a § 2(11) supervisor automatically become a § 8(b)(1)(B) representative. Each ease requires an evidentiary basis from which § 8(b)(1) (B) status may be inferred. Hence Betty Peebles cannot be considered a § 8(b)(1)(B) representative on the basis of the applicable law.

The third element in determining whether there is a § 8(b)(1)(B) violation is “restraint or coercion.” Guidance is provided by three recent, although conflicting, decisions:

National Labor Relations Board v. San Francisco Typographical Union No. 21, 486 F.2d 1347 (9th Cir. 1973) (“San Francisco”);
International Brotherhood of Electrical Workers, AFL-CIO, and Local 134, International Brotherhood of Electrical Workers, AFL-CIO v. National Labor Relations Board, 487 F. 2d 1143 (D.C.Cir. 1973) (“International Brotherhood”);
National Labor Relations Board and Wisconsin Electric Power Company v. Local 2150, International Brotherhood of Electrical Workers, AFL-CIO, 486 F.2d 602 (7th Cir. 1973) (“Wisconsin Electric”).

In San Francisco, the Court of Appeals for the Ninth Circuit held that the union violated § 8(b)(1)(B) when it disciplined a foreman who discharged an employee prior to a strike and reversed the Board’s finding that disciplining three strikebreakers who were also supervisors was an unfair labor practice. Concerning the foreman, the court said, “By fining Dixon [the foreman], the Union interfered with Dixon’s position as a supervisor and committed an unfair labor practice under Section 8(b)(1) (B).” Concerning the three strikebreakers, the court said, “[T]he Union did not punish them for exercising any management duty. * * * The Journal’s right to select management representatives under Section 8(b)(1)(B) is not affected by the Union’s action.”

San Francisco is in agreement with International Brotherhood, in which the Court of Appeals for the District of Columbia Circuit consolidated and reheard two cases en banc. These involved Florida Power & Light Co. (No. 71-1712) and Illinois Bell Telephone Co. (No. 71-1559). In International Brotherhood, Judge J. Skelly Wright, author of the majority opinion, posed the question:

“Does a union commit an unfair labor practice under Section 8(b)(1) (B) . . . by disciplining supervisor-members for crossing a picket line and performing rank-and-file struck work during a lawful economic strike against the company?”

The answer was in the negative. In sum, the Court held that the literal language of § 8(b)(1)(B), the legislative history, and the case law did not support the Board’s affirmative answer.

There are significant distinctions between the instant case and the two cases resolved by the Court of Appeals for the District of Columbia Circuit in International Brotherhood. In one, Florida Power, the disciplined supervisor-union members were not themselves represented by the union for collective bargaining purposes. They were, however, entitled to certain pension, disability, and death benefits. The contract between employer and union did not provide discipline for acts performed as supervisors, and there were, in fact, no fines for the performance of supervisory functions. The fines were for rank-and-file struck work. Not only were fines levied, but some members were expelled. In the other ease, Illinois Bell Telephone, the supervisors were both within and without the bargaining unit. The contract did not provide for a waiver by the union of its right to discipline supervisor-members. When the strike occurred, the local warned its members not to perform rank-and-file work. Some did, and were fined.

In both International Brotherhood cases, the disciplined supervisors were § 8(b)(1)(B) representatives for the purposes of adjusting grievances and collective bargaining. The dispute was whether a fine for performing rank-and-file work would indirectly coerce the Employer because the loyalty of the representatives could be alienated.

In the case at hand, the disciplined supervisors were not statutory representatives. The supervisors also have a much closer relationship to the Union than in the International Brotherhood cases, particularly Florida Power and Light. Thus, the International Brotherhood cases represent a more extreme situation than the instant case. Neither does the record here disclose whether the supervisors did supervisory work or rank-and-file work during the strike.

International Brotherhood places the problem in the broader perspective of §§ 14(a) and 2(3) of the Act. Section 14(a) provides employers with the option of not treating supervisors as employee-union members. Section 2(3) defines employees and specifically excludes supervisors. Section 2(11) defines supervisors. In comparing the § 2(11) definition of supervisor with the § 8(b)(1)(B) definition of representative, the court observed that the former is intended to deal with the “problem of supervisor-union member conflict of loyalties, . . . ” that the scope of the latter is “much narrower,” and that the Board’s approach creates an “awkward dichotomy” between those who fit under both definitions and those who do not.

Wisconsin Electric, whose facts resemble those of Florida Power and Light, holds an opposite view: that there is an unfair labor practice when a union disciplines supervisors who are § 8(b)(1)(B) representatives for performing rank-and-file struck work. In Wisconsin, unlike the instant case, the union did not appeal the Board’s finding that the supervisors qualified under § 8(b)(1)(B). The union in Wisconsin argued on appeal that disciplinary action for the performance of struck work was justified. But the court, relying heavily on the initial decision in International Brotherhood, determined that when supervisors perform struck work it is an exercise of managerial responsibility and “an essential part of the economic warfare involved in a strike” for management to withstand the union’s coercion. (486 F.2d at 608.) Moreover, the court noted that the employer as a public utility had “an especial obligation to continue to provide an indispensable public service during a time of strike.” (Id.) In a footnote, the court disagreed with the majority opinion in the en banc decision in International Brotherhood,

Inherent in International Brotherhood, San Francisco, and Wisconsin Electric was the requirement that a determination be made whether the work the disciplined supervisory employees were performing was rank-and-file struck work or supervisory work prior to establishing the third element of a § 8(b)(1)(B) violation: “to restrain or coerce ... an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances; . . . .” (Emphasis added.) Here no such finding was made by the Board. Nor does the record provide sufficient evidence for such a finding. Without it, the Board lacked an element essential to a determination of an unfair labor practice. Hence, this case must be remanded to the Board to ascertain the type of work performed during the strike by the disciplined supervisory employees, Kubeja, Hauserman, and Szoszorek.

II

No. 72\-1633

The actions leading to the Board’s denial of the complaint based on the Employer’s charge, as amended, of a § 8(b)(1)(B) violation are recited in detail on pages 418-419 of this opinion. The Employer’s petition here is to review the Board’s denial of the Employer’s post-hearing motion for leave to file a second amended charge, and to stay the proceedings before the Board to permit General Counsel to amend the complaint to include a reinstatement of the § 8(b)(1)(A) charge as originally presented by the Employer but deleted at the instance of the Regional Director. The purpose of the § 8(b)(1)(A) charge was to place in issue for the determination by the Board the reasonableness of the fines assessed by the Union against its members. The alleged violation of § 8(b)(1)(B), on the other hand, placed before the Board only the question of whether the disciplined workers had such supervisory status as to immunize them from Union penalties for engaging in struck work.

The reason motivating the Regional Director to advise the Employer that he did not intend to issue a complaint alleging a § 8(b)(1)(A) violation of the Act was that the Board had recently ruled in the cases of International Association of Machinists and Aerospace Workers, Local Lodge No. 504 (Arrow Development Co.) and David O’Reilly, 185 N.L.R.B. 365 (1970) and Booster Lodge No. 405 International Association of Machinists and Aerospace Workers, AFL-CIO, and The Boeing Company, 185 N.L.R.B. 380 (1970) that the Board was not empowered or required to rule upon the reasonableness of the Union fines. Thus prompted, the Employer filed an amended charge alleging only violations of § 8(b)(1)(B) of the Act without specifically withdrawing its original charge of a § 8(b)(1)(A) violation.

After the Trial Examiner’s decision had issued, resulting in a finding that § 8(b)(1)(B) had been violated, the United States Court of Appeals for the District of Columbia Circuit reversed the decision of the Board in Booster Lodge, supra, and remanded the case to the Board for a determination of the reasonableness of fines levied by the Union in that case.

Before the Board had acted upon the decision of the Examiner in the instant case, the Employer made its motion for leave to file a second amended charge consisting of a restatement of the original charge, citing authorities which it contended supported the granting of like motions. It emphasized that it had not withdrawn the allegation of the § 8(b) (1)(A) violation and argued that thus there was no bar to the granting of its motion.

The Board, as has been noted, approved the decision of the Examiner with only certain modifications, irrelevant here. As to Employer’s motion for leave to file a second amended charge, the Board commented:

“2. Because insufficient basis therefor has been shown, the Charging Party’s motion for leave to file a second amended charge and to stay proceedings to permit General Counsel to amend the complaint is denied.”

The Board determined that the institution of an unfair labor practice complaint is solely within the unreviewable discretion of General Counsel. It also took the position that it had no power to inquire into the reasonableness of fines imposed by the Union upon its members. The Employer then moved that the Board reconsider its denial of the motion, which was also denied.

Upon motion of the Board, this court ordered Employer’s petition for review, No. 72-1633, to be consolidated with the Union’s petition for review, No. 72-1521, for purposes of briefing and oral argument.

In its argument here for the granting of its petition for review, the Employer stressed the Board’s responsibility to review and set aside the fines in the present case because “they were excessive, unreasonable and based upon the arbitrary fiat of the union leaders.” It found comfort for its contention in National Labor Relations Board v. Allis-Chalmers Manufacturing Company, 388 U.S. 175, 204, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); Scofield v. National Labor Relations Board, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969) and other cases, but relied heavily upon the reversal of the Board in Booster Lodge No. 405, International Association of Machinists and Aerospace Workers v. National Labor Relations Board, 148 U.S. App.D.C. 119, 459 F.2d 1143 (1972).

The federal courts indeed do not have jurisdiction to review the decision of the General Counsel in refusing to issue a complaint. Hence this court is without power to interfere with the decision of the General Counsel in his refusal to amend the complaint so as to include therein a charge that the Union violated § 8(b)(1)(A) and a charge that fines were allegedly excessive in violation of § 8(b)(1)(B).

Unhappily for the Employer, whose brief was filed November 3, 1972, the United States Supreme Court on December 18, 1972 granted certiorari in Booster Lodge as a companion case to National Labor Relations Board v. Boeing Co., 409 U.S. 1074, 93 S.Ct. 675, 34 L.Ed.2d 662, and filed its opinion on May 21, 1973, in National Labor Relations Board v. Boeing Co., 412 U.S. 67, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973). In this opinion the Court considered arguments similar to those made by the Employer here, but it reversed the decision of the Court of Appeals in Booster.

Neither are we persuaded that distinctions argued by the Employer such as that the amendment of its charge to a § 8(b)(1)(B) violation, without the specific withdrawing of the § 8(b)(1)(A) violation, shield it from the pronouncement of the Supreme Court in Boeing. There it is clearly adjudicated that the Board is without authority to inquire into the reasonableness of a penalty assessed by the union, so long as the penalty does not impair the employment status of the member. The union or the member must seek elsewhere for any redress to which it or he may be entitled.

Ill

In No. 72-1521, the Board is reversed in its determination that Peebles was a § 8(b)(1)(B) representative, since no credible evidence supports the Board’s conclusion. The Board is affirmed in its findings that Hauserman, Kubeja, and Szoszorek were § 8(b)(1)(B) representatives. The case is remanded to the Board for findings on the type of work performed by the three during the strike —whether supervisory or rank-and-file struck work- — and a determination in the light of International Brotherhood, San Francisco, and Wisconsin Electric. Nothing contained herein is to be regarded at this time as an intimation of our acceptance of either of the positions adopted in those cases.

In No. 72-1633, the action by the Board in denying the motion of the Employer for leave to file a second amended charge and to stay the proceedings to permit General Counsel to amend the complaint, and in refusing to inquire into the reasonableness of the fines is affirmed. The petition of the Employer is denied.

The cross-application of the Board for enforcement of its order against the Union is denied.

The Board should submit a judgment consistent with this opinion.

      . 192 N.L.R.B. No. 159 (May 18, 1972).

      . 29 U.S.C. § 158(b) (1) (B) : “It shall be an unfair labor practice for a labor organization or its agents — (1) to restrain or coerce (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances; . ”

      . 29 U.S.C. § 158(b) (1) (A) : “It shall be an unfair labor practice for a labor organization or its agents — (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in Section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; . . . . ”

      . The Erie Morning News, Erie Daily Times and Erie Sunday Times-News.

      . This contract, Respondent’s Exhibit Xo. 7, appears at page 190a and following in the Joint Appendix. It provides, in part: (1) for a closed shop with the exception of (2) the business manager, executive editor, confidential secretary to the Publisher, suburban correspondents, and those employed at space rates, circulation manager, head of the accounting department, managing editor, national, local and classified advertising managers. The only other exception in the contract is: “All of the provisions of this agreement except as to hours and wages shall apply to the following: Sports Editor, Motor Route Supervisor, Manager and Advertising Collections, City Editor, City and County Circulation Managers, Assistant Circulation Manager.” The contract (Art. XII) specifies the arbitration of grievances through a four-step process: (1) negotiations between the department head and a committee from the Union; (2) negotiations between a management representative and the Union; (3) mediation by a state or federal mediator; and (4) arbitration.

      . The employees, the amount of their fines and, where the record indicates, their titles, follow:

      . There were five employees whose “supervisory” status became an issue: Frank Foye, Jan Hauserman, Richard Kubeja, Betty Pee-bles, and George Szoszorek. The record does not indicate whether the work performed by these employees during the strike was supervisory or rank-and-file.

      . The exact charges do not appear in the record but were apparently “crossing a picket line in violation of the strike vote was a violation of the constitution and the by-laws . . . . ” Joint Appendix at 209a.

      . See note 6.

      . See note 3.

      . Joint Appendix at 3a.

      . See note 2.

      . Hauserman, Kubeja, Peebles, and Szoszo-rek. See note 6.

      . Frank Foye. See note 6.

      . 29 U.S.C. § 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.”

      . Joint Appendix at 218a.

      . N.L.R.B. v. Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers Int’l Union, AFL-CIO, 175 N.L.R.B. 1072 (1969) (“Toledo Blade”).
      International Ass’n. of Heat & Frost Insulators & Asbestos Workers, Local 127 (Cork Insulating Company of Wisconsin, Inc.), 189 N.L.R.B. 854 (1971) (“Cork Insulating”).
      Detroit Newspaper Printing Pressmen’s Union No. 13, Int’l Printing Pressmen and Assistants’ Union of North America, AFL-CIO and the Detroit Free Press, 192 N.L. R.B. 106 (1971) (“Detroit Free Press”).

      . See note 17.

      . 175 N.L.R.B. 1072, 1079 (1969).

      . 437 F.2d 55, 57 (6th Cir. 1971).

      . See note 17.

      . 189 N.L.R.B. 854, 857 (1971).

      . Id.

      . See note 17.

      . 192 N.L.R.B. 106, 107 (1971).

      . Board’s brief at 12-13.

      . Joint Appendix at 48-49a (Hauserman), 67-68a (Kubeja), and 57-58a, 60-61a (Szo-szorek) .

      . These cases were decided by the courts subsequent to the Board’s decision in the case at hand.

      . N.L.R.B. v. San Francisco Typographical Union No. 21, 486 F.2d at 1349 (9th Cir., 1973).

      . The evolution of decisions on the subject matter of the issues in these eases is analyzed in great detail in International Bhd.

      . International Bhd. of Elec. Workers, AFL-CIO and Local 134, Int’l. Bhd. of Elec. Workers, AFL-CIO v. N.L.R.B., 487 F.2d at 1143 (D.C.Cir. 1973).

      . Section 14(a) states:
      “(a) Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.” 29 U.S.O. § 164(a).
      Section 2(3) reads:
      “(3) The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from "time to time, or by any other person who is not an employer as herein defined.”’ 29 U.S.C. § 152(3).

      . See note 15.

      . International Blid. of Elec. Workers, AFL-OIO and Local 134, Int’l Bhd. of Elec. Workers, AFL-CIO v. N.L.R.B., 487 F.2d at 1143 (D.C.Cir. 1973).

      . Id. 1167.

      . The 60 supervisors in Wisconsin held qualified union memberships, and were not part of the bargaining unit. They carried “union withdrawal” cards which meant that there was no obligation to pay dues. The supervisors could “regain regular membership without fulfilling normal reinstatement requirements.” Holders were also entitled to pension and insurance benefits. Holders could not attend meetings.

      . International Bhd. of Elec. Workers v. N.L.R.B., 487 F.2d 1113 (D.C.Cir. 1972).

      . The court said :
      “This opinion was prepared before the release of the District of Columbia’s en banc opinion in International Brotherhood of Electrical Workers v. National Labor Relations Board, 487 F.2d 1143, decided June 29, 1973. In its en bane opinion the District of Columbia Circuit also disposed of National Labor Relations Board v. Florida Power & Light Co., wherein some of the supervisors disciplined for performing struck work were not included in the bargaining unit, were not represented by the union in bargaining, were only affiliated with the union by virtue of withdrawal cards, and were not shown to have been accorded an express option by the employer as to working during the strike. At the very least, insofar as it reaches an opposite conclusion on these facts, we disagree with the majority opinion therein and are in accord with Judge MacKinnon’s dissenting opinion representing the views of himself and Judges Tamm, Robb, and Wilk-ey.” (Emphasis added.) (486 F.2d at 606.)

      . See note 2.

      . Booster Lodge No. 405, Int’l Ass’n. of Machinists and Aerospace Workers v. N.L.R.B., 148 U.S.App.D.C. 119, 459 F.2d 1143 (1972).

      . N.L.R.B. v. Kobritz, 193 F.2d 8 (1st Cir. 1951) and News Printing Company, Inc. v. N.L.R.B., 98 U.S.App.D.C. 14, 231 F.2d 767 (1956).

      . Joint Appendix at 248a n. 2.

      . Joint Appendix at 256a.

      . Saez v. Goslee, 463 F.2d 214 (1st Cir. 1972) (General Counsel refused to issue a complaint when plaintiff filed an unfair labor charge against former employer); Henderson v. Int’l. Longshoremen’s Local 50, 457 F.2d 572, 578 (9th Cir. 1972) (Court of Appeals had no jurisdiction to review General Counsel’s refusal to institute an unfair labor practice complaint); United Elec. Contractors Ass’n. v. Ordman, 366 F.2d 776 (2d Cir. 1966) (District Court may not review General Counsel’s exercise of discretion). See also Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (dictum) (employee entitled to review of complaint by Board; General Counsel may refuse to institute a complaint).

      . The Court held in Boeing,
      “Inquiry by the Board into the multiplicity of factors that the parties and the Court of Appeals correctly thought to have a bearing on the issue of reasonableness would necessarily lead the Board to a substantial involvement in strictly internal union affairs. While the line may not always be clear between those matters that are internal and those that are external, to the extent that the Board was required to examine into such questions as a union’s motivation for imposing a fine it would be delving into internal union affairs in a manner which we have previously held Congress did not intend. [Footnote omitted.] Given the rationale of Allis-Chalmers and Scofield, the Board’s conclusion that § 8(b)(1)(A) of the Act has nothing to say about union fines of this nature, whatever their size, is correct. Issues as to the reasonableness or unreasonableness of such fines must be decided upon the basis of the law of contracts, voluntary associations, or such other principles of law as may be applied in a forum competent to adjudicate the issue. Under our holding, state courts will be wholly free to apply state law to such issues at the suit of either the union or the member fined.” 412 U.S. 67, 74, 93 S.Ct. 1952, 1956, 36 L.Ed.2d 752 (1973).


source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    Ralph HALL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1792
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 8, 1974.

      Gerald L. Burrows, Atlanta, Ga. (Court-appointed), for petitioner-appellant.
    John W. Stokes, Jr., U. S. Atty., William P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. al., 5 Cir. 1970, 431 F.2d 409, Part I. Citizens Casualty Company of New York et

   GOLDBERG, Circuit Judge:

Ralph Hall appeals the denial of his motion to vacate sentence, filed pursuant to 28 U.S.C. § 2255 (1970). On appeal he repeats the claims made in the original motion that in the proceedings leading to his conviction, he was denied effective assistance of counsel in violation of the Sixth Amendment, and that the trial judge who accepted his plea of guilty failed to comply with the requirements of Fed.R.Crim.Proc. 11. In addition, he now claims that in the Section 2255 evidentiary hearing conducted below, the district judge improperly placed on Hall, the petitioner, the burden of proof on the issue of the voluntariness of his guilty plea.

We begin with Appellant’s ineffective assistance of counsel claim. Initially Hall indicated a desire to retain private counsel, but subsequently requested and received a court-appointed attorney. Appellant’s complaints against his court-appointed counsel were quite specific, and if true might have established a violation of the Sixth Amendment. Both Appellant and the attorney testified at the Section 2255 hearing, and the attorney answered Hall’s charges in some detail. The district judge thus had an opportunity to evaluate the credibility of the witnesses first hand. His was the responsibility for weighing the conflicting testimony, and he resolved the conflicts against Hall. That decision is not clearly erroneous.

Appellant was indicted in August 1966 for interstate transportation of a stolen vehicle, 18 U.S.C. § 2312 (1970), and kidnapping, 18 U.S.C. § 1201 (1970). He pleaded guilty to both charges on September 28, 1966, and thereafter was sentenced to concurrent terms of five years on the Dyer Act charge and twenty years on the kidnapping charge. He took no direct appeal.

The date of the guilty plea — September 28, 1966 — is extremely important in resolving Hall’s second allegation of error, for several significant amendments to Fed.R.Crim.Proc. 11 became effective on July 1, 1966. See generally 8 Moore's Federal Practice, Cites — Rules of Criminal Procedure |f|f 11.01, 1103 (2d ed. 1973); 1 Wright, Federal Practice and Procedure §§ 171-75 (1969). Previously Rule 11 required that before accepting a plea of guilty, the court should determine that the plea was made voluntarily and with understanding of the nature of the charge. Since July 1, 1966, however, Rule 11 has mandated that before accepting a guilty plea the court must “address the defendant personally” in order to determine “that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” In addition, “[t]he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.” The goal of the amended rule remains essentially what it was before —to ensure that guilty pleas be truly voluntary and to allow expeditious disposition of post-conviction attacks on guilty pleas. McCarthy v. United States, 1969, 394 U.S. 459, 465-466, 89 S.Ct. 1166, 22 L.Ed.2d 418, 425. Nevertheless, the degree to which the amendments required modification of the eus-tomary methods followed in accepting a plea in order to enhance the reliability of the voluntariness determination must not be overlooked.

Appellant Hall, accompanied by counsel, pleaded guilty nearly three months after the 1966 amendments became effective. We have not been provided with a complete transcript of the proceedings, but the portion cited by Appellant in his brief, set out in the margin, clearly reveals that Rule ll’s literal requirements were not satisfied. Indeed, the Government seems to concede the absence of exact adherence to the revised Rule 11 procedure, and the court below noted the failure of the Rule 11 trial court to “make a specific investigation of the voluntariness of the petitioner’s plea . . . . ” [Record at 179]

In McCarthy v. United States, supra, the Supreme Court held that Rule 11 must be strictly construed and that courts must strictly comply with its requirements. The Court also held that a defendant must be allowed to replead if the record of the original pleading process does not reflect scrupulous compliance with the requirements of the rule. In Halliday v. United States, 1969, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16, the Court declined to apply the “automatic prejudice,” repleading aspect of McCarthy retroactively, expressly limiting that portion of McCarthy to defendants whose guilty pleas were accepted after April 2, 1969. The Court based its decision in Halliday in part on the facts, previously noted in McCarthy, that the repleading practice had theretofore been followed in only one circuit and that prior to the 1966 amendments it was common for district judges not to interrogate defendants personally before accepting guilty pleas. Halliday v. United States, supra, 394 U.S. at 833, 89 S.Ct. at 1499, 23 L.Ed.2d at 20. See Fed.R. Crim.Proc. 11, Notes of Advisory Committee on Criminal Rules. Indeed, prior to the 1966 amendments the practice of trial judges not interrogating defendants personally was common in this Circuit. E. g., Meeks v. United States, 5 Cir. 1962, 298 F.2d 204.

Halliday thus makes it clear that literal noncompliance with the requirements of Rule 11 does not end the analysis when defendants, such as Hall, who pleaded guilty between July 1, 1966, and April 2, 1969, launch post-conviction attacks on guilty pleas. If the record does not demonstrate literal compliance with Rule 11, a hearing must be held in which the Government bears the burden of proving that the guilty plea was in fact entered voluntarily and understanding^. Monroe v. United States, 5 Cir. 1972, 463 F.2d 1032; Barton v. United States, 5 Cir. 1972, 458 F.2d 537. See Diggs v. United States, 5 Cir. 1971, 447 F.2d 460, cert. denied, 1972, 409 U.S. 882, 93 S.Ct. 170, 34 L.Ed.2d 138; Lane v. United States, 5 Cir. 1967, 373 F.2d 570; Rimanich v. United States, 5 Cir. 1966, 357 F.2d 537.

Appellant cites a portion of the transcript from the Section 2255 hearing below to support his argument that the court improperly placed the burden on the voluntariness issue on petitioner. Although the quoted language is admittedly ambiguous, we disagree with Appellant’s interpretation of what happened. A review of the entire transcript reveals that throughout the proceeding all concerned placed primary emphasis on Hall’s ineffective assistance of counsel claim. On that issue, Appellant did bear the burden of proof both in the sense of the burden of going forward with the evidence and in the sense of the risk of nonpersuasion. Reading the quoted language in context, it seems likely that the court was simply referring to the burden of proof in the sense of the duty of going forward with the evidence. ■ Moreover, both sides submitted post-hearing briefs in which the Government readily admitted, as it does in this appeal, that it bore the risk of nonpersuasion on the issue of the volun-tariness of the plea. We do not believe that the court below improperly relieved the Government of that burden.

Although primary emphasis in the hearing below was on the effectiveness of the court-appointed counsel’s assistance, Hall’s complaint on that issue was closely linked to his charge that his guilty plea was accepted in violation of Rule 11. Reading the entire transcript of the Section 2255 hearing reveals a good deal of testimony relating to the voluntariness of Hall’s plea. In addition, each side briefed the issue in the post-hearing briefs. Notwithstanding the efforts made by the Government and the court on the voluntariness issue, however, we have concluded that further investigation into one aspect of Rule 11 is necessary.

On remand the court should focus on the final sentence of Rule 11, called the most significant of the 1966 amendments, which requires that judgment shall not be entered on a guilty plea unless the court is satisfied that there is a factual basis for the plea. In the initial 2255 motion filed pro se, Hall alleged that the pleading court failed to comply with this requirement. The portion of the 1966 proceeding cited by Hall supports this allegation, and we are unable to find from the rest of the record before us that there was a factual basis for the plea that was apparent to the court in 1966.

Thus this case falls in the category of cases described by then Chief Judge Lumbard in Manley v. United States, 2 Cir. 1970, 432 F.2d 1241, 1245 (en banc):

[T]here will be pleas of guilty in the period between July 1, 1966, when the amendment of Rule 11 became effective, and April 2, 1969, where the record does not show that the sentencing judge knew that there was a factual basis for the plea .... If the existence of a factual basis is questioned in such a case and there is reason to believe that a hearing would show that the court was aware of a factual basis for the plea before judgment was entered upon it, then the district court should hold a hearing and make a finding thereon. If such a finding can be made, we see no need to vacate the plea.

See United States v. Antoine, 2 Cir. 1970, 434 F.2d 930; United States v. Tucker, 4 Cir. 1970, 425 F.2d 624.

Without intending to restrict the avenues of inquiry that the court below might pursue on remand, we note that the 1966 court might have satisfied itself of the factual basis for the plea in various ways, including “inquiry of the defendant or the attorney for the government, or by examining the presentence report, or otherwise . . . . ” Fed.R.Crim.Proe. 11, Notes of Advisory Committee on Criminal Rules. We do intend to emphasize the importance of this portion of Rule 11, and to caution that judgment' on Hall’s guilty plea should not have been entered unless the court in fact was satisfied that “the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.” Id. See United States v. Untiedt, 8 Cir. 1973, 479 F.2d 1265; Reed v. United States, 5 Cir. 1973, 471 F.2d 721; United States v. Tucker, supra.

Accordingly, we affirm the district court on the issue of ineffective assistance of counsel and remand for further proceedings consistent with this opinion on the Rule 11 problem.

Affirmed in part and remanded in part.

      . MR. HAND [for the Government] : Call Case No. 24,856, Mr. Ralph Hall. Mr. Hall, will you come forward, please, sir.
      (Whereupon, the defendant approached the bench with counsel.)
      MR. HAND: Mr. Matthews represents Mr. Hall, having been previously appointed by the Court.
      THE COURT: All right, sir.
      MR. HAND: Mr. Matthews and Mr. Hall, you have received a copy of the charges, is that correct?
      MR. MATTHEWS : Yes.
      MR. HALL: Yes.
      MR. HAND: It is my understanding at this time you wish to waive formal arraignment, is that correct?
      MR. MATTHEWS: That’s correct, isn’t it, Mr. Hall?
      MR. HALL: Yes, sir.
      MR. HAND: All right, sir, let me advise you before you enter your plea as to Count One the maximum punishment would be a life sentence; as to Count Two the maximum punishment is a five-thousand-dollar fine, five years imprisonment or both.
      Count One charges a kidnapping charge.
      Count Two is interstate transportation of a stolen motor vehicle.
      You have discussed these charges with your attorney?
      MR. HALL: Yes, sir.
      MR. HAND: You understand both charges?
      MR. HALL: Yes, sir.
      MR. HAND: All right, sir.
      Mr. Matthews, and Mr. Hall, how do you wish to plead?
      MR. MATTHEWS : How do you wish to plead?
      MR. HALL: Guilty.
      THE COURT: When did you decide to plead guilty, sir?
      MR. HALL: After a long and careful consideration over the weekend, sir.
      THE COURT: Have you ever had any experience in court before?
      MR. HALL: No, sir, not really.
      THE COURT: You understand what the maximum sentence could be for this plea that you are entering?
      MR. HALL : Yes, sir.
      THE COURT: And in view of that you still wish to enter your plea of guilty?
      MR. HALL: Yes, sir, Your Honor.
      THE COURT: All right, I will accept it.

      . MR. GAFFNEY [for respondent United States] : If Your Honor please, is the posture of this hearing today that the Government is ordered to show cause why the allegations are not to be taken as true so that we must put up evidence first, or .
      THE COURT: The movant would proceed first.
      MR. BURROWS [for petitioner Hall]: All right, sir. «
      THE COURT: The burden is on him to show it.
      [Transcript at 5]

      . 8 Moore, supra, at ¶ 11.03 [4]. See 1 Wright, supra, at § 174.

      . Neither the attorney appointed to represent Hall on the 2255 motion, the Government, or the court below have referred to this portion of Hall’s complaint. Nevertheless, it is our duty to take notice of it, especially in view of Hall’s repeated denials in the 2255 hearing that he committed the acts with which he was charged. See United States v. Untiedt, 8 Cir. 1973, 479 F.2d 1265; Majko v. United States, 7 Cir. 1972, 457 F.2d 790.


author: MERRILL, Circuit Judge.

text:
    In the Matter of Toula FREEMAN, aka Toula Freeman Raasch, Toula Wig & Toula Enterprises, Bankrupt. Alfred FREEMAN, Petitioner-Appellee, v. George RITNER, Respondent-Appellant.
    No. 71-3028.
    United States Court of Appeals, Ninth Circuit.
    Dec. 11, 1973.

      Murry Luftig (argued), San Diego, Cal., for respondent-appellant.
    A. Lee Estep, Richard A. Peterson (argued), San Diego, Cal., for petitioner-appellee.
   OPINION

Before MERRILL and HUFSTEDLER, Circuit Judges, and KELLEHER, District Judge.

MERRILL, Circuit Judge.

In April, 1966, the bankrupt and her husband agreed that the latter should have, as a part of his share of their property in a divorce settlement, all of any federal income tax refund due to the couple as husband and wife or to either of them. Three-and-one-half years later, in August, 1969, a refund check in the sum of $10,301.47 was issued by the Government. By that time proceedings involving bankruptcy of the wife were pending and the check was taken over by the trustee. The referee ruled that the trustee had a qne-half interest in the refund. The husband sought review of that holding and the District Court reversed. This appeal was then taken by the trustee. We affirm.

It is conceded that the assignment by the bankrupt to her husband in 1966 was not in accordance with the Assignment of Claims Act, 31 U.S.C. § 203. Failure to comply with the Assignment of Claims Act renders the assignment null and void so far as the United States is concerned. However, it does not render the assignment void as between the parties. In Martin v. National Surety Co., 300 U.S. 588, 57 S.Ct. 531, 81 L.Ed. 822 (1937), it was held that even though an assignment was void so far as the United States was concerned, once the assigned claim had been paid by the United States the assignment was effective against a subsequent assignee with notice. The Court stated:

“The provisions of the statute making void an assignment or power of attorney by a Government contractor are for the protection of the Government. [Citations omitted.] In the absence of such a rule, the Government would be in danger of becoming embroiled in conflicting claims, with delay and embarrassment and the chance of multiple liability. [Citation omitted.] But as applied to the fund in controversy, that peril is now past. The fund is in court to be distributed to rival claimants, with the Government discharged irrespective of the outcome. * * * [T]he Government is not concerned to regulate the equities of claimants growing out of irregular assignments when collection is complete and liability is ended. The purpose of the statute ‘was not to dictate to the contractor what he should do with the money received on his contract after the contract had been performed.’ [Citation.] * * * A transfer of the fund after payment is perfected is of no concern to any one except the parties to the transaction, and this quite irrespective of the time of the assignment or the manner of its making.
******
[T]he statute must be interpreted in the light of its purpose to give protection to the Government. After payments have been collected and are in the hands of the contractor or subsequent payees with notice, assignments may be heeded, at all events in equity, if they will not frustrate the ends to which the prohibition was directed. * * * An assignment ineffective at law may none the less amount to the creation of an equitable lien when the subject matter of the assignment has been reduced to possession and is in the hands of the assignor or of persons claiming under him with notice.”

300 U.S. at 594-595, 596-597, 57 S.Ct. at 534.

In Danning v. Mintz, 367 F.2d 304 (9th Cir. 1966), this court recognized that failure to comply with the Assignment of Claims Act did not render the assignment invalid as between the parties.

At the time of assignment, then, while the assignor had a present existing claim against the United States, she could not effectively transfer to another the right as she enjoyed it, since she could not transfer to another the power to press the claim against the United States. One effect of the assignment, then, was to convert the right assigned into a future right — a right to the proceeds of payment once the claim was paid by the United States.

The assignability of such a right depends on local law. Danning v. Mintz, supra, 367 F.2d at 308. Under California law (the law here applicable), a future right can be assigned. It becomes operative at the time the right assigned comes into existence or becomes recoverable, without any further act on the part of the transferor, and relates back to the date of the assignment. Prudential Insurance Co. v. Broadhurst, 157 Cal.App.2d 375, 388, 321 P.2d 75, 77 (1958).

Here, then as in Martin and in Danning v. Mintz, the assignment would be valid as against a subsequent assignee.

The trustee contends, however, that since the assignment was not enforceable between the parties until paid by the United States, it was not “perfected” until then within the meaning of 11 U.S.C. § 96(a) (2), and thus must be deemed to have been made immediately before the filing of the petition in bankruptcy and to constitute a voidable preference. The question was reserved by this court in Danning v. Mintz, supra, 367 F.2d at 308. Matter of Ideal Mercantile Corporation, 244 F.2d 828 (2d Cir. 1957), supports the trustee’s position. We must respectfully disagree.

The “perfection” of transfer under § 96(a)(2) must be such that no subsequent lien acquired by a simple contract creditor of the assignor upon the transferred property could become superior to the rights of the transferee. If the Assignment of Claims Act did adversely affect the transfer (and if that were the only disability) it would, to the same extent and for the same reason, do so as to any subsequent transferee or lienor. The existence of an identical disability would preclude the gaining of superiority.

But in truth the Assignment of Claims Act does not adversely affect the transfer in the sense of § 96(a)(2) “perfection.” It is not the right against the United States that must be “so far perfected” but the right as against the assignor (or others who may claim under her) to have the claim once it becomes recoverable. The question is whether the assignor has so completely and irrevocably parted with her interest in the transferred property that there is nothing left that could be passed on by her or reached through her by others. Since local law gives recognition to the validity of the assignment as against the assignor or any subsequent assignee, and gives such recognition as of the date of the assignment, and since the Assignment of Claims Act under Martin v. National Surety Co., supra, does nothing to disturb this result, this question must be answered in the affirmative.

We conclude that the transfer was, as of its date, perfected to the extent required by § 96(a) (2).

Judgment affirmed.

       Honorable Robert J. Kelleher, United; States District Judge for the Central District of California, sitting by designation.

      . It is not claimed that the transaction was such that the filing requirements of Division 9 of the California Uniform Commercial Code are applicable. It appears that the transaction is governed by California Civil Code § 955.1, in that it involved “a transfer other than one intended to create a security interest * * * of [a] general intangible * * * consisting of any right to payment * * *.” Under this statute no filing is required to perfect the transfer against third persons; perfection is accomplished by a writing between the parties to the assignment. In this ease it appears that a sufficient writing existed.

      . “For the purposes of subdivisions (a) and (b) of this section, a transfer of property other than real property shall be deemed to have been made or suffered at the time when it became 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. * * * If any transfer of * * * property * * * is not so perfected against such liens by legal or equitable proceedings prior to the filing of a petition initiating a proceeding under this title, it shall be deemed to have been made immediately before the filing of the petition.”


author: GIBBONS, Circuit Judge. VAN DUSEN, Circuit Judge

text:
    Thomas TAGGART, Appellant, v. WADLEIGH-MAURICE, LTD., and Warner Bros., Inc., Appellees.
    No. 72-1531.
    United States Court of Appeals,. Third Circuit.
    Submitted Under Third Circuit Rule 12(6) July 2, 1973.
    Reargued Sept. 5, 1973.
    Filed Sept. 21 1973.
    Rehearing Denied Oct. 24, 1973.

      Van Dusen, Circuit Judge, dissented and filed opinion.
    Charles J. Farley, Jr., Orange, N. J., for appellant.
    Roger S. Clapp, Clapp & Eisenberg, Newark, N. J., for appellees.
    Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from the grant of defendants’ motion for summary judgment. The pleadings, affidavits, and depositions on file establish that the appellant Taggart is an employee of Port-O-San, a corporation engaged in the business of furnishing and servicing portable latrines. Taggart was sent by his employer to Bethel, New York in August, 1969 to service such portable latrines furnished by Port-O-San to the promoters of the Woodstock music festival. While he was servicing the Port-O-San latrines he was, according to his complaint and deposition, diverted from that work and engaged in conversation by agents of defendant Wadleigh-Maur-ice, Ltd., who were filming the festival, and photographed by sound motion picture. Wadleigh-Maurice, Ltd. during the course of the festival took over 315,000 feet of film (about 120 hours of viewing). From this 315,000 feet of film a feature length “documentary” was assembled, which defendant Warner Bros. Inc. undertook to distribute for commercial viewing. There is no dispute that the festival, the preparation of the film, and its distribution to theatres were all undertaken for commercial profit-making purposes. In those parts of the 315,000 feet of film chosen for inclusion in the “documentary” and thereby given widespread public dissemination is a sequence of approximately two minutes depicting Taggart emptying latrines. . Taggart’s deposition discloses the circumstances in which he was photographed :

“Q. Basically, at the time you were at Woodstock and you were approached by these two men, had you ever seen them before ?

A. No, I never did.

Q. Did you know who they were?

A. No, I have no idea.

Q. How did they engage you in conversation ?

A. Well, as I said before, as I was working these two men just came up and started talking to me. What are you doing there, I think was the key sentence. What are you doing there, they said.

Q. You responded to the conversation that ensued ?

A. Yes. From there on, I went on about my business, about doing my work. As I was, they spoke to me and asked me what was this, and so forth.

Q. Did you respond to anything they asked you ?

A. I responded to the questions they asked me.

Q. You mentioned before that they had cameras. How big were the cameras they had? Can you show us?

A. They looked like the little square box or something like that.

MR. FARLEY: Indicating about six inches long.

A. Maybe rectangular.

Q. Do you have a home movie camera yourself at home ?

A. I have one, yes. It would be not in that category. It would be more like my son’s. Thomas has one with a zoom thing on it and stuff like that.

Q. The camera that the man was holding, was that similar to the camera your son has ?

A. It would be something like that.

Q. So the cameras were like home movie type cameras ?

A. Yes.

Q. Did you see any of those large cameras that they used to depict when they show the news ?

A. No.

Q. You didn’t see anything like that?

A. No. Whatever it was they had was strapped. They had them in a strap on their neck.

Q. A strap to hold the camera?

A. Yes, a little bit of a strap.

Q. In the general vicinity through these days you were at the festival, were there many people with cameras of various types ?

A. As I recall, I saw different types of cameras. I wouldn’t say there was a wholesale thing with cameras there, you know.

Q. At any time did anyone ask your permission to take the picture?

A. Well, not that they asked me. Nobody came up to me and said, can I take your picture, nothing like that. They just came up and started talking. As they were talking-

Q. Was one talking to you and the other took the picture ?

A. It was a combination. I don’t know if I’m making myself clear here # * * * •* *

Q. In relation to the two men taking your picture did you know that they were taking it for any public released?

A. No. I had no idea of that.”

Taggart contends that the sequence in which he was interrogated while performing his necessary though not necessarily pleasant employment was edited into the “documentary” in such a way as to achieve, at his expense, a comic ef-feet. That this may well have been the intended and actual effect is supported by evidence in the record of the reaction of critics. For example, Kathleen Carroll, the critic, stated “[T]he funniest scene shows the latrine attendant proudly demonstrating his job.” Craig Mc-Gregor, writing in the New York Times, April 19, 1970, stated “. . . and the man who is the real schizophrenic hero of Woodstock, the Port-O-San man, who empties the latrines of the beautiful people and has one son there at Woodstock and another flying a DMZ helicopter in Vietnam.” Taggart contends that while he was engaged in his ordinary work he was without warning, and without consent, drawn into a conversation and photographed so that the sequence could be used as a key part of the theme of the “documentary” which was being prepared as a commercial enterprise.

When Taggart learned that he had been included in the commercial film he protested to the defendants, but they refused to delete the scene and proceeded to distribute the film nationwide. As a result, he alleges, he has suffered mental anguish, embarrassment, public ridicule, and invasion of his right to privacy which has detrimentally affected his social and family life and his employment. His deposition supports his contention that such ongoing damaging effects have occurred and are continuing. In this diversity civil action he seeks damages and an injunction against continued distribution of the offending scene. The complaint contains a demand for a jury trial. Fed.R.Civ. P. 38(b).

Moving for summary judgment, the defendants placed principal reliance on Man v. Warner Bros. Inc., 317 F.Supp. 50 (S.D.N.Y.1970). In that case Man, a professional musician, was at Woodstock, where at 4 A.M. he mounted the stage and played “Mess Call” on his Flu-gehorn. His performance was photographed by the Wadleigh-Maurice camera crews, and was edited into the documentary without his consent. He brought a diversity action for injunctive relief pursuant to New York’s right of privacy statute, N.Y.Civ.Rights Law § 51 (McKinney’s Consol.Laws, c. 6, 1948), and moved for a preliminary injunction. The defendant made a cross motion for summary judgment, which was granted. The district court recognized that § 51 may not be applied to afford relief either to a public figure or in a matter of public interest in the absence of proof that the. defendant published false material with knowledge of its falsity or in reckless disregard of the truth. E.g., Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 7 L.Ed.2d 456 (1967). In justification for the grant of summary judgment the court pointed out (1) that a professional musician who mounts a stage to give a performance before an audience of 400,000 is a public figure, (2) that in any event the depiction of his performance was merely a factual depiction of his participation in a newsworthy event, and (3) that plaintiff’s forty-five second performance was de minimis.

The transcript of the argument on the motion for summary judgment in this case discloses that the district court appreciated several distinctions between this case and Man. First, Taggart was not a professional musician performing before an audience of 400,000. He was an ordinary working man going about his lowly task. Second, the reaction of the critics suffices to prevent the entry of summary judgment on a de minimis basis. The latrine sequence apparently makes a significant and memorable contribution to the film’s overall impact. Thus, if summary judgment is to be sustained, it must be sustained solely because Taggart was a participant in a newsworthy event, and as such, outside the protection of § 51 or some other statutory or common law right of privacy. The district judge recognized, however, that it would be one thing to photograph Taggart as he went about his duties at a newsworthy event and to include such a photograph in a factual description of the event, but quite another thing to deliberately draw him out in conversation for the purpose of making him an inadvertent performer in a sequence intended to be exploited for its artistic effect. Recognizing this distinction, the district judge viewed the offending film sequence, and ruled:

“I react, as Mr. Dershowitz’s remarks indicate, as the reasonable man might react after seeing the film. I come to a different conclusion after having seen the film than I did from reading just the dialogue. It was not so much a drawing out as to expose him to a substantial participation in the film. The event fits in a perspective of moving from one aspect of this festival to the next. He was not diverted from the work he was doing and brought, so to speak, upon the stage and made somebody separate and apart from the fellow who was working at the time they focused the camera on him. It is a very difficult line to draw.
I believe as you do, as I indicated before the luncheon recess, that there still is an area left where somebody does set out deliberately to make somebody participate in gaining a profit without compensation to him. But there is still an area where that is not protected by the First Amendment eases. I do not think that falls on this side of the line. I feel that summary judgment is indicated and I will grant the motion.” (Tr. at 32).

The difficulty with this ruling is that it chooses between Taggart’s version, that he was drawn out and made an involuntary performer, and the defendants’ version, that he was a mere participant in a newsworthy event. The court did so on the basis of a view of a part of the whole film. The sequence which he viewed undoubtedly was significant evidence in support of the defendants’ position. But it was only evidence to be weighed against Taggart’s testimony and the reaction of the critics. That weighing process was made before the plaintiff had had the opportunity to present his full case, and it was made by the judge in a case in which a jury trial was demanded. Whether Taggart had been drawn out as a performer rather than merely photographed as a participant in a newsworthy event is on this record at best a mixed question of law and fact. Factual determinations in a § 51 case are for the jury. Garner v. Triangle Publications, Inc., 97 F.Supp. 546 (S.D.N.Y.1951).

Clearly, then, the record presents disputed fact issues. We can affirm the grant of summary judgment on such a record only if we are prepared to hold that as a matter of law the defendants are entitled to judgment even if Taggart was deliberately drawn out as a performer in a commercial film. Such a ruling would leave very little to § 51 or to any similar statutory or common law right of privacy. It would be predicated upon a more absolutist interpretation of the first amendment than has yet been espoused by a majority of the Supreme Court. But more important, such a ruling, if it is to be made, should be made on a record in which the facts have been fully developed. Only with such a record can the necessary balance between the conflicting rights of personal privacy and of freedom of expression properly be struck. We realize that requiring the defendants to defend in a trial rather than to obtain summary judgment puts them to additional expense, and arguably subjects their first amendment rights, should those rights ultimately be held to prevail over Tag-gart’s right to privacy, to that much extra “chill.” In the context of the problem — their commercial exploitation of Taggart’s allegedly induced performance —this degree of “chill” seems to us de minimis when compared with the unsatisfactory alternative of ruling on a potentially serious conflict between legally protected rights without a complete record.

Judge Van Dusen, dissenting, urges that where “constitutional fact” is involved a district court may on a motion for summary judgment, or an appellate court may on appeal, resolve disputed fact issues. Article III, Section 2 of the Constitution gave the Supreme Court appellate jurisdiction “both as to Law and Fact”. This clause produced an adverse public reaction which resulted in the seventh amendment preserving the right to trial by jury in civil cases and providing further that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Disputes over “constitutional fact” are no exception to the seventh amendment. See, e. g., Vandenburg v. Newsweek, Inc., 441 F.2d 378, 379 (5th Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 49, 30 L.Ed.2d 108 (1971), affirming denial of summary judgment. Just as disputed facts in a non jury case are determined by trial and not on summary judgment motion, a trial judge’s decision to instruct the jury with the New York Times standard or an appellate court’s de novo review of “constitutional fact” are both made after a full trial on the contested factual issues. Properly viewed these represent nothing more than the application of a governing legal standard to undisputed facts or to facts that are viewed in a light more favorable to one party. They do not involve the resolution of such credibility issues as whether or not Taggart was drawn out or was a willing participant. The label “constitutional fact” does not permit even an appellate court reviewing a full record to resolve credibility issues.

The judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion.

VAN DUSEN, Circuit Judge

(dissenting) :

I respectfully dissent and would affirm the granting of summary judgment by the district court.

The court has today characterized the issue before the district court as whether Mr. Taggart was “drawn out” and made an involuntary performer or whether he was a mere participant in a newsworthy event and concluded that such factual determinations are for the jury. If this case involved only the application of the New York statute to the factual situation presented here, I would agree that summary judgment was improperly granted.

However, the central issue before the district court was whether the rule of Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), applied to the facts of this ease. The question of whether or not Mr. Taggart was a participant in a newsworthy event, even if properly characterized as one of fact, involves a constitutional decision as to the proper application of a First Amendment standard. It must, therefore, be considered one of “constitutional fact” which the Supreme Court has said to be subject to de novo review. Rosenbloom v. Metromedia, 403 U.S. 29, 53-54, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) (opinion of Brennan, J.). In New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964), the Court said:

“This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper eases review the evidence to make certain that those principles have been constitutionally applied. This is such a ease, particularly since the question is one of alleged trespass across ‘the line between speech unconditionally guaranteed and speech which may legitimately be regulated.’ [Citing case.] In cases where that line must be drawn, the' rule is that we ‘examine for ourselves the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.’ ”

It follows that at trial such issues are properly decided by the judge on a motion for summary judgment, where there are no other genuine issues of material fact.

Furthermore, the Supreme Court has stated that in cases where a First Amendment privilege is claimed under the doctrine of New York Times Co. v. Sullivan, supra, “as is the case with questions of privilege generally, it is for the trial judge in the first instance to determine whether the proofs show respondent to be a ‘public official’.” Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966). Lower courts have generally assumed with little or no discussion that the question of whether a particular event constituted a matter of “public interest” is also for the trial judge to determine. See, e. g., Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 861-62 (5th Cir. 1970); Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 424 F.2d 920, 922, cert. denied, 398 U.S. 940, 90 S.Ct. 1844, 26 L.Ed.2d 273 (1970) ; Time, Inc. v. McLaney, 406 F.2d 565, 566 (5th Cir. 1969); United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 404 F.2d 706, 711-712 (9th Cir. 1968); Cerrito v. Time, Inc., 302 F.Supp. 1071, 1073 (N.D.Cal.1969); Sellers v. Time, Inc., 299 F.Supp. 582, 586 (E.D.Pa.1969); aff’d on grounds of state law, 423 F.2d 887 (3d Cir. 1970).. As I understand the claim that Mr. Taggart was “drawn out,” the issue is whether the brief questioning of Mr. Taggart in the midst of the Woodstock festival was an event of public interest. A decision on a motion for summary judgment was, therefore, appropriate.

“Male Voice: ‘You’re getting a little behind on this job aren’t yuh?’

Turning to the substantive question as to whether that decision was correct, it seems clear that this case falls within the rule of Time, Inc. v. Hill, supra. Since no showing of actual malice was made in the trial court, summary judgment was properly granted.

There is no question that the Woodstock festival itself was an event of public interest nor that Mr. Taggart, by his presence there, was a participant in it. Furthermore, counsel for appellant has conceded in oral argument that if Mr. Taggart had only been filmed and not interviewed, this action would be barred. I fail to see why the mere fact of the brief questions asked should alter that result.

There may arise cases where a reporter or film maker conducts an interview in such a way as to lose the constitutional privilege of Time, Inc. v. Hill, supra. For example, where an incident is staged, as in the television series “Candid Camera,” it would not seem to be an event of public interest. But here Mr. Taggart was simply filmed going about his ordinary occupation and asked a few questions that directly related to his participation in, and opinions on, a clearly newsworthy event. This is a common and important technique of investigative reporting and should enjoy the same constitutional protection as would a written or filmed account of that event. I would affirm the district court’s granting of summary judgment.-

      . Taggart resides in New Jersey. The governing law in New Jersey on the right of privacy from commercial exploitation is discussed in Canessa v. Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62 (L.Div. 1967). We do not here reach the issue of which state’s law governs.

      . Indeed, in the very cases which first enunciated the First Amendment privilege claimed here, the Supreme Court determined for itself the question of whether the facts alleged and proved at trial met the standard as to what kind of public official or public issue would require a showing of actual malice to allow recovery in a libel action. See New York Times Co. v. Sullivan, 376 U.S. 254, 270-271, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

      . The text of the dialogue from the film is as follows:
      “Taggart: ‘Okay. Somebody left their cane in here. Some poor fellow will come looking for his cane.’
      “Taggart: ‘Oh, they’ve been behind right along, besides, it’s not the idea of being behind it’s you just can’t keep up that’s what ' it is.’
      “Male Voice: ‘Usin’ a-quite a bit o’ that stuff, huh? (Referring to a spray.)
      “Taggart: ‘Yeah. That helps give yuh a little pleasanter uh, odor, you know. Yeah, with the disinfectant in thei'e and you put your deodorant bars in, makes it a little more pleasanter to go in there an’ use it.
      “Taggart: ‘That is it, gentlemen.’
      “Male Voice: ‘Well, you’re doing a good job here.
      “Taggart: ‘Thank you very much (laughs). Glad to do it for these kids. My son’s here too. An’ I got one over in Viet Nam too. He’s up in the DMZ right now. Flyin’ helicopters. Okay, see yuh later.’ ”


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. G & S METAL PRODUCTS COMPANY, INC., Respondent.
    Nos. 73-1142, 73-1154.
    United States. Court of Appeals, Sixth Circuit.
    Argued Oct. 19,1973.
    Decided Dec. 21, 1973.
    David Miller, N.L.R.B., for petitioner; Peter G. Nash, Gen. Coun., John S. Irving, Deputy Gen. Coun., Patrick Hardin, Associate Gen. Coun., Elliott Moore, Acting Asst. Gen. Coun., Robert G. Sew-ell, Attys., National Labor Relations Board Washington, D. C., on brief.
    Joseph L. Newman, Cleveland, Ohio, on brief for respondent.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PER CURIAM.

These cases are before the Court on the application of the National Labor Relations Board (hereinafter “the Board”) for enforcement of its orders issued July 28, 1972, and October 12, 1972, against G &■ S Metal Products Company, Inc., (hereinafter “the Company”). The Board’s decisions are reported at 198 N.L.R.B. No. 65 and 199 N.L. R.B. No. 100. The two enforcement proceedings were consolidated on appeal.

The issues presented by the Company all relate to whether the Board’s findings are supported by substantial evidence on the record as a whole.

The Company is engaged in the manufacture, sale and distribution of metal housewares. A number of the Company’s employees indicated an interest in union representation in February of 1971. An organizational campaign was begun in March of 1971 when contacts were' established with the Allied Industrial Workers of America (hereinafter “the Union”).

Odessa Austin and Tina Scales were employed by the Company as packers for a short time preceding the unionization activity. On March 7, 1971, Austin contacted the Union and she and Scales were given a number of Union authorization cards. The next day both women became members of the Union’s organizing committee, spoke to other employees, and distributed authorization cards. On March 22, Austin began to arrange for a Union meeting at her home. That same day the Company informant, Bobbie Jean Chase, reported Austin and Scales’ involvement. Later the same day (March 22) Austin was discharged and told that the reason for the discharge was dissatisfaction with her work. Scales was discharged without explanation on March 29.

Juanita Smith and Mable Head were also employed as packers by the Company and each had about two years service. Both signed authorization cards, became members of the Union organizing committee and otherwise involved themselves in union activities in early 1971. Although neither worker had previously received verbal or written reprimands regarding attendance or performance, they were discharged for absenteeism. Three or four days prior to the discharges Smith was warned by a lower echelon supervisor that she was being set up to be fired. The supervisor testified that he was told that the set up was initiated because Smith was head of union activity.

John Chase was a maintenance laborer hired about six months before the unionization drive started. Although he had been reprimanded for various reasons related to his work, the Company did not take action against him until he became an active advocate of union representation. During the first week of February, 1971, Chase tried to initiate organization of the employees. About that same time his mother, Bobbie Jean Chase, told a supervisor that “it was John that started the Union effort.” He was discharged February 12, and told that he was not needed anymore.

Shirley Lowe worked as a punch press operator and in various other capacities for the Company for two years. She signed a Union authorization card in April or May of 1971. On June 3, 1971, Lowe joined in the picketing of the Company during a one-day strike and later met with the Company as a member of the Union committee attempting to reach a settlement of the strike issues. In July her physician gave her a slip stating that she had a swollen hand which might have been caused by her operating the punch press and suggesting an alternative job. In spite of the fact that Lowe was experienced in a number of other jobs that the Company was seeking to fill through public notices, she was refused a job transfer and terminated.

Bobbie Jean Chase, the employee who had acted as informant at the request of Company officials, evidenced a change of heart after identifying a number of fellow employees as union people and she herself joined in organizational activities. In addition, she picketed during the June 3rd strike. The day after the strike both the Company president and a supervisor expressed their unhappiness at her newfound loyalties. After the picketing incident, Chase, who the Company knew had suffered a job-related back injury, was assigned to “sampling work” which required strenuous lifting. When she protested and requested lighter work she was told it was the lightest work available and was asked to tear up the physician’s slip. She refused and was fired.

Virginia Small was employed as a packer for a little over a year. She signed an authorization card, solicited other employees to sign cards, attended Union meetings and was a member of the Union’s organizing committee. She also participated in the meeting between the Company and the Union organizing committee dealing with the June 3rd strike. On the night of October 13, 1971, she became ill and upon medical examination was was told that she was in danger of suffering a miscarriage. A Company supervisor told her that she could come back to work when she got a doctor’s release. While out sick she was subpoened by the Board’s General Counsel to appear at the unfair labor practices hearing involving the Company. During cross-examination the Company’s attorney made the following statement to her: “May I inform you that you are not in the employ of the Company. That is all.”

On the basis of the foregoing facts the Board, in 198 N.L.R.B. No. 65, found that the Company had violated Section 8(a)(3) and (1) of the Act by discharging the employees because of their union activities, and had violated Section 8(a)(1) by interrogating an employee concerning the union activities of fellow employees and requesting her to inform it of such activity. In 199 N.L. R.B. No. 100, the Board found that the Company had discharged an employee because she gave testimony at a Board hearing contra to the demands of Section 8(a)(4). The Board ordered the Company to cease its unfair labor practices, halt its interference with employees’ rights, offer immediate reinstatement to the eight discriminatees and pay them for loss of earnings.

The issues raised by the Company are factual. As we recently stated, “in reviewing the credibility findings and the inferences drawn by the Board from the evidence, the test for a reviewing court is whether the conclusions are reasonable in light of the proven facts.” N.L.R.B. v. Paschall Truck Lines, Inc., 469 F.2d 74, 76 (6th Cir. 1972). ' In the case before us the Administrative Law Judge received evidence that would indicate illegal employer interference with union organizational activities. The discharging of numerous employees, some with good work records, within a short time after they became involved in union activities raised at least a reasonable inference that they were fired because of their union activities. The Board is permitted to infer unlawful intent from the circumstances surrounding such discharges. N.L.R.B. v. Lawson Printers, Inc., 408 F.2d 1004 (6th Cir. 1969).

Further evidence established that the activities of an informant interfered with the organizational activities of other employees, and the circumstances surrounding the discharge of Virginia Small suggest that she was fired because of the informant’s testimony. In light of the above, we conclude that the Board’s conclusions in these cases are supported by substantial evidence on the record as a whole.

The enforcement of the Board’s orders is granted.