author: JAMES HUNTER, III, Circuit Judge:

text:
    SUN SHIPBUILDING & DRY DOCK COMPANY, Appellant, v. Lawrence S. BOWMAN, Deputy Commissioner, United States Department of Labor, Office of Workmen’s Compensation Program, Third Compensation District, Appellee.
    No. 74-1315.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 14, 1974.
    Decided Jan. 2, 1975.

      John J. Runzer, Hedy M. Powell, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellant.
    Robert J. Curran, Frank J. Bove, Philadelphia, Pa., William J. Kilberg, James G. Johnston, George M. Lilly, Jean S. Cooper, U. S. Dept, of Labor, Washington, D. C., for appellee.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This case involves a suit by Sun Shipbuilding & Dry Dock Company, a self-insured employer, to set aside an award granted against it by the Deputy Commissioner, United States Department of Labor, Office of Workmen’s Compensation. On July 23, 1971, Jasper Avery, a former employee of Sun, filed a claim alleging that he had sustained a hearing loss as a result of his years of work for Sun and seeking compensation under the Longshoremen’s and Harbor Workers’ Compensation Act (hereinafter “LHWCA”). After a hearing which began on June 15, 1972, the Deputy Commissioner found that Avery had sustained a 40% hearing loss and that he was entitled to compensation under the Act. This decision was affirmed by the district court, 371 F.Supp. 365 (E.D.Pa. 1974), and Sun filed a timely appeal. We reverse.

Under the statutory scheme, a claimant must comply with each of two essential deadlines in order to be entitled to compensation. First, he must notify both his employer and the Deputy Commissioner of the injury within thirty days after its occurrence. 33 U.S.C. § 912(a). Second, he must file his claim for compensation within one year of the date of injury. Id. § 913(a). Both deadlines are subject to exceptions, however. Failure to comply with the thirty-day notification requirement will not bar recovery if: (1) the employer (or his agent or carrier) had knowledge of the injury and the Deputy Commissioner determines that the employer or carrier has not been prejudiced by the failure to give such notice, or (2) the Deputy Commissioner excuses such failure on the ground that for some satisfactory reason such notice could not be given. Id. § 912(d). Similarly, the one-year statute of limitations is tolled where the employer has knowledge of the injury but fails to file a report with the Secretary. Id. § 930(f). Sun argues that Avery is barred by his failure to comply with both deadlines, each of which is sufficient by itself to prevent recovery, and that he cannot avail himself of either of the tolling provisions.

The facts of the case are briefly as follows: Avery worked as a chipper and riveter for various shipbuilding companies from 1941 to 1961 and did not begin working regularly for Sun until March, 1961. Prior to his starting work for Sun on that date, Avery was given a rather cursory pre-employment physical examination, and the medical record of that examination, which Avery signed, stated that he had a “marked hearing impairment.” Avery was twice laid off by Sun for periods of several months, and medical records from April 22, 1963 and March 23, 1964, the two dates on which he returned to work, similarly indicated that he had a hearing deficiency. However, Avery did not recall having been given physical examinations on those dates. When Avery left Sun’s employ in 1970, he did so because of a bad knee rather than because of his hearing problem.

After a hearing at which both Avery and Sun were represented by counsel, the Deputy Commissioner found that Avery did not give notice of the injury within thirty days, as required by 33 U.S.C. § 912(a), but that Sun had knowledge of Avery’s hearing loss and was not prejudiced by the lack of timely notice; that the date of injury was November 5, 1970, the last day on which Avery worked for Sun; and that the claim was timely filed within one year, as required by 33 U.S.C. § 913(a).

While the district court found an “almost unavoidable” inference from the record that Avery did not file his claim within one year of knowing of his hearing loss, it upheld the Commissioner on the ground that there was “substantial evidence” to support the finding that Sun had knowledge of Avery’s hearing loss. Since it is undisputed that Sun did not file a report of Avery’s injury, as required by 33 U.S.C. § 930(a), until after Avery filed his claim for compensation, the district court concluded that the one-year statute of limitations provided by section 913(a) was tolled in accordance with section 930(f).

Sun challenges the findings of the Deputy Commissioner as being arbitrary, capricious, contrary to law and unsupported by substantial evidence, and argues that the district court affirmance was likewise erroneous. We agree with these contentions and believe that the Deputy Commissioner erred with respect to two crucial issues: the date of Avery’s injury, and the question of whether Sun had knowledge of the injury-

In selecting November 5, 1970 as the date of injury, the Deputy Commissioner both applied an improper legal standard and disregarded uncontroverted evidence, including testimony by Avery himself. It is well recognized that in the case of occupational ailments such as hearing loss, the Deputy Commissioner in determining the date of injury should adopt a realistic approach which takes into account the fact that these ailments may manifest themselves only gradually. The courts have therefore determined that the “date of injury” for such ailments is the “date of manifestation,” the date when the employee first realizes that he has an ailment. See, e. g., Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Travelers Insurance Co. v. Cardillo, 225 F.2d 137, 142—143 (2d Cir.) cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955).

The Deputy Commissioner, however, appears to argue two distinct and inconsistent standards for determining the date of injury, both of which are erroneous. First, taking the same view as he did during the hearing, he argues that the date of injury is the date of last exposure to the allegedly injurious stimuli which caused the ailment. However, we are unaware of any authority which so holds, and the one case cited by the Deputy Commissioner in support of this view, Monti Marine Corp. v. Quigley, 167 F.Supp. 690 (E.D.N.Y.1958), is inapposite. In Monti Marine, neither the right of the claimant to compensation nor the timeliness of his suit or of his notification were contested. Rather, the suit merely involved a dispute between two insurance carriers as to which one should compensate the claimant, and the court held only that the claimant could recover from the insurance company whose policy covered him at the time he was exposed to the injurious stimuli.

Appellee also appears to take the view that the date of injury is the date on which the cumulative effects of exposure to injurious stimuli “manifest themselves to a physician rather than an unschooled employee,” citing Aerojet-General Shipyards, Inc. v. O’Keefe, 413 F.2d 793, 796 (5th Cir. 1969). We decline to follow this dictum, however. In Aerojet-General, the claimant had previously been dissuaded from filing a claim by erroneous medical advice that his ailment was not work-related, and thus it was perfectly understandable that the court ruled that the limitations period did not begin to run until the claimant received correct advice from a doctor. Aerojet-General did not hold, however, that in the absence of prior erroneous medical advice, as was the case here, a correct medical diagnosis is necessary to determine the date from which the limitations period begins to run.

Nevertheless, we do agree with the approach taken by the court in AerojetGeneral, as well as by the District of Columbia Circuit, insofar as those courts state that the date of injury should be the date on which the employee first realized, or should have first realized, that his ailment was job-related. See Aerojet-General, supra, at 795. This approach seems the most logical to us, since it provides for the running of the one-year limitations period and the thirty-day notification requirement from the only date on which the employee could reasonably be expected to file a claim or to provide notice.

Applying this test, however, we conclude that there is no evidence, much less substantial evidence, that the date of Avery’s injury was November 5, 1970, the last day he worked for Sun. The 1961 pre-employment physical examination, cursory and unscientific though it was, indicated that Avery suffered a hearing deficiency prior to beginning work for Sun. At the proceedings before the Deputy Commissioner, Dr. Sata-loff testified for Sun that any hearing loss a worker would suffer would occur within the first ten years of exposure to loud noises. Based on his experience and Avery’s record of having done chipping and riveting work for twenty years before coming to Sun, Dr. Sataloff gave it as his opinion that Avery’s hearing loss was a result of working conditions on prior jobs.

Most important was the testimony of Avery himself, who testified that he first became aware of his hearing loss in 1967. While there was no testimony that Avery was ever specifically advised that his hearing loss was job-related, we conclude on the basis of the record that Avery could not reasonably have believed that his hearing problems were due to other causes. He stated that when he visited his family doctor about his hearing problem, he believed that it might be due to an accumulation of wax, but that the doctor informed him that such was not the case. He further testified that the noise on the job hurt his ears and that the safety department at Sun strongly urged all employees, through conspicuously-placed posters and meetings with safety personnel, to wear ear plugs in order to protect their hearing. Avery even admitted that he wore ear plugs on the job for that reason.

We thus conclude that the record below convincingly establishes that Avery first became aware of his hearing deficiency and that he first became aware, or should have become aware, of the occupational implications of that deficiency no later than 1967, well before he stopped working for Sun. The Deputy Commissioner’s finding that the date of injury was November 5, 1970 is arbitrary, capricious and unsupported by substantial evidence, and therefore it must be set aside. Since the date of injury occurred sometime in 1967 at the latest, and since it is undisputed that the claim was not filed within one year of that date and that notification of the injury was not given within thirty days thereof, Avery cannot recover unless he can take advantage of both tolling provisions, 33 U.S.C. §§ 912(d) and 930(f).

Although the two tolling provisions contain somewhat different requirements, they are similar in that each requires, at a minimum, that the employer had knowledge of tlíe employee’s injury. The Deputy Commissioner found that Sun had such knowledge, but again we believe that there is not substantial evidence in the record to support that finding. It is obvious that the knowledge requirements in sections 912(d) and 930(f) must refer to knowledge on the part of the employer of an injury sustained or an ailment incurred as a result of working conditions for which the employer is responsible. Such knowledge must relate to the person injured, as well as to an injury arising from the employment. We cannot infer a congressional intent that the knowledge requirement can be fulfilled, and that the employer may therefore be liable, when the employer has no reason to know whether it is the party responsible for the injury or ailment of a particular employee.

Viewing the record in that light, we find no evidence that Sun had knowledge that Avery sustained a hearing loss due to working conditions at Sun. At the hearing, William Millar, Sun’s manager of labor relations, testified that the first time Sun had notice of Avery’s alleged loss of hearing was when Avery filed his claim for compensation. In fact, counsel for claimant conceded that Sun did not receive notice until that date. The district court disregarded this evidence and appeared to rely on the fact that Sun urged large numbers of its employees to wear ear protection as substantial evidence of Sun’s knowledge. However, we do not see how that safety policy adopted by Sun has any tendency to establish that Sun had the requisite knowledge that Avery had incurred a hearing disability.

The only other evidence possibly tending to establish knowledge on Sun’s part consists of the records from the three physical examinations dating from 1961, 1963 and 1964. However, the Deputy Commissioner gave those reports no weight at the hearing, and we do not believe that he can now rely on those records as evidence of notice. Furthermore, it is apparent that those records have even less probative value to establish notice than to establish the date of injury. The 1961 examination is obviously irrelevant, since it establishes at most that Sun had knowledge of a hearing deficiency which Avery possessed before he began working at Sun. The 1963 and 1964 medical reports likewise do not establish notice, since they do not indicate any deterioration in Avery’s condition after 1961. Furthermore, since Avery denied that he was given any physical examination in 1963 and 1964, we cannot infer from those reports that Sun acquired any additional information about Avery’s condition that it had not already obtained through the 1961 examination.

We therefore conclude that the Deputy Commissioner’s finding that Sun had knowledge of Avery’s hearing deficiency within the meaning of the Act must be set aside. Consequently, the award to Avery was improper both because he did not file his claim within one year of the date of injury and because he failed to provide the requisite notice within thirty days thereof.

Since either ground is sufficient by itself to require reversal, and since the lack of knowledge alone is sufficient to bar recovery under the thirty-day notification rule, it is not necessary to consider whether the failure to provide notification was prejudicial to Sun. We are of the opinion, however, that there is no substantial evidence here as well to support the Deputy Commissioner’s finding with respect to lack of prejudice. Certainly a major reason for the thirty-day notification rule is to protect the employer from meritless claims by enabling it to undertake a prompt investigation to determine the nature and extent of the employee’s alleged injury. Given this purpose, Sun’s knowledge that its work conditions were capable of causing hearing loss and its institution of a safety program for all its employees, the factors upon which the Deputy Commissioner and the district court appeared to rely, seem hardly relevant to the question of whether Avery’s failure to provide notice within thirty days was prejudicial to Sun.

For the foregoing reasons, the judgment of the district court will be reversed and the case remanded with instructions to grant Sun’s motion for summary judgment and to vacate the order of summary judgment granted in favor of the Deputy Commissioner. Each party to bear its own costs.

      . The actual date of filing is not entirely clear. While the claim Avery signed was dated July 23, 1971, the record is not clear as to whether it was received on July 27 or on August 4. Regardless of which data is accepted as the date of filing, however, it would fall within one year of the date Avery last worked for Sun (November 5, 1970).

      . 33 U.S.C. § 901 et seq. (1970). Since the award was granted prior to the effective date of the 1972 amendments to LHWCA, those amendments do not affect our disposition of this case and our interpretation of the Act is governed by precedents decided prior to the enactment of the amendments.

      . This one-year limitation period is mandatory and compliance with it has been termed “jurisdictional.” See, e. g., Young v. Hoage, 67 App.D.C. 150, 90 F.2d 395, 397 (1937); Dawson v. Jahncke Drydock, Inc., 33 F.Supp. 668, 670 (E.D.La.1940).

      . The Deputy Commissioner never excused Avery’s failure to give notice under § 912(d)(2), and thus Avery can avoid the thirty-day notification requirement only if he can show that Sun had knowledge of his hearing loss and was not prejudiced by the failure to give notification.

      . Sun also argued in the district court that even if it were liable, the Deputy Commissioner incorrectly calculated the amount of the award to Avery by measuring damages on the basis of a binaural rather than a monaural impairment. However, in a letter filed with this Court on November 8, 1974, counsel for Sun withdrew its appeal on this issue, and consequently we are concerned only with the issue of liability.

      . Before his hiring in 1961, Avery had worked for Sun for a brief period of eleven days in 1943.

      . The test was apparently conducted by a doctor who stood at one end of the room, told Avery to cover one ear, and then whispered numbers or words and asked if he could hear them. No instruments were used, and the findings were reported in very general terms. While the Deputy Commissioner received this report into evidence, he gave it no weight in his findings because “the method of testing was not shown to be scientific, reliable or probative.”

      . Stancil v. Massey, 141 U.S.App.D.C. 120, 436 F.2d 274, 278-279 (1970).

      . Such a standard has in fact been adopted by the 1972 amendments to the Act. 33 U.S.C. § 912(a), as amended, now provides:
      Notice of an injury or death in respect of which compensation is payable under this chapter shall be given within thirty days after the date of such injury or death, or thirty days after the employee or beneficiary is aware or in the exercise of reasonable diligence should have been aware of a relationship between the injury or death and the employment. Such notice shall be given (1) to the deputy commissioner in the compensation district in which the injury occurred, and (2) to the employer.

      . The Deputy Commissioner himself characterized the date of last exposure as “arbitrary,” but selected it because he believed that it was difficult to determine any other date as the date of injury for occupational ailments.

      . The Deputy Commissioner only found that Sun had knowledge for purposes of section 912(d), which would excuse the failure to provide the thirty-day notice required by section 912(a). Since he found that the date of injury was November 5, 1970 and that Avery filed his claim within one year thereof, he did not consider the tolling provision of section 930(f), which governs the one-year limitation period.
      The district court, however, relied on section 930(f), since it agreed with Sun that the date of injury antedated November 5, 1970. In so doing, it acted sua sponte, since neither party had argued the relevance of section 930(f). Apparently, the district court believed that the finding that Sun had knowledge for purposes of section 912(d) necessarily meant that it also had knowledge for purposes of section 930(f). Without passing on the correctness of this belief, we shall treat the two knowledge requirements together, since we believe that the record does not support the finding that Sun had knowledge for purposes of either section.

      . See note 7 supra.

      . At oral argument, the Deputy Commissioner took the position that the records did indicate such a deterioration, since the 1961 report stated that Avery had a “marked hearing impairment,” whereas the 1963 and 1964 reports stated that he was “deaf.” Counsel for Sun responded that the handwritten notation appeared to be “def.,” possibly an abbreviation for “deficient.” Given the difficulty in deciphering this notation, the unscientific nature of the examination, and the fact that even now Avery cannot be termed “deaf” (since his hearing loss was measured at 40%), we believe that the differing notations in the reports cannot provide evidence of Sun’s knowledge of a deterioration.

      . 33 U.S.C. § 912(d)(1) provides that the failure to give the thirty-day notice shall not bar recovery “(1) if the employer ... or the carrier had knowledge of the injury or death and the deputy commissioner determines that the employer or carrier has not been prejudiced by the failure to give such notice.” (Emphasis added.) Thus, it is clear that a claimant must satisfy both requirements in order to avoid being barred by his failure to provide the thirty-day notice.


source: Caselaw Access Project

author: RONEY, Circuit Judge: MOORE, Circuit Judge

license: Public Domain

text:
    Karen Renee AUGUSTUS, a minor, by Charles A. Augustus, her father and next friend, et al., etc., Plaintiffs-Ap-pellees, Belinda Jackson, Intervenor-Appellee, v. SCHOOL BOARD OF ESCAMBIA COUNTY, FLORIDA, et al., Defendants-Appellants, Nicky D. Scapin et al., Intervenors-Appellants.
    No. 73-3272.
    United States Court of Appeals, Fifth Circuit.
    Jan. 24, 1975.

      Mark R. Hawes, Tampa, Fla., for Sca-pin, and others.
    Edward T. Barfield, Pensacola, Fla., Semmes Luckett, Leon L. Porter, Jr., Clarksdale, Miss., for School Board, and others.
    Norman J. Chachkin, Drew S. Days, III, Jack Greenberg, New York City, for Karen R. Augustus, and others.
    Ed Duffee, Jr., Tallahassee, Fla., for Belinda Jackson.
    Richard H. Frank, Ronald G. Meyer, Tampa, Fla., amicus curiae, for Fla. Ed. Assoc., Inc.
    Before MOORE, AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   RONEY, Circuit Judge:

The school board and certain interven-students appeal from a permanent injunction against the use of the Confederate Battle Flag as a school symbol and the use of the name “Rebels” in connection with the school’s athletic teams and other extracurricular activities. Under its continuing jurisdiction to implement desegregation of the school, the district court could properly provide some relief against these symbols to the extent that they adversely affect the establishment of a unitary system of education. Because the permanent injunction goes further than appears to have been necessary to achieve this purpose, however, we remand the case for further consideration of the breadth of the injunction and of whether the school board should be allowed to consider solutions to the problems of interference with the plan of desegregation short of the total and permanent ban of the symbols required by the court’s injunction.

The facts of this case and the district court’s reasoning are ably set forth in the opinion reported as Augustus v. School Board of Escambia County, 361 F.Supp. 383 (N.D.Fla.1973).

This presents but one facet of an original action filed in 1960 to require that the schools of Escambia County be reorganized into a unitary system operated on a nonracial basis. The court retained jurisdiction of the matter in order to effectuate its orders, and has continued to exercise supervision under its retained jurisdiction, as required by the law of this Circuit.

During the 1972-1973 school year, the fourth year of significant integration, Escambia High was afflicted with racial •'disturbances within the student body, slightly less than eight percent of which was black. Four massive confrontations involved major interracial fighting. After the first, in November, law enforcement officers were called in to restore order, and they remained for the rest of the academic year. The school had to be closed twice. In addition to the four major disturbances, there were numerous lesser ones, including small-scale fights and walkouts.

One source of racial tension was black students’ demands to abolish the school’s Confederate symbols. The name “Rebels” had been chosen by vote of the all-white student body when the school first opened in 1958. The Confederate Battle Flag became the accepted symbol of the athletic teams that same fall. The desire to continue the use of “Rebels” and the Confederate Battle Flag was confirmed by a landslide student vote in January 1973, after two of the major confrontations had occurred. A week later the district court issued a preliminary injunction enjoining the school board from permitting (1) the use of the name “Rebels,” (2) the display of the Confederate Battle Flag on school premises, with certain exceptions, and (3) the wearing or displaying of the flag on the clothes of any student while the student attended a school-sponsored activity. A week after the court’s preliminary order, the third major black and white confrontation occurred — weeks later, the fourth.

After the preliminary injunction, a number of white students were permitted to intervene on the side of the school board. After a trial the district court made final its preliminary injunction. The court found that the use of the symbols was racially irritating to many black students, was a significant contributing cause of racial tension at the school, had become a focal point for racial tension, and would continue as a source of tension and a cause of violence and disruption. Although recognizing that most white students identified the symbols only with Escambia High, and not with anti-black sentiments, and that removal of the symbols might not eliminate racial tension, the court concluded that the continued presence of the symbols would adversely affect the operation of a unitary system at Escambia High by providing a continuing, visual focal point for racial tensions.

It is axiomatic that federal courts should not lightly interfere with the day-to-day operation of schools. See, e. g., Wright v. Houston Independent School District, 486 F.2d 137 (5th Cir. 1973), cert. denied, 417 U.S. 969, 94 S.Ct. 3173, 41 L.Ed.2d 1140 (1974); Shanley v. Northeast Independent School District, 462 F.2d 960 (5th Cir. 1972). There is a serious question as to whether this case involving what name high school athletic teams will play under, and what flag the school will use for a symbol, could independently gain the attention of a federal court. See Banks v. Muncie Community Schools, 433 F.2d 292 (7th Cir. 1970); cf. Karr v. Schmidt, 460 F.2d 609 (5th Cir.) (en banc), cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972).

There is little question that, as a general rule, the community would be better served by letting the students of public high schools determine, by the democratic processes of their student governments, the names and symbols to designate their athletic teams and school programs. The key factor that derailed that concept in this case was the violence and disruption that occurred in the educational process; violence and disruption which was focused on the use and misuse of these symbols. With violence and disruption as the key, the case presents for rationalization two concepts: one which is totally unacceptable, i. e., by creating a violent disturbance over the failure to obtain a change in the name and flag of a school’s athletic teams peacefully, an unsuccessful minority may furnish a base upon which to posit a court order requiring a change in the name and flag selected by a majority of the students; and one which is worthy of consideration, i. e., where a pre-existing condition of a school which is placed under a court order to obtain a unitary school system inherently prevents students of both races from enjoying an equal education at that school, a federal court has the power and the obligation to require a' change in that pre-existing condition.

The first two arguments of the three point brief filed by the intervening " white students are easily answered by settled precedent. First, they argue that the injunction against individual students collides with the Fourteenth Amendment authority of the court limited to “state action” as opposed to “action of individuals.” A court has inherent power to enter such ancillary orders as are necessary to carry out the purpose of its lawful authority. The desegregation order is admittedly within the jurisdiction of the court and the court may enter an injunction against any individual who interferes with the proper execution of that order.

Second, they argue that the injunction against the students collides ^with their First Amendment rights to freedom of speech, as explicated under Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) and University of Southern Mississippi Chapter of M.C.L.U. v. University of So. Miss., 452 F.2d 564 (5th Cir. 1971). An Í established exception to the First Amendment rights of students occurs, however, in cases where the exercise of that right causes violence and disruption in the educational process. Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966). Here the district court made adequate findings to place the injunctive relief well within this exception.

The third point made by intervenors presents us the issue which requires that the case be remanded for further consideration by the district court. The inter-venors assert that the court’s injunction against the individual students is erroneous because the school board had promulgated a written policy prohibiting the use of the involved symbols to harass or intimidate teachers or other students, directing their use and display only in good taste, and directing the policy’s enforcement and providing sufficient lawmen to protect all students before Inter-venor Jackson filed her complaint. On this point, the intervening white students’ argument lines up with the argument of the school officials. Inherent in the argument is the assertion that had the school board been permitted time to enforce its own regulations, the violent results from the use of the symbols could have been eliminated without federal court intervention. They note that nei-ither Intervenor Jackson, nor her witnesses, nor the trial judge ever contended that the involved symbols per se pre- ! vented a “unitary school system.” They assert that Jackson and her witnesses were complaining about the misuse of said symbols by a relatively small minority of the white students and some unidentified people off-campus. They point to the express exemptions in the district court’s order that permit the symbols and names to be used and displayed. The officials and intervenors state that the effect of this is to demonstrate that the symbols are not per se suppressible, but that their misuse may be prohibited. Finally, they contend that the school board had taken appropriate action to prohibit their misuse, and that is all the relief to which Jackson should be entitled. Thus, they argue, the court’s injunction, which goes much further, is in error and should be vacated.

It is readily apparent that this case is unlike the single case in this Circuit which held that the presence of Confederate insignia in a school may call for federal court intervention. In Smith v. St. Tammany Parish School Board, 448 F.2d 414 (5th Cir. 1971), we upheld a district court order banning official display of symbols “expressing the school board’s or its employees’ desire to maintain segregated schools,” and requiring that the symbols be removed. 448 F.2d at 415. Such identification of the symbols with official resistance to a unitary system is not present in the instant case.

In the instant case the school board seeks the opportunity to reach a solution to the problems created by abusive use of the school symbols, which solution it feels can be less drastic than the total ban required by the district court’s injunction. We agree that the school board should have the opportunity it seeks.

In converting to a unitary school system in which racial discrimination is eliminated root and branch, it is incumbent on the school board “to come forward with a plan that promises realistically to work, and promises realistically to work now.” The obligation of the district court in the first instance “is to assess the effectiveness of the proposed plan in achieving desegregation,” considering the facts at hand and any alternatives to the plan which may be available. Green v. County School Board of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716 (1968).

The record in the present case clearly shows that the school board’s efforts to achieve a unitary system were in good faith. The school board, on January 5, 1973, unanimously adopted a conciliatory agreement worked out with the NAACP in an attempt to resolve the racial disturbances at Escambia High School, in which it recognized that the symbols in this case were racially irritating. The board urged the superintendent to set up comprehensive procedures immediately to deal with every irritant appropriately.

On January 15, 1973, the school board reaffirmed its policy that symbols could be used as “rallying points for athletics and other events,” and not to harass or intimidate teachers or students. At that same meeting the board resolved to “take those steps necessary to see that a proper educational environment exists,” stating that “[i]t is essential that school board policies and regulations may be followed.” The school board sought to follow the guidelines laid down in Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966); Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966) and Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). But the district court did not evaluate these regulations and the enforcement mechanism to see if in fact they would eliminate the main objection to the symbols, their use as racial irritants. Instead the district court fashioned a remedy without such consideration.

The district court recognized that the symbols were not the sole cause of racial tension at Escambia High School, even noting that the elimination of the symbols might have no effect on the disturbances. In fact, two major disturbances occurred after the issuance of the preliminary injunction in this case, raising some question as to whether the matter could have been better answered without court interference. The elimination of racial tension is a complex problem and a problem with which the school board had begun to grapple. Although it is no doubt regrettable that a majority of the white students appeared insensitive at the time to the feelings and perceptions of many of their black schoolmates, the school board’s adherence to its permissive symbol selection policy should be evaluated in conjunction with its regulations for insuring against abusive or disruptive use of the symbols selected. It may have been better for all concerned had the school board simply eliminated all ethnically and racially irritating symbols from possible consideration. As the Seventh Circuit noted in Banks v. Mun-cie Community Schools, supra, quoting a district judge’s admonition to the school board:

This Court would recommend to the school authorities that they exercise their discretion to bring about the elimination of school symbols which are offensive to a racial minority. I think it is axiomatic that many symbols are inappropriate for use in public institutions in this country. For instance, some such symbols are the Nazi Swastika, the hammer and sickle, the hooded white-sheet of the Ku-Klux Klan, the clenched fist, etc.
Tyranny by the majority is as onerous as tyranny by a select minority. The student body’s choice of symbols has been shown to be personally offensive to a significant number of the students, no matter how innocuous the symbols may originally have seemed to the young, white students. An exercise in democracy which results in offense to a sizeable number of the participants should be seriously reconsidered by the student body.

433 F.2d at 297-298.

It is not the responsibility of the federal courts, however, to run public schools absent an abrogation of the responsibility by those whose duty it is to run a constitutionally acceptable school system. The fact that under the circumstances a board regulation banning all use of the symbols may have been permissible, see Tinker v. Des Moines Community School District, supra, does not impose upon the district court the right to force that drastic measure when there is a possibility that lesser restrictions might suffice.

The district court should examine the regulations and the mechanism for their enforcement for effectiveness in achieving the elimination of discrimination root and branch, and if it finds them inadequate for that purpose, it should order the school board to promulgate regulations specifically aimed at alleviating the problem of symbolic irritation. Only as a last resort should the court arrogate to itself the position of administering any part of the day-to-day operation of the school system.

As stated by the Eighth Circuit:

The action taken by the school authorities obviously averted serious trouble and was not only practical but clearly and properly within the rights of the school officials if we are to have any discipline in our public schools. Court intervention could in such situations only serve to fan the embers of unrest. The court should never interfere except where there is a clear case of constitutional infringement.

Tate v. Board of Ed. of Jonesboro, Ark., Spec. Sch. Dist., 453 F.2d 975, 982 (8th Cir. 1972).

There is an additional reason why the permanent injunction entered by the district court must be modified. The federal court will relinquish jurisdiction when the remedy required by the original suit, the establishment of a unitary school system, has been fully achieved. At that time, presumably, any ancillary orders 'entered to aid the implementation of the court-ordered remedy should no longer be necessary. Therefore, the court order transcends that period of time over which the court should assert jurisdiction. To that extent at least, the order should be modified. Any injunction in circumstances of this kind should probably be temporary only and should be effective only so long as might be necessary to achieve the purpose of preventing the interference with the desegregation orders of the court.

We, therefore, remand the cause for reconsideration of whether any injunction is still necessary, when the school should be released from the effect of any injunction that may still be needed, whether an injunction against the misuse of flags and symbols would be preferable to a complete prohibition, and whether the school board can come up with a plan that will achieve the purpose of a unitary system without interference /from the federal court.

We are not unmindful of the fact that the name and flag have undoubtedly been changed by now. The students themselves and the board will know whether, except for those rabble-rousing few who might still be intent upon stirring up trouble, the school and its educational purposes might be better served by letting well enough alone. Mootness is a matter of which courts should be constantly aware. All aspects of the case as the situation exists upon remand will be before the district court for consideration.

In order not to create a hiatus where the passage of time leaves us without sufficient facts to know the effect of a withdrawal of the injunction, we merely modify the injunction to change it from permanent to temporary until further order of the district court, and remand the cause to the district court for reconsideration in the light of this opinion and the factors which we have here discussed.

Modified and remanded.

MOORE, Circuit Judge

(dissenting).

When the federal courts undertake to regulate the conduct of students and spectators at football games (such as cheering and pennant waving) and the nickname (the “Rebels”) by which the team be called, in my opinion they have, indeed, strayed far beyond their constitutional functions and have created a new kind of tyranny, i. e. “tyranny of the courts.” The imposition of the federal decree before us completely thwarts the democratic process. If the will of the vast majority (concededly a “landslide student vote”) is to be overridden at the behest of a small minority (here less than eight percent of the students were black), then that concept of our so-called democratic system might as well be scrapped. If small minorities know that they can attain their goal by saying “do thus and so because we find your actions offensive to us” and can obtain a federal injunction if the majority do not bend to their demands, then federal jurisdiction will have been stretched far beyond its intended constitutional limits. Civil rights should mean civil rights for all — not merely for a militant or threatening minority. Furthermore, the constituency of the teams in various sports throughout the country should be convincing proof that sports have no racial barriers. To the contrary, they have been in the front rank in the field of wholesome integration.

Nor do I find any rational relationship between the achievement of “a unitary system operated on a nonracial basis” and the nickname of an athletic team. Until a local ordinance is enacted making it a misdemeanor for a spectator to give a spontaneous rebel yell after Es-cambia scores a touchdown or a court order decrees that only United States Marshals be Escambia’s cheerleaders, I would prefer to remain on the sidelines and let “1984” approach with dire misgivings that the federal courts may substitute themselves for “big brother” in that prophetic novel fast becoming nonfiction. In short, I would reverse and vacate the injunction.

      . “Tyranny by the majority is as onerous as tyranny by a select minority.” 433 F.2d at 297.

      . For example, what of the right of some well-intentioned Southerners to try to force the New York “Yankees” to abandon their nickname?

      . “1984”, Orwell.


author: TUTTLE, Circuit Judge:

text:
    NEW ORLEANS PUBLIC SERVICE, INC., Plaintiff-Appellee, v. William H. BROWN, III, Chairman, et al., etc., Defendants-Appellants.
    No. 74-1697.
    United States Court of Appeals, Fifth Circuit.
    Jan. 27, 1975.
    Rehearing and Rehearing En Banc Denied March 19, 1975.

      William A. Carey, Gen. Counsel, William H. Robinson, Associate Gen. Counsel, Isabelle R. Cappello, Asst. Gen. Counsel, Diane S. Greenberg, Joseph P. McCormick, John F. Goemaat, Attys., Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Atty., Charles L. Reischel, Ramon V. Gomez, EEOC, Washington, D. C., . Charles White, EEOC, New Orleans, La., for defendants-appellants.
    Michael J. Molony, Jr., New Orleans, La., for plaintiff-appellee.
    Howard L. Mocerf, Jerry Kronenberg, Chicago, Ill., Milton Smith, Gen. Counsel, Richard Berman, Labor Relations Counsel, Washington, D. C., for Chamber of Commerce, amicus curiae.
    Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
   TUTTLE, Circuit Judge:

This is an appeal by the Equal Employment Opportunity Commission and individual complaining parties from an injunction forbidding the Commission from pursuing any investigation of the New Orleans Public Service, Inc. and several labor organizations pursuant to a charge filed by EEOC Commissioner William H. Brown, III. Viewed against a backdrop of the many proceedings pending and disposed of in the Courts of this Circuit dealing with the provisions of Title VII of the Civil Rights Act of 1964 (Equal Opportunity Act) (42 U.S.C. § 2000e — 9), we conclude that were this decision of the trial court to stand it would render a substantial part of Title ■Vil a nullity. We therefore reverse.

Starting out as a run-of-the-mill Commissioner’s charge, Commissioner Brown filed his charge on January 4, 1972 following receipt by the Commission of six individual charges of employment discrimination filed between May 5, 1971 and July 30, 1971. These individual charges allege that the company had violated Title VII by refusing to hire blacks, unjustly discharging blacks, systematically excluding blacks from employment, maintaining segregated facilities, and allowing the harassment of blacks. After the Commissioner’s charge had been served on the employers with a request for access to information relevant to the Commission’s investigation of the charges and after the request had been ignored the Commission caused an administrative subpoena to be served on the company on August 11, 1972. On August 18 the company petitioned the Commission to revoke the subpoena, which petition was denied on August 29, 1972, although the subpoena was modified to the extent that such information as had been previously submitted in connection with other Commission investigations of NOPSI need not be again produced. The Commission also stated in its response that it would copy the subpoenaed documents at its own expense or make arrangements properly to reimburse the company.

On September 14, the company filed a complaint with the district court asking that the Commission be enjoined from enforcing the subpoena duces tecum and from further investigating the Commissioner’s charge. The Commission, counterclaimed for enforcement of its subpoena. On November 20, 1972 the Commission moved the district court for judgment pursuant to Rule 81(a)(3), or in the alternative, for summary judgment. After an oral hearing was held at which company officials testified to the burdensome nature of the compilation of records that would be necessitated by enforcing the subpoena, more than a year later, in January, 1974, the trial court concluded both that the enforcement of the subpoena would be too burdensome, in that it required a compilation of data by the utility company, and that the enforcement of the subpoena was not justified because Commissioner Brown’s charge was invalid. The court thus enjoined any further investigation under the charge.

Under the requirements of the statute, as paraphrased by the court: “[A] commissioner first must have had reasonable cause to believe that the discriminatory practice actually did exist, and further, the Commission must have presented a concise statement of facts on which the charge rested.” The court determined that the “facts” as found by the court “disclose[d] no basis for a reasonable cause by the charging commissioner to believe that . . . discriminatory practices actually did exist.”

The trial court was under no illusions as to the unique position which it took with respect to the Commissioner’s charge. Neither the court itself nor NOPSI in its brief in this Court points to a single decided case in which a charge as fully documented as the one before us has been held to be insufficient for the purpose of commencing the investigatory procedures by the Commission.

Since the charge filed by Commissioner Brown is the all-important element in the case we consider it necessary to quote it in full to show how completely the trial court misunderstood its responsibility when faced with the request for the enforcement of a subpoena as authorized under § 709(a), 42 U.S.C. § 2000e— 8(a), § 710, 42 U.S.C. § 2000e-9 (Supp. II 1972) and § 161 of Title 29 which is incorporated by reference as to the subpoena power.

The charge was worded as follows:

“Pursuant to Title VII, Section 706(a) of Civil Rights Act of 1964, I charge the following employer and unions with unlawful employment practices:
New Orleans Public Service
317 Barone Street
New Orleans, Louisiana
and
Cooperative Power Division Employer Association of New Orleans
New Orleans, Louisiana
Cooperative Electric Distribution Division
Employees Association of New Orleans
New Orleans, Louisiana
Cooperative Gas Department Employees Association of New Orleans
New Orleans, Louisiana

I have reasonable cause to believe that the above employer and unions are within jurisdiction of the Equal Employment Opportunity Commission and have violated Section 703(a), (c), and (d) of the Civil Rights Act of 1964 by discriminating against Negroes, Spanish Surnamed Americans, Jews and females on the basis of race, national origin, religion and sex with respect to recruitment, hiring, job assignment, seniority, promotion, representation, and other terms and conditions of employment.

1. Respondent employer discrimina-torily refuses or fails to recruit and hire Negroes, Spanish Surnamed Americans, Jews and females in the same manner it recruits and hires Caucasians.
A. Of a total company employment of 3052, 695 (22.8%) are Negro. The population of New Orleans is 45% Negro.
B. The company employs 1 Spanish Surnamed American. The estimated Spanish Surnamed population of New Orleans is 5%.
C. Females account for 248 (8.1%) of the company’s total employment.
2. Respondent employer discrimina-torily places Negroes, and females in traditionally relegated or lower-paying jobs.
A. Of 1,117 white collar workers, 24 (2.1%) are Negro. Of these 24 Negro white collar workers 14 (58%) are office and clerical workers.
There is a total of 1877 blue collar workers. Negroes hold 617 (32.9%) of the blue collar jobs and account for 53 (86.9%) of laborers and 54 (93.1%) of all service workers. Females hold 238 (21.3%) of all white collar jobs. Of the female white collar workers 221 (93%) are office and clerical employees. Only 2 (0.1%) hold blue collar jobs.
3. Respondent employer discrimina-torily limits and restricts Negroes, Spanish Surnamed Americans and females from higher-paying positions as officials and managers, professionals and technicians.
4. Respondent employer discrimina-torily limits and restricts Negroes, Spanish Surnamed Americans and females in certain job categories.
5. Respondent employer discrimina-torily maintains segregated departments based on race and sex.
6. Respondent employer discrimina-torily maintains a seniority system that discriminates against Negroes, Spanish Surnamed Americans and females.
7. Respondent employer discrimina-torily fails to provide Negroes, Spanish Surnamed Americans, Jews and females with equal job opportunities benefits and promotions afforded other employees.
8. Respondent employer discrimina-torily fails to provide equal training opportunities to Negroes, Spanish Surnamed Americans and females.
9. Respondent Union discriminato-rily fails equally to represent Ne-gores, Spanish Surnamed Americans and females.
10. Respondent Union discriminato-rily restricts Negroes, Spanish Sur-named Americans and females from its membership.
11. Respondent employer and union have further discriminated against Negores, Spanish Surnamed Americans, Jews, and females in all policies and practices, like, related to, or growing out of the specific practices enumerated above.
The class aggrieved includes, but is not limited to, all persons who have been and continue to be or might be adversely affected by the unlawful practices complained of herein.
This charge applies to the home office and all of the employees’ facilities.”

As we have stated the trial court cited no case, and none is cited by the appellant, to conflict with the plethora of cases holding that charges similar to that involved here, even without the statistical information which this charge contains, are sufficient to commence the investigatory procedures by the Commission, including the power to seek a subpoena for the kind of information sought here. See, General Employment Enterprises, Inc. v. EEOC, 440 F.2d 783 (7th Cir. 1972); Local No. 104, Sheet Metal Workers Int’l Ass’n v. EEOC, 439 F.2d 237 (9th Cir. 1971); Sparton Southwest, Inc. v. EEOC, 461 F.2d 1055 (10th Cir. 1972); Bowaters Southern Paper Corp. v. EEOC, 428 F.2d 799 (6th Cir. 1970), cert. denied 400 U.S. 942, 91 S.Ct. 241, 27 L.Ed.2d 246 (1970); Adolph Coors Co. v. EEOC, 464 F.2d 1270 (10th Cir. 1972), cert. denied 410 U.S. 929, 93 S.Ct. 1365, 35 L.Ed.2d 591 (1973).

The trial court seems to have been impressed with a feeling that there was some constitutional protection under the Fifth Amendment to prevent the Commission from proceeding to ascertain •the facts until it was already able to allege the facts in the charge initiating the procedure. The language of Local No. 104, Sheet Metal Workers Int’l Ass’n v. EEOC, 439 F.2d 237, at 241 seems to be an apt answer to such a contention. “Local 104’s vigorous exhortation to the court to interpret the language quoted above [and such charge sets forth the facts upon which it is based] to mean that the Commission, in its investigation, must not ask any questions to which it does not already know the answers, has about it the aura of another, and bygone, legal era.” [Emphasis added].

We now come to the second issue on the appeal — the correctness of the trial court’s order quashing the subpoena in its entirety. Even though the subpoena had demanded information which, either because of the complexity of its compilation or the inordinate expense of sifting it out, or for some other proper cause, it was within the power of the trial court to modify, the court erred in placing the burden on the EEOC to restructure its subpoena merely because full and complete compliance was arguably troublesome and expensive to the employer. Moreover, the court placed the limitation on the power of the subpoena on an improper basis when it held that it was invalid merely because it required the company to make compilations. In dealing with a somewhat similar question this Court said in Burns v. Thiokol Chemical Corp., 483 F.2d 300, 307 (5th Cir. 1973), “Of course, the extensive listing of information required to fully answer the interrogatories is somewhat cumbersome. But, as the Ninth Circuit has pointed out, the fact that an interrogatory calls for a list did not make it improper.”

This Court decided as long ago as 1936 in Bradley Lumber Co. of Arkansas et al. v. Nat’l Labor Relations Bd. et al., 84 F.2d 97 (5th Cir. 1936), in a case in which an employer sought to enjoin an investigation by officials of the National Labor Relations Board that such an action would not lie. This Court said:

“No doubt an investigation may, as the bill asserts, stir up some feeling among employees and cause some inconvenience by taking witnesses from their work, but these things are incident to every sort of trial and are part of the social burden of living under government. They are not the irreparable damage which equity will interfere to prevent; . . . ”

The Supreme Court in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946) established what has since become the rule for interpreting regulatory statutes, namely that it is for the agency rather than a district court to determine in the first instance the question of coverage in the course of the preliminary investigation into possible violations. See 327 U.S. at 214, 66 S.Ct. 494. Then speaking of the showing of coverage which an agency must make to secure judicial enforcement of a subpoena, the Court in Oklahoma Press stated that: “Any possible constitutional requirement of that sort was satisfied by the administrator’s showing in this case, including not only the allegations concerning coverage, but also that he was proceeding with his investigation in accordance with a mandate of Congress and that the record sought was relevant to that purpose.” 327 U.S. at 215-216, 66 S.Ct. at 509.

There could be no question but that the documents sought in this case were relevant to the inquiry sought to be made by the EEOC. It was clearly the obligation of the Court to enforce the subpoena that asks for the production of any “evidence of [the] person being investigated or proceeded against that relates to unlawful employment practices covered by this Title and is relevant to the charge under investigation.” § 709(a), 42 U.S.C. § 2000e-8(a). The trial court was clearly in error in quashing the subpoena in its entirety. It was also in error in limiting the right of the EEOC to obtain information that did not need to be “compiled” by the company. No different standards should be applied to the handling of this subpoena than is ordinarily the rule under Rule 45(b) Federal Rules of Civil Procedure which provides that the court may upon motion promptly made: “(1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.” The essential element here is that the trial court must view this as a valid charge by the Commissioner whose purpose is to investigate the conditions of employment alleged to be in violation of the federal statute and that liberality of discovery is an essential element in such an investigation. The action taken by the trial court here would totally eviscerate the powers of the EEOC to function under its charter from Congress. The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . § 706(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(b) provides in part:
      “Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has .been filed by a member of the Commission where he has reasonable cause to believe a violation of this title has occurred (and such charge sets forth the facts upon which it is based) that an employer ... or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, ... or labor organization . . with a copy of such charge and shall make an investigation of such charge, • provided that such charge shall not be made public by the Commission. If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

      . The employer takes the trial court’s ruling to its logical and unavoidable conclusion when it argues “mere statistics” are insufficient to support the commencement of an EEOC investigation, despite the fact that similar statistics have been consistently upheld as proving a prima facie case of discrimination. See, e. g., United States v. Hayes International, 415 F.2d 1038, 1043 (5th Cir. 1969). Thus the Commissioner would be required to show more evidence to commence his investigation than he would to invoke legal sanctions at the investigation’s conclusion. This argument is manifestly untenable and absurd.

      . It should be noted that the only charge in this case was in the following language: “I have reasonable cause to believe that the abovementioned respondents . . . have violated (here he named the sections of the act and asserted the Commission’s jurisdiction). The following practices have occurred. ‘That the respondents . . . have historically, and subsequent to the effective date of Title VII of the Civil Rights Act of 1964 dis-criminatorily restricted union membership of minority group members because of race or national origin.’ ”


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bryan Wilson TAYLOR, Defendant-Appellant.
    No. 74-2099.
    United States Court of Appeals, Fifth Circuit.
    Jan. 27, 1975.
    James L. Mitchell, Fred E. McDonald, Dallas, Tex., for defendant-appellant.
    Frank D. McCown, U. S. Atty., William F. Sanderson, Asst. U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiff-ap-pellee.
    Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

Appellant, Bryan Wilson Taylor, was tried to a jury on a twenty-seven count indictment for violations of Title 18, U.S.C., Sec. 1341, the mail fraud statute. Sixteen counts were submitted to the jury. After deliberations began, but before a verdict was returned in open court, one juror suffered a heart attack and died shortly thereafter. The district judge satisfied herself that all twelve jurors had reached agreement on counts 7, 9 and 11 prior to the illness of the twelfth juror, and thereupon accepted a verdict of guilty on these counts over appellant’s objection and entered a judgment of conviction. She declared a mistrial as to the remaining thirteen counts.

Appellant was fined $1,000 and sentenced to five years imprisonment under counts 7 and 11, to run concurrently, and received a suspended sentence, five years probation and a fine of $1,000 under count 11. We conclude that acceptance of a guilty verdict under such circumstances denied appellant his right to trial by a jury composed of twelve jurors. Accordingly, we reverse.

In greater detail, the facts were as follows. The case was submitted to the jury at 2:25 P.M. on February 13, 1974. At 11:45 A.M. the following day, during the lunch recess, juror Misenhimer had a heart attack. He was immediately removed to a hospital and pronounced dead on arrival. No verdict had then been signed in the jury room or returned in open court.

The district judge assembled the remaining jurors in the courtroom at 1:45 P.M. and inquired of the foreman whether all twelve had agreed upon a verdict on any counts prior to the time Mr. Mi-senhimer was stricken. On being informed that they had, the court instructed the foreman to retire with the jury and take a poll to determine whether the vote taken earlier was still the vote of the remaining eleven. If this proved to be so, he was to sign the verdict and return it to the court.

Appellant’s attorney objected at this stage in the proceedings, asserting that any verdict, even a favorable one, would deny Taylor his right to a twelve member jury. The objection was overruled.

The jurors returned into court five minutes later with a verdict of guilty under counts 7, 9, and 11. The court directed that a poll be taken in the courtroom. This procedure revealed that each of the eleven remaining jurors concurred in the verdict. The court inquired of the foreman whether the deceased juror had voted in accordance with the verdict of guilty and, upon being assured that he had, accepted the verdict as rendered.

While the district judge recognized that appellant was entitled to a jury of twelve, she evidently believed that this requirement was satisfied as to those counts on which agreement had been reached in the jury room prior to juror Misenhimer’s death. We disagree.

A criminal defendant in the federal courts is entitled, under the command of F.R.Crim.P. 23(b), to a trial by a twelve member jury. See the dissenting opinion of Mr. Justice Harlan in Baldwin v. New York, 1970, 399 U.S. 66, 127 n. 13, 90 S.Ct. 1886, 1920, 26 L.Ed.2d 437, 469, the companion case to Williams, note 1, supra, as well as our decision in Cooley v. Strickland Transportation Co., 5 Cir. 1972, 459 F.2d 779, cert. denied, 413 U.S. 923, 93 S.Ct. 3069, 37 L.Ed. 1045. While a defendant in a federal criminal case may waive this right — by agreeing to trial by the court or by a jury of less than twelve, or by entering a plea of guilty — he may not be deprived of the right without his express and intelligent consent. See F.R.Crim.P. 23(b); Patton v. United States, 1930, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854; United States v. Ricks, 1973, 155 U.S.App.D.C. 57, 475 F.2d 1326; Horne v. United States, 5 Cir. 1959, 264 F.2d 40, cert. denied, 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549.

The question involved on this appeal is at what point this right, when not waived, has been satisfied. We hold that a jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered. If a juror falls ill and cannot continue before this has occurred, the verdict announced in court may not be accepted as a verdict of twelve; and a criminal defendant is entitled to a new trial.

Surprisingly, we have discovered no cases directly on point. Only one, Hum-phries v. District of Columbia, 1899, 174 U.S. 190, 19 S.Ct. 637, 43 L.Ed. 944, bears on the issue before us, a fact which attests to the infrequency with which this problem arises. But we find ample directional signals to aid us in reaching a decision.

We look to the rubric that votes taken in the jury room prior to being returned in court are preliminary. See Posey v. United States, 5 Cir. 1969, 416 F.2d 545 at 554, cert. denied, 397 U.S. 946, 90 S.Ct. 965, 25 L.Ed.2d 127; Bruce v. Chestnut Farms-Chevy Chase Dairy, 1942, 75 U.S.App.D.C. 192, 126 F.2d 224, 225; California Fruit Exchange v. Henry, W.D.Pa.1950, 89 F.Supp. 580, aff’d 3 Cir., 184 F.2d 517; Finn v. Carnegie-Illinois Steel Corp., S.D. Pa.1946, 68 F.Supp. 423. This applies particularly where more than one count has been submitted to the jury, for continuing deliberations may shake views expressed on counts previously considered. Jurors are not bound by votes in the jury room and remain free to register dissent even after the verdict has been announced, though before the verdict is recorded. See Posey, supra; Bruce, supra; California Fruit Exchange, supra; Finn, supra. To uphold a verdict announced after one juror has died deprives a criminal defendant of the very real benefit of reconsideration and change of mind or heart. The district judge implicitly recognized this when she instructed the jurors to return to the jury room to make sure their earlier vote had not changed. The end result was judgment by eleven.

The government, in urging that the verdict was properly received by the district court, relies upon the Supreme Court decision in Humphries, supra, involving a collateral attack on a judgment entered in a civil damage suit. The jury in that case had been instructed by the lower court to return a sealed verdict, signed by each juror. After the jury concluded its deliberations, the verdict was signed and sealed, as directed. The foreman, however, became ill and was not present in court the following day when the sealed verdict was returned. In his stead, he sent his personal physician, to whom he had delivered the sealed verdict. The eleven jurors who were present testified that they had signed the verdict and each had witnessed the foreman’s signature. The trial court accepted the verdict. The Supreme Court upheld the district court’s refusal to vacate the judgment.

Humphries contains distinguishing factors not present in the case before us. First and foremost, Humphries involved collateral attack upon the judgment rather than a direct appeal. Dictum in the opinion indicates that, had the case arisen on direct appeal, a different result would likely have been obtained. Second, Humphries was a civil and not a criminal action. Third, deliberations in the jury room had concluded. The verdict had been signed by all twelve, sealed, and delivered to the foreman. The vote of the eleven jurors present in the courtroom did not change, as a poll revealed. The vote of the absent foreman remained unchanged, as evidenced by his delivery of the sealed verdict to his physician to be forwarded to the court. See 174 U.S. at 194, 19 S.Ct. at 638, 43 L.Ed. at 945. Fourth, the absent juror was ill, not dead, and remained available to the court even though not before the court.

The absence of all of these factors in the case before us impels us to a different result. Appellant Taylor prosecutes a direct criminal appeal. Since deliberations on all counts had not been completed no verdict had been signed by anyone when the juror Misenhimer was stricken. Finally, death unalterably removed the missing juror from the court’s reach. The district judge had no available means to determine how the juror would have stood when the verdict was actually announced.

Our decision is based on the denial of appellant’s right guaranteed by F.R.Crim.P. Rule 23(b) to a twelve member jury, not on denial of the right to ask for a poll, which cannot be exercised until a verdict has been announced. See United States v. Marr, 7 Cir. 1970, 428 F.2d 614, holding that request to poll made prior to the announcement of the verdict was premature, and that failure to request a poll after the verdict was returned constituted an abandonment of that right. The verdict itself here being invalid, we do not reach the issue of whether a criminal defendant has been denied his right to poll the jury and whether such a denial requires reversal.

What result would obtain if a juror dies after a verdict has been announced in open court but before a poll has been conducted, a situation which troubled the Supreme Court in Humphries, is not before us.

We hold then that no verdict was returned to the lower court prior to the death of the juror, Misenhimer. It was error to allow the remaining eleven to return a verdict in accordance with the preliminary vote of all twelve taken pri- or to that death. The right of trial by a jury of twelve should not have been dispensed with despite a good faith belief by the court that the absent juror, if present, would have acquiesced in the verdict as it was returned in open court by the remaining eleven jurors.

Reversed.

      . F.R.Crim.P. 23(b) reads as follows:
      (b) Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12. (emphasis added)
      Whether a federal criminal defendant is constitutionally entitled to a jury of twelve is subject to serious question by reason of the Supreme Court’s decision that a state criminal defendant has no such constitutional right, Williams v. Florida, 1970, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, because of the broad language of the holding. We do not find it necessary to address the constitutional issue, resting our decision, rather, on the violation of F.R.Crim.P. Rule 23(b).

      . Even at this point, where the verdict is announced to the court and no dissent is voiced, the verdict may not be accepted by the court if a poll taken before the verdict is recorded indicates lack of unanimity. See United States v. Sexton, 5 Cir. 1972, 456 F.2d 961; United States v. Bendicks, 5 Cir. 1971, 449 F.2d 313.

      . In United States v. Ricks, 1973, 155 U.S. App.D.C. 57, 475 F.2d 1326, though it is not entirely clear from the opinion, a juror apparently was excused after deliberations began but before agreement on a verdict had been reached. The remaining eleven jurors, directed to “resume” deliberations, returned 39 minutes later. Id. at 1327. The D.C. Circuit Court of Appeals upheld the acceptance of the guilty verdict under circumstances showing that an express, knowing and intelligent waiver of a jury of twelve had been made by the defendant, holding that the absence of a writing required by F.R.Crim.P. 23(b) was not fatal. There was no waiver involved in the case before us.

      . The Supreme Court noted that, if the lower court had committed error by accepting the verdict, it was a type of error which could be corrected only on direct appeal. 174 U.S. at 194, 195, 19 S.Ct. at 639, 43 L.Ed. at 945, 946. We observe also that the Supreme Court was of the opinion that the record before it implicated only the right to poll, not the right to a twelve member jury because it was clear that the verdict had received the assent of all twelve. See 174 U.S. at 195, 19 S.Ct. at 639, 43 L.Ed. at 946.


author: TALBOT SMITH, Senior District Judge.

text:
    CF&I STEEL CORPORATION, a Colorado Corporation, Plaintiff-Appellee, v. UNITED MINE WORKERS OF AMERICA, an unincorporated association, Individually and as representative of its members employed by Plaintiff, et al., Defendants-Appellants.
    No. 74-1031.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 21, 1974.
    Decided Dec. 10, 1974.

      Edward J. Scheunemann, Denver, Colo., for defendants-appellants.
    Thomas G. Brown, Denver, Colo., for plaintiff-appellee.
    Before HILL and McWILLIAMS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

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

   TALBOT SMITH, Senior District Judge.

The appellee herein is an employer, the CF&I Steel Corporation. It has obtained an injunction forbidding Local 9856 of the United Mine Workers of America, its officers and members (hereinafter the Union) from “engaging in a strike, work stoppage, interruption of work, or picketing at the Allen Mine of the CF&I Steel Company at Weston, Colorado, over disputes arising from employee suspensions, employee discharges, and work assignments, during the remaining life of the National Bituminous Coal Wage Agreement of 1971.” The Union appeals, arguing that the injunction is vague, overbroad, unsupported by the record, and “violative of Federal labor law.”

The Allen mine, where on June 11, 1973, a forty-hour strike began, has suffered a series of labor-management controversies. The June 11 incident involved a group of miners who had left the mine before the end of their shift to attend the funeral of a fellow miner. The employees felt that they were entitled to “portal-to-portal pay,” that is, pay from the time they entered the mine to the time they left. The company, on the other hand, took the position that they were entitled to pay only to the time when they left the “face,” that is, the specific point where they were working within the mine.

The trial court, 372 F.Supp. 846, satisfied that the strike was in violation of the employment contract between the parties and that it presented a case for equitable relief, issued a temporary restraining order halting the strike, accompanied by an order to show cause why preliminary injunction should not issue in accordance with the prayer of the complaint. Subsequent thereto, the parties stipulated that the hearing on the preliminary injunction be treated as the trial on the merits insofar as it related to the petition for injunctive relief. Fed.R.Civ.P. 65(a)(2).

Upon the trial it was established that since May of 1969 there had been eight wildcat strikes at the mine. The trial court’s conclusions with respect thereto were that

[W]e have found that six of the eight strikes have been in violation of the 1971 or the 1968 Agreement. The issue of employee discharge or suspension was involved in three of the six, and disputes having to do with work assignments were involved in two. The issues of portal-to-portal pay, medical services, vacation pay, and hoistmen’s pay arose once apiece. Because we do not find that these latter four issues are likely to recur, we conclude that no case for equitable relief has been established as to them. However, we do find that additional strikes over employee suspensions, employee discharges, and work assignments are likely to occur unless prohibited by order of this court. [Footnote added.]

The trial court heard testimony as to each of the eight strikes. As is usual in cases of this kind, there was evidence pro and eon as to each, presenting in most instances questions of motivation, justification, fault and the applicability of the contract provisions. The Union specifically briefs and argues the merits of the June 11 strike, asserting in part that CF&I was attempting to modify the basic agreement with respect to portal-to-portal pay and hence the strike was not over a local arbitrable issue. The parties initially attempted to settle the issue through the grievance procedure which, however, had reached an impasse when the strike occurred. Upon this record it is clear that the strike, as the court held, was over an arbitrable grievance and was a violation of the 1971 Agreement. The court, in view of the above conclusions, properly finding irreparable damage unless future strikes as to three types of disputes were enjoined, and that CF&I would suffer more from denial of injunctive relief than the Union from its issuance, ordered that “Local Union 9856 of the United Mine Workers of America, the officers and members of Local Union 9856 of the United Mine Workers of America, and all persons acting in concert and participation with them, be and they hereby are restrained and enjoined from engaging in a strike, work stoppage, interruption of work, or picketing at the Allen Mine of the CF&I Steel Company at Weston, Colorado, over disputes arising from employee suspensions, employee discharges, and work assignments, during the remaining life of the National Bituminous Coal Wage Agreement of 1971.”

The Union attacks the decree on various fronts. It first argues that the injunction is impermissibly vague under Fed.R.Civ.P. 65(c). We do not find it so. “[A] decree is vague when the delineation of the proscribed activity lacks particularity,” or when containing “only an abstract conclusion of law, not an operative command capable of ‘enforcement.’ ” Here we find enjoined specific concerted activity, namely, “strike, work stoppage, interruption of work, or picketing at the Allen mine.” These are terms of reasonably specific content in the “common law of the shop.” The situations, moreover, of applicability are spelled out; that is, “over disputes arising from employee suspensions, employee discharges and work assignments,” with respect to all of which areas, we note, strikes had occurred in the past and, the court found, were “likely to [recur] unless prohibited by order of this court.” We find no incapacitating vagueness in the decree.

The Union further challenges the scope of the injunction granted on the ground that it is too broad, relying on general principles of equity, the case of Boys Markets, Inc. v. Retail Clerks, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), and the Norris-La-Guardia Act, 29 U.S.C. §§ 101-115.

The Supreme Court’s standards for judging the permissible breadth of injunctions are found in NLRB v. Express Publishing Co., 312 U.S. 426, 436-437, 61 S.Ct. 693, 700, 85 L.Ed. 930 (1941). It is there held that:

The breadth of the order, like the injunction of a court, must depend upon the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indicated because of their similarity or relation to those unlawful acts which the Board has found to have been committed by the employer in the past. * * * To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past.

Exemplification of these principles is found in NLRB v. Local 282, Teamsters, 428 F.2d 994, 999 (2nd Cir. 1970), wherein the court held:

Since the Express Publishing case the courts have upheld injunctions forbidding acts against unnamed persons so long as, at the time the injunction issued, there was reason to fear that future violations would result from a pattern or plan of illegal activity already instituted, [citing cases.] In those cases where injunctions have been found overbroad, it has been held that there was no evidence that the enjoined party had proceeded in the past or would proceed in the future to violate any labor rights other than those of the particular parties named in the decree.

Here it was the conclusion of the trial court, as we have heretofore set forth, after taking testimony as to eight strikes, that six of them were in violation of the 1971 or 1968 wage agreement, that past strikes, so violative, had occurred with respect to work assignments and employee suspensions and discharges, and that such were “likely to occur unless prohibited by order of this court.” Thus, cases relied upon by the Union, in which injunctions extending to wrongful acts which had not occurred or were not likely to recur were held overly broad, are not in point as respects the situation before us.

The Union argues, also, that the injunction is overbroad under the teachings of Boys Markets, supra. This objection may be analyzed only in the light cast by past controversies and cases. There is a basic conflict presented here, and in like cases, “between the federal labor policy favoring arbitration provisions in collective bargaining agreements and the policy disfavoring injunctive relief against labor unions.” The Norris-LaGuardia Act was passed to curb what was felt to be the federal courts’ misuse of their equity powers in labor-management controversies. Section 4 of the Act, 29 U.S.C. § 104, prohibits most temporary or permanent injunctions in labor disputes. Procedural safeguards with respect thereto are also prescribed. 29 U.S.C. §§ 107-110. The countervailing influence is the encouragement of the settlement of labor disputes through the enforcement of compulsory arbitration agreements.

The trend to the enforcement of collective bargaining agreements with compulsory arbitration was “abruptly halted” by the Sinclair case. There the court held that strikes in violation of compulsory arbitration clauses in collective bargaining contracts were under the proscriptions of the Norris-LaGuardia Act and hence could not be enjoined in the federal courts.

The impact of Sinclair, however, was found to be detrimental to the best interests of both labor and management, the Boys Markets opinion pointing out that

The Sinclair decision * * * seriously undermined the effectiveness of the arbitration technique as a method peacefully to resolve industrial disputes without resort to strikes, lockouts, and similar devices. * * * We conclude, therefore, that the unavailability of equitable relief in the arbitration context presents a serious impediment to the congressional policy favoring the voluntary establishment of a mechanism for the peaceful resolution of labor disputes, that the core purpose of the Norris-LaGuardia Act is not sacrificed by the limited use of equitable remedies to further this important policy, and consequently that the Norris-LaGuardia Act does not bar the granting of injunctive relief in the circumstances of the instant case.

398 U.S. at 252-253, 90 S.Ct. at 1594.

The Boys Markets opinion resurrected the labor injunction in a narrow field. But in so doing the Supreme Court pointed out that the Norris-LaGuardia Act still retained applicability in the area, and carefully limited the scope of the opinion:

We deal only with the situation in which a collective-bargaining contract contains a mandatory grievance adjustment or arbitration procedure. Nor does it follow from what we have said that injunctive relief is appropriate as a matter of course in every case of a strike over an arbitrable grievance. The dissenting opinion in Sinclair suggested the following principles for the guidance of the district courts in determining whether to grant in-junctive relief — principles that we now adopt:
“A district Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike.” * * * (Emphasis in original.)

398 U.S. at 253-254, 90 S.Ct. at 1594.

It is clear that the opinion considered also the possibility of remedial action directed toward future conduct in a proper case, the court continuing its quotation of the Sinclair dissent:

“Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity— whether breaches are occurring and will continue or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance.” 370 U.S., at 228, 82 S.Ct. at 1346.

398 U.S. at 254, 90 S.Ct. 1583 (emphasis added).

The Union, citing Section 9 of the Norris-LaGuardia Act, argues that the complaint set forth as a specific act in Count 1 only the work stoppage of June, 1973, to which, they argue, the injunction must be confined. The record does not sustain the argument made. The complaint, while not artistically framed, gave notice in Count 2 thereof, paragraph 19, that CF&I was seeking injunctive relief against future violations.

But whatever ambiguities may have existed in or be read into the pleadings were clarified at trial. Testimony was offered, was received without objection, was weighed, and was ruled upon, concerning the entire course of past conduct of the Union. The court’s opinion reflected the state of the record when it stated that the issue for decision: “whether the eight strikes upon which the plaintiff relies in its claim for injunc-tive relief” should have been settled as prescribed by the grievance procedure. Upon this record it cannot reasonably be asserted that CF&I relied for relief on possibly only one claim pleaded in Count 1, not the eight actually presented at trial. There was here no claim of surprise, no lack of fair warning as to issues litigated. See also Fed.R.Civ.P. 15(b).

The Union urges that, since no injunctive relief was ordered by the trial court with respect to the June 11 incident involving portal-to-portal pay, it was “inconsistent” of the court, and error, to issue the injunction sought and ordered as to future conduct. The argument made represents a confusion of thought. Whether an injunction shall issue with respect to any particular stoppage, and the scope thereof, will depend upon an accommodation between the competing policies of § 301 of the Labor Management Relations Act of 1947 and § 4 of the Norris-LaGuardia Act reached in the light of Boys Markets, Express Publishing' and their progeny, as well as general equitable considerations. The injunction, if decreed, may or may not turn upon a particular incident and may or may not extend to future conduct. We find no error in the accommodation reached by the trial court after its careful review of all the facts and circumstances of the case.

In sum, what we see presented is an unlawful proclivity on the part of the Union to pursue a course of conduct in violation of the agreement of the parties and detrimental to the harmony of the relationship and the best interests of both labor and management. It may properly be enjoined within the limits found applicable. Given this pattern of conduct the precise number of violations is not critical should future repetition seem likely. We find no violation of the proper scope of injunctive relief upon this record.

The court found that neither the District nor the International levels of the United Mine Workers were involved in the strikes, particularly in view of the stipulation that in all of the strikes except that of May 1, 1969, the International, upon being notified by CF&I of the strikes, instructed the District to instruct the miners to return to work, which action the District took without delay. Upon the record made, the injunction properly ran against Local 9856, its officers and members.

Decree affirmed.

      . The action was brought in the district court by CF&I pursuant to § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185.

      . This was the third such order obtained by CF&I against the Union since June 15, 1971.

      . Specifically, the strikes were found to be in violation of the Union’s obligation not tc strike over arbitrable issues, an obligation the court held to be implicit in the arbitration clauses of the 1968 and 1971 agreements. See Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). The pertinent parts of the National Bituminous Coal Wage Agreement of 1971 are set out below; (the parallel provisions oí the Agreement of 1968 do not differ significantly):
      Article XVII — SETTLEMENT OF DISPUTES
      ******

        Section (b) Grievance Procedure
      Should differences arise between the Mine Workers and the Employer as to the meaning and application of the provisions of this agreement, or should differences arise about matters not specifically mentioned in this agreement, or should any local trouble of any kind arise at the mine, an earnest effort shall be made to settle such differences at the earliest practicable time. (The parties will not be represented by legal counsel at any of the steps below.):
      (1) By the aggrieved party and his foreman who shall have authority to settle the complaint. Any grievance which is not filed by the aggrieved party within fifteen calendar days after he reasonably should have known of such grievance shall be considered invalid and not subject to further prosecution under the grievance machinery.
      (2) If no agreement is reached, the grievance shall be taken up by the mine committee and the mine management within five calendar days of the conclusion of step 1. A standard grievance form shall be completed and jointly signed by the parties to the grievance. Such a form will be agreed upon by the parties.
      (3) If no agreement is reached, the grievance shall be taken up by the UMW district representative and a designated representative of the Employer within ten calendar days of the conclusion of step 2.
      (4) If no agreement is reached, the grievance shall be taken up by the Board within ten calendar days of the conclusion of step 3 or in discharge cases within five calendar days of notice of appeal. The Board shall consist of four members, two of whom shall be designated by the Union and two by the Employer. Neither the Union’s representatives on the Board nor the Employer’s representatives on the Board shall be the same persons who participated in steps-1, 2, or 3 of this procedure.
      (5) Should the Board fail to agree the matter shall, within ten calendar days after decision by the Board, be referred to an umpire who shall expeditiously and without delay decide said case. The decision of the umpire shall be final. Expenses and fees incident to the services of an umpire shall be paid equally by the Employer or Employers affected and by the Union.
      ******
      Article XX — MAINTAIN INTEGRITY OF CONTRACT
      The United Mine Workers of America and the Employers agree and affirm that they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the “Settlement of Disputes” article of this agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract and by collective bargaining without recourse to the courts.

      . Citing inadequate attention to roof shoring and drainage needs at the Allen mine, and the adjustments to be required at the Minnequa Steel Mill if reduction in Allen mine coal were experienced.

      . 11 C. Wright & A. Miller, Federal Practice and Procedure § 2955, at 546 (1973).

      . International Longshoremen Local 1291 v. Marine Trade Ass’n., 389 U.S. 64, 74, 88 S.Ct. 201, 206, 19 L.Ed.2d 236 (1967).

      . Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1498-9 (1959).

      . The decrees in Old Ben Coal Corp. v. Local 1487, Mine Workers, 457 F.2d 162 (7th Cir. 1972) and N. Y. Tel. Co. v. Communications Workers, 445 F.2d 39 (2nd Cir. 1971), both relied upon by the Union, lack such specificity.

      . It is clear from the context of the court’s order that the injunction does not extend to such disputes which are “national in character,” since these are exempted from compulsory arbitration under Article XX of the 1971 agreement, note 3 supra.

      . See the Court’s reaffirmation of this standard in a different factual context, Communications Workers v. NLRB, 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896 (1960).

      . NLRB v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930 (1941); United States v. Republic Steel Corp., 286 F.2d 875 (7th Cir. 1961).

      . Note, The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593 (1970).

      . 29 U.S.C. §§ 101-115.

      . See, generally F. Frankfurter & N. Greene, The Labor Injunction (1930); Vladeck, Boys Markets and National Labor Policy, 24 Vand. L.Rev. 93, 94 (1970).

      . Avco Corp. v. Local 787, UAW, 459 F.2d 968, 970 (3rd Cir. 1972). See the “Steelworkers Trilogy:” Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Note, Labor Injunctions, Boys Markets, and the Presumption of Arbitrability, 85 Harv.L.Rev. 636, 637-8 (1972).

      . The “kingpin of federal labor policy,” Brennan, J., dissenting in Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 226, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).

      . Note, Limitations on Court Issued Restraint Orders, 39 Brooklyn L.Rev. 1150, 1151 (1973).

      . Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962).

      . The effect of Sinclair was to create a new dilemma: if its holding were limited to federal courts, and injunctive relief left available in state courts, the declared need for uniformity among state and federal courts with respect to enforcement of labor contracts would be destroyed; if Sinclair were extended to state courts, it would have to be done despite “explicit evidence that Congress expressly intended not to encroach upon the existing jurisdiction of the state courts.” Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 509, 82 S.Ct. 519, 523, 7 L.Ed.2d 483 (1962).
      Monongahela Power Co. v. Local 2332, Elec. Workers, 484 F.2d 1209, 1212 (4th Cir. 1973) (footnotes omitted).

      . 29 U.S.C. § 109 limits injunctive relief to the “prohibition of such specific act or acts as may be expressly complained of in the bill of complaint * * * in such' case and as shall be expressly included in said findings of fact * * *.” (Emphasis added.)

      . “[U]nless ordered by this Court to do otherwise, defendants will in the future fail and refuse to pursue future disputes and controversies cognizable under the said Grievance Provision in accordance with procedures provided for therein.”

      . “Because we do not find that these latter four issues [inter alia portal-to-portal pay] are likely to recur, we conclude that no case for equitable relief has been established as to them.”

      . 29 U.S.C. § 185.

      . 29 U.S.C. § 104.

      . McComb v. Jacksonville Paper Co., 336 U.S. 187, 192, 69 S.Ct. 497, 500, 93 L.Ed. 599 (1949): “By its terms it enjoined any practices which were violations of those statutory provisions. Decrees of that generality are often necessary to prevent future violations where a proclivity for unlawful conduct has been shown.”

      . See Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).