author: WIDENER, Circuit Judge:

text:
    The TORRINGTON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-2452.
    United States Court of Appeals, Fourth Circuit.
    Argued April 30, 1974.
    Decided Nov. 18, 1974.

      Fred W. Elarbee, Jr., Atlanta, Ga. (Robert L. Thompson and Elarbee & Clark, Atlanta, Ga., on brief), for petitioner.
    Laura Ross Blumenfeld, Atty., National Labor Relations Board (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Michael S. Winer, Atty., National Labor Relations Board, on brief), for respondent.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This petition for review and cross-application for enforcement of a National Labor Relations Board (Board) order is brought pursuant to §§ 10(e) and (f) of the National Labor Relations Act (Act), 29 U.S.C. § 160(e) and (f). Torrington Company (Company) was found by the Board to have violated § 8(a)(1) of the Act by its anti-union coercion of employees, and § 8(a)(3) by unlawfully discharging employee Charles Crumley for union activity. We believe substantial evidence supports the finding of anti-union coercion but, because the uneontradicted evidence supports the Company’s contention that Crumley’s discharge was due to economic reasons, we decline to enforce that portion of the Board’s order.

The record shows that employee Crumley had worked for the Company, which manufactured bearing products, on two different occasions between 1966 and 1971, for a total of over two years, and on both occasions had left his employment voluntarily. Crumley again applied for a job in mid-August, 1971 and was told by their Quality Control Manager (General Foreman as of October, 1971), Art Nord, who had been Crumley’s supervisor on both previous occasions when he worked for the Company, that the Company was tentatively planning to lauch an experimental program to reduce the cost of scrap materials. Nord advised Crumley that, if he was interested in the new experimental program, Nord would let him know something in a few days. Shortly thereafter, Nord instructed plant Personnel Director Mobley Jeter to contact Crumley for rehire, which was done. Crumley reported to work about August 23 and was interviewed by Jeter, as was customary for newly-hired employees. Jeter told Crumley that the plant was non-union, that he had information that Crumley was involved in the 1969 union campaign, and that the union was not good for Union County or the plant, and they hoped Crumley would not be involved in the future. Jeter further testified that he normally reads a statement on unionism to newly-hired employees, but told Crumley that he did not think it necessary to read it in its entirety since Crumley had worked there before.

Crumley was assigned as a probationary employee to the inspection department, which was supervised by Nord. He and Stanley Moody, an employee of some years’ standing who was transferred from another department to work with Crumley in the experiment to reduce scrap costs, were assigned as floor inspectors in the Acme Screw Machine Department (company Department No. 14). Crumley and Moody were to work the two night shifts in Department 14, which had not previously been manned with floor inspectors. Department 14 had consistently been one of the biggest problem areas in the company insofar as scrap expense was concerned.

Crumley became actively involved in the union campaign which was underway when he began work. On one occasion, shortly after he began work, Crumley was talking to another employee, Heatherly, about what happened during the previous union campaign in 1969. A long-time friend of both parties, Bryce Castle, who had just been promoted to assistant foreman on that same day, walked by the two as they were talking. Crumley remembered that Castle had been one of the more outspoken of the union adherents during the prior campaign and apparently sought to ask him what had happened to the union in the other campaign. Castle responded to Crumley’s question by saying that his job would require him to report Crumley if he found that Crumley was trying to help the union. Crumley freely testified Castle told him: “I can’t be talking about the union. If I got caught talking to you about the union, I might lose my job.” Castle’s testimony was to the effect that his remarks were made jokingly, although both Crumley and Heatherly stated that the remarks were made in a “matter of fact” fashion. In any event, Crumley testified that he did not think Castle would report his talking about the union, and neither Crumley nor Castle made any reference to Crumley’s pro-union activities during the present or past campaigns. The Board found this conversation was not an unfair labor practice.

During the first few weeks after Crumley and Moody began their new jobs, the daily scrap tickets maintained by the Company indicated that not only was there no reduction in scrap from Department 14, but if the trend continued, the month of September would have been the high for the year of 1971 to date. Around September 10, Nord called Crumley into his office, where the two of them discussed the scrap report and what the Company was endeavoring to do to reduce the increasing trend of scrap material, “ . . . the scrap material and the costs, the amount of costs from the scrap.” Crumley admitted having this interview with Nord and Nord’s telling him that the reason he had been hired was to reduce scrap.

About a week after Nord’s conversation with Crumley on September 16, Nord met with plant Superintendent Donald Klinger to discuss the rising trend in scrap, and they mutually agreed that the experiment of placing floor inspectors on the night shifts had not worked. Both men further agreed that the experimental program should be terminated immediately. Nord then advised Personnel Director Jeter that Crumley was to be taken off the job, and Moody, who was not a probationary employee, was asked to report to a different shift. Probationary employees are those who are in training for the particular job they are hired for, and have no recall rights. Thus, since Moody had job seniority in his old job, he was transferred back, while Crumley, the job he was hired for having been discontinued, was terminated. Both Klinger and Nord stated they knew nothing of Crumley’s union activities at that time.

That afternoon, Nord called Crumley into Mobley Jeter’s office, whereupon Jeter informed Crumley that his job “had not panned out,” and that the experiment had proved wrong. Crumley was then terminated after Jeter’s exit interview.

The Board relies heavily on an incident that occurred the day before Crumley’s discharge, in finding union activity as a cause for the discharge. Crumley was engaged in conversation with another employee, while at work, when Crumley remarked that the particular problem they were discussing would be straightened out once the union comes in. Immediately following the remark, the two noticed that a supervisor named Nicholson (who was not one of Crumley’s supervisors) was standing closeby. Nicholson apparently made no indication of having heard the conversation, and in fact denied having overheard it. He stated there was considerable noise from machinery in operation in the work area. Crumley testified that Nicholson was “within reaching distance” when he first saw him.

Crumley also stated that Nicholson was in Personnel Director Jeter’s office the next day when he was discharged and that Nicholson left when Crumley walked in. Nicholson denied being in Jeter’s office that day.

Other evidence pertaining to the exit interview indicates that Jeter told Crumley of the company’s unwritten policy of not rehiring someone again after that person has worked for the company on three different occasions. Since this was Crumley’s third severance of employment, Jeter indicated on the exit interview form that he would not be for rehiring Crumley.

Crumley returned to the Company in January, 1972 because he heard that the job he was on had been reopened. He discussed the situation with Jeter, and told Jeter that he felt like he’d been fired because of his union activities. Jeter told him that he would arrange an interview with Mr. Cook, the plant manager, and the interview was set for two days later. Cook and Crumley had never met prior to this interview, and Cook was not plant manager and did not work at that plant at the time Crumley was terminated. Crumley repeated his feeling that he was fired for union activity, and Cook told him that he had been let go because of the elimination of his job, but he would thoroughly investigate the matter to see if there was any substance to that charge. Cook also told Crumley that the three times and out rule was not mandatory but was for him to decide in each case. Crumley was told by Cook that if he submitted an application for employment, Cook would see if he couldn’t employ Crumley in some other department of the plant. Crumley inexplicably refused to fill out a new application, telling Cook that he had only filled in one application but had worked for the Company on three previous occasions. Crumley then stated that Cook told him he was doing himself “a great injustice by not filling one out.” Crumley therefore was not considered for further employment. Cook testified that he did subsequently investigate Crumley’s allegation of being fired for union activities, and found, as he told Crumley during the interview, that Crumley’s dismissal occurred only because his experimental job did not work out.

The record further shows that no one worked as a floor inspector on second or third shift in Department 14 either before or since the experiment involving Crumley and Moody. One floor inspector, Heatherly, worked first shift in Department 14 throughout the entire period of time involved here. There were three inspectors hired between the time Crumley was terminated, in September, 1971 and January, 1972; two of the newly-hired inspectors worked as spherical inspectors and one as a roving inspector. The difference between floor inspectors and spherical inspectors is that floor inspectors are generally responsible for checking the first part produced by a machine when it is placed into operation on any given day (called “first article” inspection), while spherical inspectors make final inspections of all parts produced; the record does not indicate what a roving inspector does. Ferguson, one of the newly-hired spherical inspectors, does spend approximately 25% of his time doing first article inspection, which was formerly done by Crumley as a part of his job, but the bulk of floor inspection in Department 14 was done by Heatherly. The record also indicates that James White became foreman of the Inspection Department, assuming duties as to that department formerly done by Nord, in October, 1971; and the new inspectors were hired by White. White testified that he knew Crumley, had heard rumors that he might be interested in the new jobs that came up after his termination, but did not consider hiring Crumley because the new openings for spherical inspectors and the one roving inspector were lower paying jobs than the floor inspector’s job, and Crumley had not seen him to indicate he wanted a job.

On these general facts, the Board found that Crumley’s discharge was in substantial part motivated by his union activity. The Administrative Law Judge discounted the Company’s production machining scrap summary for 1971, which showed a substantial increase in scrap costs from September over August in Department 14 ($1,881 in September as opposed to $1,412 in August), apparently because the total figures for September were not available when Crumley was discharged. He was not impressed by Plant Superintendent Klinger’s testimony that the daily scrap tickets were relied on in reaching his conclusion that the experiment was not working, because the daily tickets were not introduced into evidence.

The Administrative Judge found two factors of paramount importance in his analysis: (1) the timing and abruptness of the discharge and (2) the hiring of inexperienced people after the discharge. The judge pointed out, as the Company freely admits, that Crumley was a capable employee, and found wonder in the assertion that the Company would discharge such an employee without warning and through no fault of his own. The judge felt this was especially doubtful in light of the fact that a Company supervisor, Nicholson, overheard Crumley make a pro-union statement to a fellow employee on the day before he was terminated. He found equally implausible the subsequent hiring of three untrained individuals for the inspection department when the company knew that Crumley, an experienced, competent person, was interested in being rehired.

Crumley’s refusal to file another application following his January, 1972 interview with Plant Manager Cook, the judge found to be of no relevance since the discriminatory discharge had already taken place. He concluded by stating that while he did not disbelieve the Company’s evidence with respect to the experimental jobs, he did believe that Crumley’s union activity played a substantial part in bringing about his termination. The Company was ordered to reinstate Crumley with back pay.

The Administrative Law Judge issued a supplemental decision some nine months later when it was discovered that the part of the transcript containing supervisor Nicholson’s testimony had been inadvertently omitted by the court reporter when he initially delivered the transcript to the judge and the parties. He made an additional finding of fact, stating he disbelieved Nicholson’s testimony that he did not hear the pro-union conversation between Crumley and another employee because: “It seems to me that anyone standing within touching distance of two people talking has to be able to hear what is said as well as the two principals can.”

Generally, of course, an employer may dismiss an employee for good cause, no cause, or for any reason he chooses except the employee’s union activity. See NLRB v. M & B Headwear Co., 349 F.2d 170, 173 (4th Cir. 1965). Business reasons may not be used as a pretext to get rid of active union employees, e. g., NLRB v. Overnite Transportation Co., 308 F.2d 284, 288 (4th Cir. 1962), and if an anti-union motive, or a desire to stifle protected activity, is a factor in the employer’s decision, the discharge is discriminatory. Winchester Spinning Corp. v. NLRB, 402 F.2d 299, 304 (4th Cir. 1968). But we have stated in NLRB v. Hanes Hoisery Division, 413 F.2d 457, 458 (4th Cir. 1969), “ [undoubtedly, the fact that a worker takes part in protected activity does not insulate him from discharge for legitimate business reasons.”

In determining employer motivation for an alleged unlawful discharge, all the circumstances of each case must be weighed; this is the function of the Board, and conflicts in testimony, or inferences to be drawn therefrom, must be resolved in the Board’s favor. J. P. Stevens & Co. v. NLRB, 406 F.2d 1017, 1020 (4th Cir. 1968); Filler Products, Inc. v. NLRB, 376 F.2d 369, 378 (4th Cir. 1967). This court has held, however, that an inference of discrimination resulting from mere participation in union organization and activity, followed by a discharge, disappears when a reasonable explanation is presented to show that the discharge was not for union membership. NLRB v. United Brass Works, Inc., 287 F.2d 689, 693 (4th Cir. 1961).

The crux of the matter is that the Board, after discounting all explanations offered by an employer for a discharge of employees, must find unlawful motivation through substantial direct or indirect evidence. Substantial evidence means “evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Dubin-Haskell Lining Corp. v. NLRB, 375 F.2d 568, 573 (4th Cir. 1967); Riggs Distler & Co. v. NLRB, 327 F.2d 575, 580 (4th Cir. 1963); Appalachian Electric Power Co. v. NLRB, 93 F.2d 985, 989 (4th Cir. 1938).

The uncontradicted facts in this case show that the Company had a legitimate business reason for discharging Crumley. Indeed, this is found by the Board. Crumley was hired on an experimental basis as a probationary employee. He was told that the experimental program, involving placing floor inspectors on shifts not theretofore manned, had as its aim the reduction of scrap costs in one of the most troublesome Company departments. Daily scrap reports showed that not only did the scrap problem not improve, it got worse, and this in addition to the increased labor costs due to the two new inspectors in the department. The Quality Control Manager, Nord, who hired Crumley, was sufficiently concerned about the increase in scrap expense that he had a conference with Crumley to discuss the problem. One week later, and a little more than three weeks after Crumley started work, Plant Superintendent Klinger and Nord mutually agreed that the experiment had not worked and should be immediately abandoned. Crumley, because he was a probationary employee, was terminated that same afternoon, and the other floor inspector involved in the experiment, Moody, was transferred back to his old job. No floor inspectors were hired, and the jobs done by Crumley and Moody remained vacant, except for part-time coverage by inspectors from other departments, during the four month period after Crumley’s discharge and before he returned to the company to seek another job. The record shows that scrap expense from Department 14 was $1,881 for September, 1971 as opposed to $1,412 for August, and that the September total, in fact, was the third highest monthly total for scrap expense from that department during the year of 1971. These uncontroverted facts show clearly that, whatever inference the Board drew or might have drawn from the evidence, Crumley would have been discharged whether there was a union campaign or not.

We find no acceptable basis for the Board’s discredit of the uncontradicted testimony of Company officers that the daily scrap tickets showed a substantial increase in scrap costs. The yearly scrap report was in evidence which supports their testimony, and it is obvious that some form of daily tally must be kept, if for no other reason than to compile the monthly and yearly reports. Sworn testimony cannot be arbitrarily disregarded on the mere suspicion or assumption that Nord and Klinger were lying. NLRB v. Atlanta Coca-Cola Bottling Co., 293 F.2d 300, 306 (5th Cir. 1961); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 484 and n. 17, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Likewise untenable was the Board’s analysis that the abruptness of the discharge and subsequent hiring of inexperienced people indicated anti-union bias against Crumley. Of course any discharge during a union campaign could be said to be ill-timed because suspicions on both sides are then at their peak. But here, Crumley was admittedly hired only for the purpose of trying an experimental job; he was told a week before the decision was made to discharge him that the scrap trend had worsened, and the evidence shows beyond doubt that the experiment was a failure. The Company, as was its practice with probationary employees, then dismissed Crumley because the job he was hired for no longer existed. We see nothing abrupt in this sequence of events.

The hiring of inexperienced people has no relevance here. No one was hired to do the job formerly done by Crumley; there were no recall rights existing within the Company when a layoff occurs because of elimination of the employee’s job; Crumley did not reapply for a job until after the new employees were hired, and, in any event, the Company’s general policy of hiring no individual on more than three separate occasions would make it more doubtful that he would be hired for a fourth time. Even so, Crumley was offered an opportunity to submit a new employment application in January, 1972, and he refused. If Crumley had truly been interested in being rehired, it would seem that he would have made application before four months had elapsed after his discharge. Also, once Crumley decided to reapply and Plant Manager Cook told him that he would be considered for a job despite the “three times and out” rule, Crumley’s refusal to fill out a new application is inexplicable in almost any context except that the Company was acting in good faith.

Added to this, or of even greater importance, is the finding of fact of the Administrative Law Judge as to the knowledge of the Company of Crumley’s union activities. Such is required to sustain the holding of the Board. NLRB v. Lexington Chair Co., 361 F.2d 283, 291 (4th Cir. 1966). The original opinion relied almost solely on the conversation (revealing his union activity) Crumley had with Louis Jeter and during which Nicholson, a foreman, was nearby. Only Crumley and Jeter testified to the conversation with inconsequential differences. The opinion then must be based on such testimony which it describes as it finds: “Nicholson did not testify.” Nicholson had in fact testified, and had denied that he had overheard the conversation. The transcript of Nicholson’s testimony which was not with that part of the transcript initially filed had inadvertently not been brought to the attention of the Administrative Law Judge. Upon the discovery of this error, the Board remanded for reconsideration in the light of Nicholson’s testimony, with leave to reopen the record to take additional evidence. The record was not reopened, however, and after review of the written transcript, the Administrative Law Judge, who apparently still did not remember Nicholson testifying, recited: “In my [original] decision I found that Crumley, on the basis of his undenied and credited testimony, had been overheard by his foreman, Jack Nicholson, talking in favor of a union to a fellow employee.” The opinion then goes on to discredit Nicholson by inferring that Nicholson overheard the conversation because “It seems to me that anyone standing within touching distance of two people talking has to be able to hear what is said as well as the two principals can.” And this finding was made despite the uncontradicted and unexplained evidence that it was noisy, a machine shop being thirty feet to the rear; a threshing machine with a 50 horsepower motor being there; a turret lathe running just behind him; and a machine operating on compressed air being in the area. Also, the finding was made without reopening the record and without even a recital of any recollection of Nicholson testifying. Had the supplemental opinion had its finding on the credibility of witnesses, it may be that we would be required to accept it, although the evidence is essentially negative; see Jones v. Chesapeake and Ohio Ry. Co., 371 F.2d 545 (4th Cir. 1966); II Wigmore on Evidence, Third Ed., § 664; but since the ultimate fact (knowledge) is based on an inference which is based on a supposition (“it seems to me”), we are of opinion that even the most liberal construction of the substantial evidence rule should not allow a critical fact to be so proved.

In sum, we hold that there is not substantial evidence to support the Board’s finding of a discriminatory discharge. A finding of discrimination may not reasonably be inferred, for this record, at the very least, gives equal support to inconsistent inferences. Dubin-Haskell Lining Corp., supra, 375 F.2d at 573.

We do think, however, that substantial evidence supports the Board’s finding of coercive employee interrogation in violation of § 8(a)(1) of the Act. The record shows that three different Company officers had, at different times during the campaign, called employees into their respective offices to discuss the union. The conversations, in some instances, did involve rather extensive questioning of the employees concerning their union attitudes, activities, and support. Of course, the employer is entitled to take part in free and frank discussions over unionization, but not where such discussions take the form of interrogations which have a tendency to inhibit the free exercise of rights protected by the Act. As we have noted, employer interrogation is generally a dangerous practice, not helped in this case by the fact that supervisors’ offices were frequently used to conduct it. See Winchester Spinning Corp. v. NLRB, 402 F.2d 299, 302-303 and n.1 (4th Cir. 1968).

Accordingly, the Board’s order is

Enforced in part and denied in part.


source: Caselaw Access Project

author: JAMES M. CARTER, Circuit Judge:

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KAISER STEEL CORPORATION and Laborers’ International Union of North America, Local No. 1184, Respondents.
    No. 73-3034.
    United States Court of Appeals, Ninth Circuit.
    Nov. 26, 1974.
    Peter Carre, Gen. Counsel, N.L.R.B., Washington, D. C. (argued), for petitioner.

      William F. Hoefs of Thelen, Marrin, Johnson'& Bridges (argued), San Francisco, Cal., and Ivan J. Potts, Richman & Garrett, Los Angeles, Cal., for respondents.
    Before BROWNING, CARTER and CHOY, Circuit Judges.
   OPINION

JAMES M. CARTER, Circuit Judge:

This case is before the court upon the application of the NLRB pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. The NLRB seeks enforcement of its order against Kaiser Steel Corp. (“the Company”) and the Laborers’ International Union of North America, Local 1184 (“the Union”), requiring the Company and the Union to cease and desist their unfair labor practices culminating in the discharge of Louis 0. Morgan, and to reinstate Morgan with full seniority and privileges, and to make him whole for the time lost due to the discharge. The Board’s Order is reported at 205 NLRB 34.

The Company and the Union contend that Morgan was validly discharged for failure to pay a second initiation fee claimed to be “uniformly required” within the meaning of §§ 8(a)(3) and 8(b)(3) of the NLRA, 29 U.S.C.A. § 158(a)(3) and (b)(3), upon transferring from one union to another. We enforce the Order.

FACTS

Louis O. Morgan was first employed as a Laborer at Kaiser’s (the Company’s) Eagle Mountain mining operations camp in February, 1960. He paid an initiation fee on joining the Laborers’ Union. In 1964, he was promoted to the job of heavy duty truck driver and, because he thought he had to do so, voluntarily paid the initiation fee of $87.00 and monthly dues to the Teamsters’ Union upon beginning his new job. He allowed his membership in the Laborers’ Union to lapse, because he “did not think [he] would work for the Laborers as a laborer any more.” He could have taken a withdrawal card’ from the Laborers’ Union, by means of which he could resume full membership by simply paying his monthly dues (without payment of another initiation fee), but he chose instead to allow his membership to lapse altogether.

In December, 1971, the Company announced a temporary shutdown for four to six weeks, beginning in January, 1972. Under the terms of the Collective Bargaining Agreement (see infra), Morgan retained seniority rights acquired during his employment at the same facility as a Laborer. To avoid being laid off, Morgan exercised his seniority and “bumped” from his truck driver job back to his former Laborer job. Under the supplemental seniority agreement to the contract, a senior employee in the Laborers classification could progress to higher paying jobs in other crafts within the bargaining unit, while retaining seniority in the lower job classification. In the event of a layoff, he could use his seniority to “bump back” to his former classification. On February 8, 1972, Morgan took a withdrawal card from the Teamsters’ Union because he believed that he would be back to work as a heavy duty truck driver before his initiation fee obligation to the Laborers’ Union became due. His dues were paid to the Teamsters’ Union through the end of February, 1972.

Two or three weeks after assuming his duties as a Laborer, Morgan was told that he would have to join the Laborers’ Union (including payment of a $109 second initiation fee) or be terminated. Morgan attempted first to avoid and then pay the initiation fee. To briefly summarize, Morgan was granted two weeks vacation upon receiving word that his father had died. Upon his return, he offered to pay $10 (as much as he was able to pay) and to “make every effort to pay more each month until I am paid up.” This offer was rejected, and on February 8, 1972, he was told that he must pay the fee by the next day or be terminated. On February 9 and 10, he drove to Indio, Rialto, Riverside, and Indio again in an effort to clarify the situation or pay his fee. On February 10, he was told that he had been terminated by the Company pursuant to a request from the Laborers’ Union, and on the basis of his failure to pay the initiation fee.

The NLRB concluded that in so terminating Morgan the (Laborers’) Union violated § 8(b)(2) and (1)(A) of the NLRA, 29 U.S.C.A. § 158(b)(2) and (1)(A) by causing Morgan’s discharge, and that the Company violated § 8(a)(3) and (1), 29 U.S.C.A. § 158(a)(3) and (1) of the Act by implementing that discharge for nonpayment of a second initiation fee upon transfer from one job to another within the certified bargaining unit. The Board also found that the threatened discharge on the same basis was in itself a violation of the Act. The Board’s Order required the Union and the Company to cease and desist from the unfair labor practices found, to reinstate Morgan with back pay and without prejudice to his seniority or other rights and privileges, and to post appropriate notices.

The National Labor Relations Act contains a general prohibition against job discrimination “to encourage or discourage membership in any labor organization.” § 8(a)(3) and (b)(3) of the Act, 29 U.S.C.A. § 158.

There is a limited exception in the section permitting “union security” agreement between employers and unions, but the section contains a number of restrictions as to the exception. The one we consider here precludes the discharge of an employee under a union security agreement where membership (and employment) was denied him for reasons other than his failure to tender “the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” (Emphasis supplied).

Here, the production and maintenance employees of Kaiser at the Eagle Mountain foundry were represented in a eertified, single comprehensive bargaining unit. Five unions were included, of which the Teamsters and the Laborers are involved in the present case.

The Council, comprised of representatives of the five unions, is the certified representative for the comprehensive bargaining unit. The collective bargaining unit agreement provides for “membership” in the Council’s constituent local unions rather than the Council itself. The agreement also permits job transfers across union jurisdictional lines and provides for progressing to a higher paying job classification and for “bumping” back to a lower classification to avoid a layoff. There is nothing in the agreement indicating that transfers within the bargaining unit require additional union initiation fees.

DISCUSSION

The phrase “periodic dues and the initiation fees uniformly required” must be applied to a number of differing factual situations.

(1) A single, lump sum initiation fee required from employees entering the bargaining unit presents no problem and readily falls within the term “uniformly required.”

(2) Transfers between unions where the unions are not part of the same collective bargaining unit constitute another category.

(3) Upon a transfer into a higher paying classification, Aluminum Workers Trade Council, 185 NLRB 69, 70 (1970) required the employee to pay the difference between the initiation fee for the new, higher paid classification and the initiation fee previously charged for the lower classification. It did not require the employee to pay an entirely new initiation fee. The Board justified the result as being reasonable and within the ability of the employee to pay.

(4) The Board has upheld the reasonableness of a classification which imposed no initiation fee for a recently discharged veteran, but a $30 initiation fee for other new members. Food Machinery and Chemical Corporation, 99 NLRB 1430 (1952).

(5) The Board has found unjustifiable, and in the nature of a fine, a fifty cent per month addition to dues for nonattendance at union meetings. Electric Auto-Lite Company, 92 NLRB 1073 (1950), enforced, NLRB v. Electric Auto-Lite Company, 196 F.2d 500 (6 Cir. 1952).

(6) Another category involves reinstatement fees where a member has left the union and some time later seeks to rejoin. The initiation fee may be larger than the original fee. NLRB v. Fishermen & Allied Workers’ Union, 448 F.2d 255, 257 (9 Cir. 1971). But a fee larger than the original initiation fee may not be charged when the difference in amount represents back dues not properly owing or a penalty for nonpayment of such dues. Fishermen, supra, at 257.

In the present case the transfer of Morgan from the Teamsters’ Union to the Laborers’ Union pursuant to his “bumping” privilege, was to a lower paying classification, a decline in wages from $4.595 to $3.67 per hour. A reasonable ability to pay factor such as presented in Aluminum Workers, supra, would not be involved.

The transfer within the bargaining unit was specifically sanctioned by the collective bargaining unit. The Union was in effect imposing a charge on exercising the contractual right to “bump back,” which went beyond the fees and dues required to support Union representation.

Fees designed to discourage intra-unit transfers are not part of the regular structure of dues and fees which can be compelled as a condition of employment. They smack of the “improper penalties” disapproved in Fishermen, supra.

Nor can the new initiation fee here be considered a reinstatement fee. The Laborers’ Union demand for an “initiation fee” clearly indicated it was treating Morgan as a new employee seeking admission to the Union rather than a returning employee. The fee cannot be justified as a re-instatement fee for a former employee coming back into the represented unit. See Food Machinery and Chemical Corp., 99 NLRB 1430, 1431-32 (1952); IAM, Precision Lodge #1600 (Adel Precision Products) 120 NLRB 1223, 1225-27 (1953).

The Board in the present case held that when the Laborers’ Union had allied itself with the Council in a unitary bargaining setup, it could not treat employees transferring from other unions within the bargaining unit as outsiders for the purpose of exacting another initiation fee.

The Board concluded that such “repetitive initiation fees assessed during the course of continuous employment only upon those employees who work in more than one job classification within the [bargaining] unit, and not assessed upon others who work in but one classification, seem clearly to violate both the letter and the spirit of the proviso’s uniformity requirement.”

This area of labor law involves “equitable principles and standards” which are within the Board’s “specialized competency and knowledge.” NLRB v. Technicolor Motion Picture Corp., 248 F.2d 348, 358 (9 Cir. 1957). In this present case we think we should yield to the Board’s competency.

We conclude that as to initiation fees imposed by unions, there are various recurring categories, each with differing facts. Each of the categories is intrinsically different. The Board should apply its rule reasonably and uniformly to each category. There is no showing that it has not done so here.

The Order will be enforced.

      . 29 U.S.C. § 158(a) and (b), § 8(a) and (b) of the Act to read in part:
      “§ 158. Unfair labor practices
      (a) It shall be an unfair labor practice for an employer—
      * * * * *
      (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : Provided, That nothing in this sub-chapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a), of this title, in the appropriate collective-bargaining unit covered by such agreement when made . ... Provided further, That no employer shall justify any discrimination against an employee for non-membership in a labor organization . . . (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
      :i¡ * * :¡: *
      (b) 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 . . . ;
      (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization lias been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership . . . .” (Einphasis added).

      . The union security clause in our case appears in Art. 3 of the Collective Bargaining Agreement between the Council and the Company. It reads as follows:
      “All employees covered by the Agreement shall within thirty-one (31) days after employment . . . become members of
      the appropriate Craft Union and shall remain members of said Craft Union as a condition of employment. . . .”

      . Morgan voluntarily paid the entire new initiation fee on moving up to the Teamster job. He was not compelled to and under Aluminum Workers, supra, probably would not have been required by the Board to do so.


author: HASTINGS, Senior Circuit Judge.

text:
    James CULOTTA, Petitioner-Appellant, v. Warden PICKETT, Respondent-Appellee.
    No. 74-1360.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 8, 1974.
    Decided Dec. 5, 1974.
    Roy Eugene Clark, Mt. Vernon, 111., for petitioner-appellant.

      Henry A. Schwarz, U. S. Atty., William C. Evers, III, Asst. U. S. Atty., E. St. Louis, 111., for respondent-appellee.
    Before MARIS and HASTINGS, Senior Circuit Judges, and TONE, Circuit Judge.

       Senior United States Circuit Judge Albert B. Maris of the United States Court of Appeals for the Third Circuit is sitting by designation.

   HASTINGS, Senior Circuit Judge.

Petitioner James Culotta is presently confined in the United States Penitentiary, Marion, Illinois, serving a federal sentence following his conviction for a violation of Title 18, U.S.C. § 472, on a charge relating to counterfeiting. He filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Illinois, the Honorable James L. Foreman, Judge, presiding, claiming that he has been denied credit on his federal sentence for certain specified jail time served in the custody of the State of New York. It is asserted that the question presented under the facts of this case is one of first impression in this circuit. Other circuits have determined related cases in this area, but not the Supreme Court.

The matter was heard in the district court on a stipulation of facts. Petitioner was represented at this hearing, and now on appeal, by able court-appointed counsel. The court below filed a well-considered memorandum order and denied the habeas petition. This appeal followed.

This case involves the interpretation of Title 18, U.S.C. § 3568, which was last amended June 22, 1966, Pub.L. 89-465, § 4, 80 Stat. 214, and reads in relevant part:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

We are here concerned with the meaning to be ascribed to the words “for any days spent in custody in connection with the offense or acts for which sentence was imposed.”

On July 23, 1966, petitioner was arrested by the New York state police for violation of the New York Penal Code McKinney’s Consol.Laws, c. 40, §§ 887 and 1751, on charges relating to the use of counterfeit federal notes and possession of narcotics. At that time petitioner was on parole from a New York sentence which did not relate to counterfeiting and is believed to have been for armed robbery.

On July 25, 1966, a federal warrant of arrest was filed against petitioner charging violations of 18 U.S.C. § 472 (the same acts of counterfeiting involved in the above New York arrest), as a detainer.

Parole revocation proceedings were instituted against petitioner by the State of New York and on November 15, 1966, he was transferred from a county jail to a state prison and was released to the custody of the State of New York at that time. Petitioner's parole was revoked by the State of New York on January 18, 1967. Petitioner was never prosecuted by New York on the state counterfeiting or narcotics charges filed there.

Petitioner’s present federal sentence was imposed on October 26, 1967, and filed as a detainer with the State of New York. Subsequently, petitioner was convicted of escape and sentenced to 120 days to run consecutively with his previous sentence.

Petitioner was released to federal custody by the State of New York on July 22, 1968. He was given credit on his federal sentence for the period of state jail time beginning July 23, 1966 (the date of his New York arrest while on parole), and ending November 15, 1966 (the date of his transfer from the New York county jail to New York state prison confinement).

Petitioner’s present mandatory release date, as calculated by the Federal Bureau of Prisons, is on or about September 8, 1976.

The disputed period of time for which petitioner claims he is entitled to credit on his present federal sentence begins with November 16, 1966, and ends on October 25, 1967, the time period when he was in the exclusive custody of the State of New York until he received his present federal sentence. All days spent in New York custody, beginning on October 26, 1967, have been credited to his federal sentence, in addition to the prior credit given for the period from July 23, 1966 to November 15, 1966.

The issue is whether, pursuant to 18 U.S.C. § 3568 a federal prisoner is entitled to credit toward his federal sentence for time served in state custody for parole violation, where no other intervening state conviction resulted, but where his parole was revoked following the filing of a federal arrest warrant against him as a detainer, where the same acts both constituted a violation of federal law and served as a basis for his state parole revocation.

Judge Foreman aptly refers to relevant legislative history leading to the 1966 amendment of Section 3568, supra, which reads:

Section 4 of the bill amends section 3568 of title 18 of the United States Code in order to provide credit for time spent in custody. Such a person shall receive credit toward service of a sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. This credit shall be given by the Attorney General. This language requires that credit be given for the time spent in custody in connection with the charge or acts on which the person was arrested or on which he was sentenced. This will cover the situation where a person is arrested on a serious charge but convicted and sentenced later for a lesser offense. It would also include credit for time spent in State custody on a charge which subsequently evolves as a federal offense. (Emphasis added.) H.R.Rep.No.1541, 1966 U.S.Code Cong. & Admin.News at p. 2306.

Since the disputed period of time while petitioner was in state custody arose out of the same acts which both constituted a violation of federal law and served as a basis for his state parole revocation, petitioner contends that he is entitled to this credit because it was “spent in custody in connection with the offense or acts for which [his federal] sentence was imposed.” Section 3568, supra.

Respondent Warden Pickett points out that during this disputed period petitioner was in the exclusive custody of New York and that a parolee in New York may not be released on bail pending his parole revocation hearing. People ex rel. Angell v. Lynch, 337 N.Y.S.2d 556, 71 Misc.2d 921 (1972).

Here, it becomes readily apparent that petitioner was held in exclusive state custody from the time he was released from the jail to the state prison (November 16, 1966) to the date of the imposition of his federal sentence (October 25, 1967). This period of time was solely in connection with his state parole violation and was entirely independent of his federal prosecution or sentence.

A number of circuits have determined cases in this particular area adversely to the contentions asserted by petitioner here. At the outset, of course, is the principle of law that there is no federal constitutional right to credit for time served prior to sentence. Gremillion v. Henderson, 5 Cir., 425 F.2d 1293, 1294 (1970). The instant appeal is controlled by the provisions of Section 3568, supra.

Chaplin v. United States, 5 Cir., 451 F.2d 179 (1971), was a case closely akin to the pending matter. There a petitioner was arrested on federal charges while on parole by state authorities, and while free on bond with respect to the federal charges was arrested by state authorities for parole violation. During some 21 months thereafter petitioner was exclusively in state custody for parole violations except when appearing in federal court by habeas corpus ad prosequendum. The federal detainer had no effect on his state confinement since he could not have made bail on the state charges. It was held that he was not entitled to credit on his federal prison sentence for the time spent in state custody, even though his federal arrest was, in part, the cause of his state parole violation.

The Eighth Circuit appears to have followed the Fifth Circuit in Shields v. Daggett, 8 Cir., 460 F.2d 1060 (1972); United States ex rel. Derengowski v. United States Attorney General, 8 Cir., 457 F.2d 812 (1972); and Doss v. United States, 8 Cir., 449 F.2d 1274 (1971). See also Bruss v. Harris, 10 Cir., 479 F.2d 392 (1973); United States v. McCrocklin, 6 Cir., 410 F.2d 1137 (1969). Cf. United States v. Eidum, 9 Cir., 474 F.2d 579 (1973).

Of interest is the case of Siegel v. United States, 2 Cir., 436 F.2d 92, 95 (1970). A New York state prisoner, while serving a state sentence imposed under New York law, was taken to a federal house of detention by agreement with New York authorities and was then returned to state custody following his sentencing in federal district court. He was given credit on his state sentence for the time spent during his federal detention. However, he claimed a similar credit therefor on his federal sentence. The Second Circuit affirmed a denial of this double credit. Mr. Justice Clark, Retired, speaking for the court, rejected the claim that double credit was required by Section 3568, supra, as an absurdity. He said, inter alia: “Section 3568 merely allows credit for all of the time that a prisoner is deprived of while held in custody in connection with the ‘offenses or acts’ on which he was sentenced. Appellant was being held on his state sentence — not his federal one — and was made available to federal authorities purely as a matter of comity.” 436 F.2d at 95.

In light of the foregoing authorities and the memorandum decision of the court below, we are persuaded that a fair reading of Section 3568, supra, compels the conclusion that the days petitioner was held in exclusive state custody from the time he was released to the state prison (November 16, 1966) to the date of the imposition of his federal sentence (October 25, 1967), under the facts of this case, was time spent solely in connection with his state parole violation. Such time spent cannot be said to have been for “days spent in custody in connection with the offense or acts for which [his federal] sentence was imposed.” See also references to Section 3568, supra, in Anglin v. Johnson, 7 Cir., 504 F.2d 1165, 1167, 1168 and 1169 (1974).

Petitioner has already received credit on his federal sentence for the period from July 23, 1966 to November 15, 1966, and for the period beginning October 26, 1967 and ending July 22, 1968, as hereinabove set out. He is not entitled to the claimed additional credit. We have carefully examined the authorities cited by petitioner in support of his contentions to the contrary and find them to be inapposite.

The judgment of the district court denying petitioner’s petition for a writ of habeas corpus is affirmed.

Affirmed.

      . See also Burnett v. United States Board of Parole, 5 Cir., 491 F.2d 966 (1974); Savage v. Henderson, 5 Cir., 475 F.2d 78 (1973); Boyd v. United States, 5 Cir., 448 F.2d 477 (1971), cert. denied, 405 U.S. 992, 92 S.Ct. 1264, 31 L.Ed.2d 460 (1972); Jackson v. Attorney General, 5 Cir., 447 F.2d 747 (1971). Cf. Davis v. Attorney General, 5 Cir., 425 F.2d 238 (1970).


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COMMONWEALTH FOODS, INC, (WEST END) d/b/a Farm Fresh Supermarkets, Respondent.
    No. 73-2026.
    United States Court of Appeals, Fourth Circuit.
    Argued June 3, 1974.
    Decided Nov. 6, 1974.
    David A. Fleischer, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and William H. DuRoss, III, Atty., N. L. R. B., on brief), for petitioner.
    Richard R. Rock, Arkansas City, Kan., and H. Lee Kanter, Norfolk, Ya. (Rock & Smith, Arkansas City, Kan., Kanter & Kanter, Norfolk, Va„ on brief), for respondent.
    Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This application for enforcement of a National Labor Relations Board (Board) order is brought pursuant to § 10(e) of the National Labor Relations Act (Act), 29 U.S.C. § 160(e). Commonwealth Foods (the Company) was found by the Board to have interfered with and coerced employees at one of its stores in violation of § 8(a)(1) and to have discharged three employees because of union activities in violation of § 8(a)(3) and (1) of the Act. 29 U.S.C. § 158(a)(1) and (3).

The Company tells us in oral argument that it did not contest the § 8(a)(1) violations before the Board. It makes no issue of them in its brief here. In all events, it is apparent that the § 8(a)(1) findings of the Board are supported by substantial evidence, and enforcement of the Board’s order as to them is granted.

The Company makes an issue of the Board’s refusal to grant a motion asking for the particulars of certain conversations. In view of the fact that we have had pointed out to us no prejudice by the refusal and that most of the inquiries are directed to § 8(a)(1) violations which are uncontested here, and also considering our disposition of the § 8(a)(3) charges, we do not find it necessary to pass on this question. Also unnecessary to decide is the Company’s claim that the Board’s decision is based partly on work product.

For the reasons hereafter stated, however, we decline to enforce that part of the Board’s order requiring reinstatement of the three employees, and remand for further proceedings by the Board.

The Company is a small retail grocery chain, having eleven stores and approximately 1,000 employees, with principal offices located in Norfolk, Virginia. Three of the stores are located in Richmond. This dispute arose at one of the Richmond stores (No. 474), which had between 50 and 60 employees at the time.

The Company had a longstanding policy of conducting routine polygraph tests periodically on various employees of its stores. Prospective employees, in their job applications, must agree to submit to these tests as a condition of employment, and the Company additionally has posted and passed out statements to employees regarding its polygraph policy. Since 1969, the Company had utilized the New York security control consultant firm of Lincoln Zonn, Inc. (Zonn) to conduct the polygraph tests. Of employees given the test from September, 1969 through May, 1972, Zonn rated 516 employees as “recommended” and 83 as “not recommended.”

Store No. 474 and another Richmond store were visited by Zonn the same week. The general manager testified, without contradiction, that No. 474 was scheduled because of shortages occurring in September and October. On December 16, 1971, a Zonn polygraph examiner, who treated the visit as routine, arrived at Store 474 and identified himself to the store manager. The examiner testified that he had not been pre-instructed with regard to who was to be examined, nor of any special problem area. He explained to Baber, the store manager, that the normal procedure was to interview the store manager, assistant manager, and employees who handle money. The manager, who had no explicit advance warning of the visit, likewise had not been pre-instructed as to who should be tested, so he chose himself, the assistant store manager, two employees who handled money in the office, three principal cashiers, an employee under consideration for assistant head cashier, one who had had some recent shortages, and one because of a problem from a previous polygraph. These employees were tested on December 16 and 17, 1971. The examiner testified that the polygraph tests were conducted in a normal fashion, and he dictated his confidential report and recommendation immediately after each interview.

The results of the tests, which were mailed from Zonn’s New York office and received by the Company’s general manager, Walters, in his Norfolk office on December 29, 1971, were quite alarming, as nine of the ten employees tested at Store 474 were “not recommended,” the only exception being the store manager. Walters called Zonn and asked him to re-evaluate the tests because he “couldn’t close the store down.” Lincoln Zonn, president of Zonn Company, did the re-evaluation himself on January 1, 1972; he called Walters and told him he had changed some of the recommendations but was not very happy about it because the reports appeared to be accurate. After re-evaluation, four employees remained in the “not recommended” category. The examiner who administered the test was not consulted concerning the re-evaluations but testified that he did not believe any of the employees originally rated “not recommended” should be retained. Of the five employees whose recommendations were changed and were retained, at least two had joined the union.

A few days later, Walters called the store manager and told him to separate two employees immediately, one the next week, and one the week after that. The staggered discharges were done to avoid disruptions and embarrassment, and to allow time for replacements. All four were terminated but one, who Walters ordered kept on advice of counsel after receiving a letter from the organizing union, dated January 24, 1972, advising him that she and six other employees were active in the organizing campaign. The other three were also listed in the letter from the union but had already been discharged when the letter was received.

An issue in this case is whether the Company had knowledge of union activity at Store 474 by the three employees involved here, in order to justify the Board’s inference that their discharge was for protected pro-union activity. NLRB v. Lexington Chair Co., 361 F.2d 283 (4th Cir. 1966).

As to one of the discharged employees, the evidence is ample to sustain knowledge by the Company of her pro-union activities. For example, meetings were held in her home, at least one of which was attended by an employee variously described as a management trainee or assistant manager, who testified he pretended pro-union sentiments in order to gain information about union activity. Evidence that the Company knew of the union activities of the other two is much more slender, but in view of a statement attributed to the manager and denied by him (but credited by the Board), implying that the firings were connected with the union campaign, we are of opinion there is substantial evidence that the Company knew of the union activity of the three employees at the time of their discharges.

Had the employees been discharged for the ordinary reasons, tardiness, infraction of minor rules, etc., then our problem would be at an end, for the rule in such cases is that if the desire to stifle pro-union activity contributes to the discharge, it is discriminatory. NLRB v. Hanes Hosiery Division, Hanes Corp., 413 F.2d 457, 458 (4th Cir. 1969). Reinstatement may be granted.

But, in this case, a different rule obtains. The polygraph examiner took substantial time with each interview, variously described as an hour to an hour and three-quarters. He conducted a detailed oral interview prior to the actual polygraph test. It is true that various employees testified that the examiner suggested to each of them that nearly everyone steals something, however small, from his employer, and suggested upper limits on the amounts taken. But it is not true that the answers were suggested by the examiner. The three employees in question wrote and signed statements in their own hand admitting various thefts from their employer and similar violations of company rules. There is no finding that the thefts by these employees had been known and condoned until the union campaign came along so that the'polygraph test could be considered a mere sham and pretext. Two of the employees had been warned about shortages just prior to the polygraph test. Two of the three employees involved had an indication on the polygraph that they did not tell the truth about the maximum amount taken from the Company, despite having had the maximum amounts fixed by the prior interview ; the third gave a written statement but was not tested on the polygraph because of her age of sixteen.

The employees involved testified. By their testimony they sought to considerably qualify their written statements. The Board did not determine whether the written statements were true or not true, but decided that, since it found the polygraph tests to have been related to the union campaign, the discharges were not justified. The obvious conclusion of the Board was that reinstatement was mandated although the employees involved may have been stealing or engaged in like pilferage as indicated by their statements.

We do not agree with the Board in its conclusion, and instead follow the Fifth Circuit in its opinion in NLRB v. Big Three Welding Equipment Co., 359 F.2d 77 (5th Cir. 1966). In that case, on facts quite similar to the one at hand, there was evidence two employees had been engaged in stealing from their employer. The Board found that the theft was not known by the employer until the hearing, and although it found the employees had been engaged in the theft ordered them reinstated. The court declined to enforce the reinstatement order and decided that national labor policy does not necessarily require the reinstatement of an employee engaged in theft although the record may have substantial evidence from which the Board may have found the discharges due to protected union activity. As here, con-donation of their conduct was not an issue.

The court stated, we agree, and apply the reasoning here:

“ ‘We are not dealing with abstract rights, but with an employment relationship.’ [Footnote reference omitted] Giving full consideration to all of the evidence in the record as a whole we are firmly convinced that the purposes and policies of the Act would not be effectuated by the reinstatement of these two employees with an admitted record of highly objectionable misconduct in a relatively small company where relationships are close and conduct of the type here involved is inevitably known to other employees as well as management. Not only would there be serious tension and ill will between the two employees and management, but, perhaps more important, reinstatement in such circumstances could well be an invitation to continue such misconduct on the part of the reinstated employees as well as others. Such distasteful misconduct is sufficient reason for refusing reinstatement.” 359 F.2d 77, 84. '

Biff Three Welding Equipment Company differs from our case only that in that case there was a finding of fact by the Board that the employees had been engaged in theft. The Board has made no such finding here, and we believe a finding by the Board as to this matter would be more appropriate than a finding by us.

We remand to the Board to inquire into the truth of the written statements made by the three employees. If the statements are essentially true, or understate the truth, then the employees should not be reinstated.

Enforcement granted in part; denied in part; and remanded.


author: TALBOT SMITH, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald RUNNING, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clayton BLUE, Defendant-Appellant.
    Nos. 73-1848 and 73-1858.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Nov. 25, 1974.
    Rehearing Denied Dec. 17,1974.

      Raymond Rosenberg, Des Moines, Iowa, for defendant-appellant, Running.
    James R. McManus, Des Moines, Iowa, for defendant-appellant, Blue.
    Keith E. Uhl, Asst. U. S. Atty., Des Moines, Iowa, for appellee.
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

These appeals arise from the convictions of Donald Running and Clayton Blue, after separate jury trials, of conspiracy to violate the federal banking laws. The prosecutions followed the collapse in February, 1970 of the State Bank of Prairie City, Prairie City, Iowa, a federally insured bank (hereinafter the Bank). A seven count indictment was returned, two of which, Counts 5 and 7, concern us here. Count 5 charges Harry F. Soults, Donald B. Running, Clayton Blue and Robert Oehlert with conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 656 by agreeing to cause the withdrawal of $40,000 from the escrow account of Caravel Productions (held at the Bank) for purposes other than those stated in the escrow agreement. Count 7 charges the same four individuals with a similar offense with respect to $80,000 withdrawn from the escrow account of the Iowa-Minnesota Commodity Fund. Running was tried with Oehlert on 'Count 5 and convicted. (Oehlert was acquitted.) Blue was tried alone on Counts '5 and 7 and convicted. A subsequent trial of Running and Oehlert on Count 7 resulted in an acquittal when the jury was unable to reach a verdict. The charges in Counts 5 and 7 against Soults, the Bank president, were dismissed after he plead guilty to two other counts and testified for the Government.

Running and Blue raise substantially identical claims of error. It is contended as to Count 5 that the competent evidence presented at their separate trials was insufficient to establish the existence or terms of the alleged escrow agreement between the Bank and Caravel Productions. Thus, it is argued, the trial courts should have granted their motions for judgment of acquittal since there could be no “misapplication” of funds within the meaning of 18 U.S.C. § 656 if the.Bank owed no fiduciary duty with respect to the funds deposited to the account of Caravel Productions. This claim is based in large part on the fact that no written escrow agreement exists. The question presented to the juries, then, was (as the court instructed them): “whether the depositors and the [Bank] by their words and actions as shown by the evidence intended to create an escrow agreement for the ‘Caravel Productions Inc. Escrow Acct.’ ”

The records in both cases are voluminous; we have reviewed them in their entirety. After careful consideration of defendants’ claims and of all the evidence, we are satisfied that substantial competent evidence supports the verdicts, and that the trial court did not err in refusing to enter judgments of acquittal. See United States v. Quinn, 467 F.2d 624, 627 (8th Cir. 1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1390, 35 L.Ed.2d 599 (1973); United States v. May, 419 F.2d 553, 555 (8th Cir. 1969). It would unduly burden the reports to detail the complexities of the conspiracy proven; we merely outline the evidence from which the juries properly could have concluded beyond a reasonable doubt that an escrow account existed and that funds therefrom were misapplied.

I. The defendants’ past dealings. Running and Blue were the promoters of a number of enterprises (such as the Iowa-Minnesota Commodity Fund, the subject of 'Count 7) organized along a common pattern involving the deposit of investors’ seed money in escrow until sufficient capital was raised to begin operations (usually $100,000 or $150,-000). If the stated amount was not raised, the escrow agent was obligated to return the investors’ deposits. The Bank was well aware of this pattern.

II. The promotion of Caravel. Caravel Productions, Ltd. was a limited partnership organized by defendants for the purpose of making a motion picture. Investors were induced to subscribe to $10,000 “units” or shares in the enterprise and thereby become limited partners. Part of the Articles of Limited Partnership of Caravel Productions Limited reads:

ARTICLE III
CAPITAL AND PROFITS (LOSSES)
A. CAPITAL OF PARTNERSHIP. THE TOTAL CAPITAL OF THE PARTNERSHIP SHALL BE AS FOLLOWS:
■>:- * * * *
2. FIFTEEN (15) UNITS OF LIMITED PARTNERSHIP INTEREST AT A PER UNIT CASH CONTRIBUTION OF TEN THOUSAND DOLLARS ($10,000.-00), AGGREGATING ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00).
B. ESCROW OF LIMITED PARTNERS CAPITAL. INITIALLY, ALL CAPITAL CONTRIBUTIONS MADE BY LIMITED PARTNERS PURSUANT TO THIS AGREEMENT SHALL BE DEPOSITED IN AN ESCROW ACCOUNT AND HELD BY AN ESCROW AGENT. THE ESCROW AGENT IS NOT TO RELEASE ANY FUNDS UNTIL ALL OF THE DOCUMENTATION AND AGREEMENTS HAVE BEEN COMPLETED AND A COPY OF WHICH IS IN HIS POSSESSION, THEREAFTER THE ESCROW AGENT SHALL RELEASE AND DISBURSE THE FUNDS SO HELD UPON RECEIPT BY HIM OF SATISFACTORY DOCUMENTATION OF EXPENDITURES INCURRED, OR WHICH ARE NECESSARY TO INCUR TO ALLOW THE GENERAL PARTNER TO CARRY OUT THE PURPOSES OF THE PARTNERSHIP, IT BEING THE PURPOSE OF SUCH ESCROW TO ASSURE TO THE EXTENT POSSIBLE, THE EXPENDITURE OF LIMITED PARTNERS’ CAPITAL FOR MOTION PICTURE PRODUCTION ONLY AND NOT FOR PURPOSES UNRELATED TO THOSE FOR WHICH THE- PARTNERSHIP WAS ESTABLISHED.
* * * * * *

Nineteen cheeks drawn by investors (amounting to $134,000) were deposited to Caravel’s account at the Bank. In fifteen of these (amounting to $99,000) the payee was denominated of “Caravel Productions, Inc., Escrow Account,” “Caravel Production Escrow,” or some similar term using the word “escrow.” On file at the Bank at the time of its closing were an unexecuted copy of the document quoted in part above, and copies of the subscription agreements signed by most of the investors whose money was deposited in the Bank.

Treatment of the Caravel account and its funds by the Bank. III.

Caravel’s account was carried on the Bank’s records as an escrow account. In various transactions involving the account it was labeled as such. Seventy thousand dollars ($70,000) from the account were transferred to an escrow account in a California bank. A copy of the California escrow agreement was on file at the Bank showing that the funds would be used only for expenses incurred in the production of a movie. Forty thousand dollars ($40,000), however were proven to have been withdrawn and used for purposes other than making a movie.

IV. Defendants’ statements.

Soults testified that the account was established at the instance of one or both of the defendants who stated it was to be an escrow account from which money would be transferred to California for the purpose of making a film.

We think this summary fairly presents the rather overwhelming evidence that the parties intended to and did create an escrow account at the Bank, the purpose of which was to protect the investors’ funds from being applied for nonmoviemaking purposes. Defendants argue that merely the naming of the fund as an “escrow account” by the depositor or the bank does not make it one. We agree, and the juries were so instructed. But this is not to say that such denomination is not a circumstance which may be taken into account by a jury, since the “use of the word ‘escrow’ by any of the parties indicates more clearly than any other their actual intention.” Defendants also argue that as a matter of law no escrow agreement can exist unless there are at least three parties to it, and that only two were shown here. Defendants’ cited cases do not support this conclusion. There was proof of the underlying agreements between the investors and Caravel that their funds would be deposited in escrow. It was shown, as well, that the conditions of such deposit were communicated to the Bank and that it undertook to honor them. It is clear that the existence of the Bank’s obligation to the investors was sufficiently established. There was, in our judgment, substantial evidence to support defendants’ convictions on Count 6.

With respect to Count 7 (on which Blue alone was convicted) there was no question that an escrow account existed in the name of Iowa-Minnesota Commodity Fund and that $80,000 had been transferred out of the account in violation of the escrow agreement. Seventy-five thousand ($75,000) Dollars of this amount were deposited to the account of another of defendants’ ventures, the Paint Corporation of America (PCA), from which it was immediately disbursed. Three transactions in January and February 1970 were involved, which were accomplished at the Bank by Mr. Soults who simply debited the escrow account and credited the PCA account. He testified that he was directed to perform these transactions once by Running and twice by Blue.

The gist of Blue’s defense was that Soults had performed these transactions without his knowledge or authorization. He testified that it was his understanding that the PCA account would be funded by an indeterminate amount of credit, not to exceed $100,000, extended by the Bank. Soults, however, denied that he had agreed to extend PCA a “line of credit.”

At the third trial (of Running and Oehlert on Count 7) the defense produced a letter from Soults, apparently written to his lawyer after the bank closing. In part it states:

In regards to my dealings with Robert Oehlert, Clayton Blue and Donald Running.
* # -X- * * -X-
They then approached me about a personal loan for each for a project of their own called Paint Corp. of America. I agreed to loan each individual $25,000.00. They said if further funds were needed they would be able to transfer from the various escrow accounts they were establishing.
They needed more funds and requested I transfer funds for them at various times, they in turn gave me signed notes to represent their obligation to the funds. These notes were to be repaid at their request from the sales of francises [sic] of Paint Corp. of America.
They were never able to sell anything to be able to return funds to the escrow accounts.

Confronted with the letter, Soults denied any present memory of having agreed to advance credit for the purpose of funding PCA. He admitted authorship of the letter and acknowledged that his prior testimony could have been mistaken since “According to the letter, I agreed to loan each individual $25,000.’

Defendant Blue moved for a new trial claiming the letter was newly discovered evidence and that as a result thereof Soults had “made a substantial and material change in the testimony which he gave in the trial of this Defendant’s case.” The motion was denied.

We find no error in the court’s ruling. Blue’s motion was addressed to the sound judicial discretion of the trial court whose ruling will not be disturbed except for a clear abuse of that discretion. Batsell v. United States, 403 F.2d 395, 403 (8th Cir. 1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969). Considerations of defendant’s diligence in discovering Soults’ letter aside, it has not been conclusively demonstrated to us that the new evidence “would probably produce an acquittal.” Id. For the letter is corroborative of the essential aspect of the Government’s case, that defendants directed the transfer of funds out of the escrow accounts. Moreover, Soults’ testimony that he had agreed to loan defendants $25,000 each to fund PCA is entirely consistent with the Government’s proof that of approximately $164,000 expended from the account of PCA, $60,000 came from loans to Running and Blue and the rest came from the lowa-Minnesota Commodity Fund escrow account and the Romar Productions escrow account.

Defendant Running also moved for a new trial (on Count 5) based on the discovery of Soults’ letter and his changed testimony. In addition to what we have said above, we find the new material only marginally relevant to the charges against Running in Count 5. Although some of the funds misapplied from the Caravel account were used to pay a debt of PCA, no such funds were transferred to PCA’s account at the Bank. The argument that Shoults should have used the “line of credit” to cover checks drawn on the PCA account thus has no material bearing with respect to Count 5. Running’s motion was properly denied.

The judgments are affirmed.

      . 18 U.S.C. § 371 provides in pertinent part: If two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . 18 U.S.C. § 656 provides in pertinent part: Whoever, being an officer, director, agent or employee of, or connected in any capacity with any * * * insured bank, * * * embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director [or] employee * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both * * *.
      As used in this section, * * * “insured bank” includes any bank, * * * the deposits of which are insured by the Federal Deposit Insurance Corporation.

      . Caravel was also known, as “Carvel.’

      . At Running’s trial several investors confirmed that the substance of these promises had been made orally to them at the time they jmrchased their units.

      . Defendants object that Soults was permitted to testify at both trials that he believed an escrow account had been established. We find no prejudicial error in the admission of such testimony.

      . Citing American Service Co. v. Henderson, 120 F.2d 525, 530 (4th Cir. 1941).

      . Citing Moore Mill & Lumber Co. v. Curry County Bank, 200 Or. 558, 568, 267 P.2d 202, 206 (1954).

      . Lechner v. Halling, 35 Wash.2d 903, 913, 216 P.2d 179, 185 (1950).

      . Defendant Running: “There was no third party to whom the [Bank] owed any duty or any obligation.” Defendant Blue: “There is no proof of any three-party agreement ***.*** If the contract is merely between the depositor and the bank, it could he changed at will without regard to the rights of the third party and a case like that is not a true escrow account.”

      . Notes 11 and 12, infra.

      . Johnson v. Wallden, 342 Ill. 201, 206, 173 N.E. 790, 792 (1930); Gholson v. Thompson, 298 S.W. 318, 320 (Tex.Civ.App.1927).

      . Lechner v. Halling, 35 Wash.2d 903, 913, 216 P.2d 179, 185 (1950).

      . Romar Productions was still another venture of defendants.


author: SPRECHER, Circuit Judge.

text:
    Uldarico LOZANO-GIRON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 74-1260.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 12, 1974.
    Decided Dec. 4, 1974.

      Nathan T. Notkin, Chicago, 111., for petitioner.
    James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., John L. Murphy, Chief, and Mary Jo Grotenrath, Atty., Dept, of Justice, Washington, D. C., for respondent.
    Before CASTLE, Senior Circuit Judge and STEVENS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

The primary isssue is whether a permanent resident alien’s return to the United States from a 27-day trip to Colombia constituted an “entry” within the meaning of section 101(a)(13) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(a)(13).

I

The petitioner is a 31 year old single male alien, a native and citizen of Colombia who was admitted to the United States for permanent residence at Miami, Florida, on October 25, 1963. He lived in the United States continuously since his entry in 1963 except for three visits to see his parents in Colombia: the first in April, 1970, for three months; the second in November, 1971, for three months; and the third from June 30, 1972 to July 27, 1972, when he returned to Miami as a returning resident. His purpose in going to Colombia for the third time was in order to get married, but his girl friend changed her mind and declined to marry him. He had with him on his trip in excess of $2,100 in currency.

The petitioner testified that inasmuch as he could not take Colombian currency out of that country, except for a nominal amount, and inasmuch as Colombian banks would not exchange Colombian currency for United States money, he had asked a friend to send him anyone who would exchange currencies with him. While he was in a dimly lit bar, a man approached him and agreed to take petitioner’s 42,000 Colombian pesos (worth $2,100) plus petitioner’s wrist watch, ring and a radio, in exchange for $2,400 in United States currency. The exchange was made and petitioner placed the $2,400 in a briefcase, which his mother put away in her home.

On July 27, 1972, petitioner took the briefcase with the money on the airplane with him as he departed for Miami, Florida. While on the plane, he decided to have a drink and was about to pay for it with a ten dollar bill from the briefcase when he noticed that it looked “kind of funny.” Becoming nervous he went to the washroom and after satisfying himself that the entire $2,400 was counterfeit, he hid the money in his trouser pocket, shirt pocket and inside his belt. He testified that his intention at that time was to go to the Colombian consul when he reached Miami and seek his advice.

When petitioner reached Miami and went through customs, he was asked by a customs officer to pay a duty on a bottle of liquor. He asked permission to go to an international bank in the terminal in order to exchange his remaining 180 Colombian pesos into dollars. As he was about to leave, another customs officer stopped him, examined him and found the $2,400 in counterfeit money.

Petitioner was arrested and indicted. Upon his plea of guilty he was convicted in the United States District Court for the Southern District of Florida on November 6, 1972 of possessing, with intent to defraud, 204 counterfeit obligations of the United States in violation of 18 U.S.C. § 472. He was sentenced to 18 months’ imprisonment and he served his sentence.

On May 8, 1973, petitioner was served with an order to show cause why he should not be deported from the United States. After holding a hearing where petitioner was represented by counsel of his choice, the Immigration Judge on July 12, 1973, ordered petitioner deported from the United States to Colombia, pursuant to section 241(a)(4) of the Immigration and Nationality Act in that he had been convicted of a crime involving moral turpitude committed within five years after entry and had been sentenced to confinement for a year or more. 8 U.S.C. § 1251(a)(4).

On January 31, 1974, the Board of Immigration Appeals dismissed the petitioner’s appeal. The case comes here on petition for review.

II

Petitioner’s first argument was that he was not convicted of “a crime involving moral turpitude.”

He was indicted for possessing counterfeit obligations of the United States “with intent to defraud” in violation of 18 U.S.C. § 472. Upon his plea of guilty, he was convicted of “possession of counterfeit obligations of the United States, knowing same to be counterfeit in violation of Title 18, United States Code, Section 472, as charged. ...”

In Jordan v. DeGeorge, 341 U.S. 223, 227-28, 232, 71 S.Ct. 703, 706, 708, 95 L.Ed. 886 (1951), the Supreme Court said:

Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude. In the construction of the specific section of the Statute before us, a court of appeals has stated that fraud has ordinarily been the test to determine whether crimes not of the gravest character involve moral turpitude. .
In every deportation case where fraud has been proved, federal courts have held that the crime in issue involved moral turpitude. ... In the state courts, crimes involving fraud have universally been held to involve moral turpitude.
-x- * * * * *
Fraud is the touchstone by which this case should be judged. The phrase “crime involving moral turpitude” has without exception been construed to embrace fraudulent conduct.

Intent to defraud is an element not only of the crime of bringing counterfeit obligations into the United States, to which petitioner would restrict that element, but also of the crime to which petitioner pleaded guilty — possession of counterfeit obligations. United States v. Wilkerson, 469 F.2d 963, 969 (5th Cir. 1972) cert. denied, 410 U.S. 986, 93 S.Ct. 1515, 36 L.Ed.2d 184 (1973); United States v. Leitner, 312 F.2d 107 (2d Cir. 1963). Thus, having pleaded guilty to a crime in which fraud is an element, petitioner was in fact convicted of “a crime involving moral turpitude.”

Ill

Petitioner’s more substantial contention is that his return to the United States after a 27-day trip to Colombia did not constitute an “entry” within the meaning of 8 U.S.C. § 1101(a)(13).

Entry means “any coming of an alien into the United States, from a foreign port . . ..” The Immigration and Nationality Act of 1952 added an exception: “an alien having a lawful permanent residence in the United States” as did the petitioner here “shall not be regarded as making an entry ... if . his departure to a foreign port . was not intended or reasonably to be expected by him or his presence in a foreign port . . . was not voluntary.” 8 U.S.C. § 1101(a)(13).

The 1952 exception was a “codifying” of several cases decided shortly prior thereto:

In Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17 (1947), there was no “entry” when an alien seaman, on an American ship bound from Los Angeles to New York which was torpedoed, was rescued and taken to Havana, Cuba, to recuperate for a week before being returned to the United States at Miami, Florida.

In Di Pasquale v. Karnuth, 158 F.2d 878 (2d Cir. 1947), there was no entry when an alien went by sleeping car from Buffalo to Detroit upon a railroad whose route lay partially in Canada and who was asleep during the time the train was outside the United States and woke up in Detroit.

In Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947), there was no entry when an alien returning from seasonal cannery work in Alaska to Seattle, Washington, was on a vessel which made an unscheduled stop of three hours at Victoria, British Columbia.

In Carmichael v. Delaney, 170 F.2d 239 (9th Cir. 1948), there was no entry where an alien returning from wartime service with the United States Maritime Service was aboard a vessel which had stopped at many foreign ports pursuant to Navy orders and finally reached the United States.

These cases made it fairly clear as to what was intended by the 1952 statutory language of a “departure to a foreign port . . . not intended or reasonably to be expected” or “presence in a foreign port . . . [which was] not voluntary.”

In Rosenberg v. Fleuti, 374 U.S. 449 (1963), 83 S.Ct. 1804, 10 L.Ed.2d 1000, an exceptionally difficult situation had arisen. An alien homosexual entered the United States for permanent residence on October 9, 1952, a time when homosexuality did not render immigrants excludable. On December 24, 1952, the provision of the Immigration and Nationality Act of 1952 making “aliens afflicted with psychopathic personality, or sexual deviation, or meptal defect” excludable, became effective (8 U.S.C. § 1182(a)(4)). After being a permanent resident for about four years, the alien visited Mexico in 1956 for “about a couple of hours.” His return was considered an “entry” and he was ordered deported. The Court of Appeals for the Ninth Circuit set aside the deportation order on the ground that section 1182(a)(4) was unconstitutionally vague as applied to Fleuti. In a five-to-four decision, the Supreme Court held that the constitutional question could be avoided if Flenti’s return to the United States was not in fact an “entry that Congress in 1952 intended “to ameliorate the severe effects of the strict ‘entry’ doctrine;” and that the exception in 8 U.S.C. § 1101(a)(13) should be construed as constituting an “entry” only following “an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” The Court then remanded the case to determine whether Fleuti’s short trip to Mexico was taken with a meaningfully interruptive intent.

The Court suggested three major factors relevant to whether the requisite intent can be inferred: (1) the length of time the alien is absent from the United States; (2) the purpose of the visit to the foreign port; and (3) “whether the alien has to procure any travel documents in order to make his trip, since the need to obtain such items might well cause the alien to consider more fully the implications involved in his leaving the country.” The Court recognized that “other possibly relevant factors” remain to be developed “by the gradual process of judicial inclusion and exclusion.”

Inasmuch as the Court was concerned with the “harsh consequence of the strict ‘entry’ doctrine,” another group of relevant factors would undoubtedly center around the effect of the uprooting caused by deportation, that is, how long the alien had been a permanent resident of the United States, whether he had a wife and children living with him, whether he owned a business establishment or a home or other real estate in the United States, the nature of the environment to which he would be deported, and his relation to that environment.

Beginning with the Fleuti criteria, it should first be noted that considerable weight was given by the Supreme Court to the “about a couple hours” Mexican visit. It is variously characterized as “his afternoon trip,” “Fleuti’s short visit to Mexico,” “a casual trip,” “innocent, casual, and brief” trip, “just visiting,” and

[cjertainly when an alien like Fleuti who has entered the country lawfully and has acquired a residence here steps across a border and, in effect, steps right back, subjecting him to exclusion for a condition for which he could not have been deported had he remained in the country seems to be placing him at the mercy of the “sport of chance” and the “meaningless and irrational hazards” to which Judge Hand alluded [in Di Pasquale, supra].

The Court, however, went on to say:

There are, of course, valid policy reasons for saying that an alien wishing to retain his classification as a permanent resident of this country imperils his status by interrupting his residence too frequently or for an overly long period of time, but we discern no rational policy supporting application of a re-entry limitation in all cases in which a resident alien crosses an international border for a short visit.

In the present case, petitioner, instead of a “couple hours” absence from the country, was gone for 27 days. In a period of somewhat more than two years, he was absent on three occasions for a total of seven months. This may under Fleuti be “too frequently or for an overly long period of time.”

The second Fleuti criterion is the purpose of the visit to the foreign. port. The Fleuti opinion seems to provide two reasons for the importance of this guideline: (1) to determine “if the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws” or (2) to determine, in a broader sense, whether the intent to depart is “meaningfully interruptive of the alien’s permanent residence.”

The most meaningful purpose would be departing with the intent to commit a crime or to violate immigration laws. It would perhaps b'e equally meaningful if the illegal purpose was formed after departure but before return. Palatian v. Immigration and Naturalization Service, 502 F.2d 1091 (9th Cir. 1974). The record here does not show an illegal purpose either before departure or before return but, according to petitioner’s testimony, while aboard the returning airplane. Fleuti, however, does not limit the searching out of the purpose for leaving the country to the illegal purpose ultimately formed.

Here petitioner testified that he took his 27-day trip to Colombia to get married but the prospective bride changed her mind. In our view departing to get married is meaningfully interruptive of the alien’s permanent residence. The possibilities of that purpose include two crucial ones, the bride might insist that the marital domicile be established in Colombia or somewhere other than the United States; or the bride might be an excludable alien under 8 U.S.C. § 1182 and the groom might elect to remain with the bride outside the United States. In other words when the petitioner left the United States on June 30, 1972, there was a substantial possibility that he would never return.

The petitioner’s testimony regarding his procuring of the counterfeit money also raises questions as to whether the Colombian visit was meaningfully interruptive of his United States residence.

Inasmuch as petitioner testified that he knew or believed that Colombia does not permit a person to take more than a few dollars of Colombian currency out of that country and that Colombian banks will not exchange a traveler’s Colombian money for United States currency, his possession of at least $2,100 worth of Colombian currency, which amount it must be presumed he brought with him from the United States, and which he converted into Colombian currency either in the United States or Colombia, tends to show an intent to remain in Colombia for a much longer period than he actually did, or perhaps indefinitely. Certainly no one would voluntarily place himself in a position where he would be forced to forfeit $2,100 if he did not resort to the black market in currency, unless he had changed his intent and returned to the United States earlier than originally planned, or perhaps instead of a prior plan not to return at all.

The remaining Fleuti criteria may be easily applied here. The petitioner had lived in the United States for almost nine years prior to his July 27, 1972 entry. He had neither wife nor children living in the United States. The petitioner introduced no evidence as to any property or employment ties with the United States nor as to any dangers awaiting him in Colombia.

Petitioner has relied principally upon three cases. In Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965), we found no “entry” where the alien had been a resident of the United States for 39 years, was married to an American citizen, had three minor children born in this country, owned a business in Chicago and had taken the family on a one-week vacation trip to Canada.

In Vargas-Banuelos v. Immigration and Naturalization Service, 466 F.2d 1371 (5th Cir. 1972), the court found no “entry” where the alien, who had lived in the United States for seven years with his wife and four children, traveled to Mexico for two days to make a condolence call on the family of a deceased cousin. The alien while in Mexico became involved in aiding four Mexicans in entering the United States illegally. He was convicted but served no time in confinement and the federal court which tried him recommended that he not be deported.

In Yanez-Jacquez v. Immigration and Naturalization Service, 440 F.2d 701 (5th Cir. 1971), the court found no “entry” where the alien, who had resided in the United States with his mother for about eight years, traveled to Mexico for two days for the purpose of revenging an earlier assault upon himself. He could not find his intended victim and he returned to the United States without committing any offense.

We find all three cases to be distinguishable in many respects. We therefore conclude that petitioner’s return to the United States on July 27, 1972 constituted an “entry.”

The petition for review is denied and the order of deportation is affirmed.

      . 8 U.S.C. § 1101(a)(13) reads:
      The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.

      . 8 U.S.C. § 1251 provides in part:
      (a) Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who—
      (4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more

      . 18 U.S.C. § 472 provides (emphasis added) : Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both.

      . Substantially the same statute as reenacted in the Immigration and Nationality Act of 1952 as 8 U.S.C. § 1251(a)(4). See note 2, supra.

      . See note 1, supra.

      . These cases are discussed in more detail in Rosenberg v. Fleuti, 374 U.S. 449, 454-58, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963).

      . Rosenberg v. Fleuti, 374 U.S. 449, 453 n. 2, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). 04.

      . Id. at 451, 453, n. 2, 83 S.Ct. at 1812.

      . Id. at 461-62, 83 S.Ct. 1804.

      . Id. at 462, 83 S.Ct. at 1812.

      . Id.

      . Id. at 460, 83 S.Ct. at 1811.

      . Id. at 451, 83 S.Ct. 1804.

      . Id. at 452, 83 S.Ct. 1804.

      . Id. at 461, 83 S.Ct. 1804.

      . Id.

      . Id. at 463, 83 S.Ct. 1804.

      . Id. at 460, 83 S.Ct. at 1811.

      . Id. at 461, 83 S.Ct. at 1811 (emphasis added).

      . Apparently the longest period involved in a case relying upon Fleuti was three weeks in Itzcovitz v. Selective Service Local Bd. No. 6, 447 F.2d 888 (2d Cir. 1971) where the alien sought and received a declaratory judgment that his trip to Tel Aviv, Israel, to attend a training course required by his employer, would not constitute an entry upon his return.

      . If petitioner’s return on any of these three occasions constituted an “entry,” his November 6, 1972 conviction would fall within five years of the entry and render him deportable under 8 U.S.C. § 1251(a)(4).

      . Fleuti, supra at 462, 83 S.Ct. at 1812.

      . Martin-Mendoza v. Immigration & Naturalization Service, 499 F.2d 918, 922 (9th Cir. 1974).

      . The court said: “The purpose, to smuggle marijuana into this country, is just as ‘meaningful’ if formed first in Mexico as it would be if first formed before going to Mexico.” Palatian, supra at 1093.

      . Fleuti refers to required “travel documents” without indicating what documents, if any, were required by Fleuti. In lieu of an immigrant visa, “an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year may present Form I-151, Alien Registration Receipt Card, duly issued to him.” 8 C.F.R. § 211.1(b). This requirement presumably would apply equally to a trip to Mexico or Colombia. However the general language in Fleuti quoted in this opinion, supra, seems to imply that an “across-the-border” trip to Mexico or Canada is of less consequence or meaning than a trip elsewhere.

      . In Palatian v. Immigration and Naturalization Service, 502 F.2d 1091, 1094 (9th Cir. 1974), the lower court considered that the alien would be deported to Communist Bulgaria. Nevertheless the court of appeals reversed and ordered deportation.