author: AINSWORTH, Circuit Judge:

text:
    James J. JAMES, Plaintiff-Appellant, v. George W. DuBREUIL, Defendant-Appellee.
    No. 73-2954.
    United States Court of Appeals, Fifth Circuit.
    Sept. 12, 1974.

      Richard P. Kenney, Irving M. Wolff, Miami, Fla., for plaintiff-appellant.
    Robert C. Ward, Miami Beach, Fla., for defendant-appellee.
    Before MOORE, AINSWORTH and RONEY, Circuit Judges.

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

   AINSWORTH, Circuit Judge:

Plaintiff James brought this Suit un- • der section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5, 17 C.F. R. § 240.10b-5, and Florida statutes dealing with unlawful securities transactions. He seeks rescission and cancellation of an agreement with defendant DuBreuil for the sale of securities transferred in accordance with the agreement. Plaintiff also seeks damages and injunctive relief.

In his complaint, plaintiff alleges that defendant, an organizer and director of Inter National Bank of Miami, fraudulently induced plaintiff to sell to him 2,260 shares of common stock of Inter National for inadequate consideration. The fraudulent misrepresentation charged to defendant is that he falsely and knowingly represented to plaintiff that if plaintiff sold his shares to defendant, the shares would have greater financial value pursuant to the terms and conditions of a merger between Inter National and Royal Trust Company of Canada. The basic provisions of the merger are alleged to constitute material information withheld by defendant. The complaint further states that consideration for the securities sale was payment of $56,500, and an agreement to divide equally between the parties all consideration over and above $30 per share received by defendant upon exchange of the 2,260 Inter National shares for shares of Royal Trust. Plaintiff alleges that defendant exchanged the Inter National shares for 4,362 shares of Royal Trust stock, but has failed to account to plaintiff for his interest in the Royal Trust shares. Defendant’s answer to the complaint denied the material allegations and, as an affirmative defense, pled that the stock purchase complained of by plaintiff resulted solely from defendant’s exercising an option to repurchase Inter National shares that plaintiff had given defendant in July of 1966 when defendant sold the shares to plaintiff.

A trial was held before the district court sitting without a jury. After presentation of plaintiff’s case, the court rendered judgment for defendant.

From the evidence presented by plaintiff in the district court, we discern the following events relevant to this appeal. In a press release dated July 20, 1971, it was announced that Royal Trust Company of Canada and Inter National Bank of Miami had reached an agreement in principle pursuant to which Royal Trust would seek to acquire Inter National through merger by exchanging Royal Trust’s stock for stock of Inter National. In the late afternoon of July 21, 1971, defendant came to plaintiff’s office and suggested that if plaintiff would turn over his Inter National stock to defendant, defendant could place the stock in an organizers’ trust agreement that would considerably enhance the value of the stock in the proposed merger between Inter National and Royal Trust. Negotiations ensued, and an understanding was reached that called for plaintiff to sell to defendant 2,260 shares of Bank stock at $25 per share. Plaintiff then summoned his secretary, who prepared certain written documents relating to the sale of the stock. The basic agreement was prepared in the form of a note, wherein plaintiff and defendant agreed that upon future sale of the stock all funds received over $30 per share would be divided equally between plaintiff and defendant. Two promissory notes from defendant to plaintiff were also prepared. One note was for $10,000, representing indebtedness of defendant to a corporation acting as plaintiff’s nominee. The other note was for $56,500, an amount representing the purchase price of 2,260 shares at $25 per share. There was, however, one stumbling block. Since the merger was subject to then-existing Securities and Exchange Commission Rule 133, 17 C.F. R. § 230.133 (rescinded, effective January 1, 1973), insiders were precluded by the Rule and SEC regulations and rulings from acquiring stock for a definite interval prior to announcement of the intended merger, unless they had a written option to acquire the stock executed prior to the limitation period. In order to circumvent this proscription of the securities laws, the three documents were predated to June 29, 1971. The documents were then executed by the parties.

The records of Inter National show that 2,260 shares of its stock were transferred from plaintiff to defendant on July 21, 1971. The stock certificate issued to plaintiff and sold to defendant, however, bears the signature of plaintiff and the date of June 29, 1971. Notations by a bank employee on the certificate indicate that the certificate was surrendered to the bank on July 21, 1971.

On July 27, 1971, defendant met with plaintiff and advised him that it was necessary that a preexisting option agreement be prepared as substantiation of defendant’s prior right of purchase of the stock in order to avoid the impact of the securities laws. Plaintiff and defendant then went to the office of defendant’s attorney, and the attorney, in the absence of his secretary, drew the option by hand and directed that it be predated to July 7, 1966. Apparently, this date was chosen because it was about that time that defendant had first offered and sold to plaintiff’s nominee certain shares of Inter'National that defendant had received in the bank’s organization. The hand-drawn option was taken by plaintiff’s office, where it was typed verbatim by plaintiff’s secretary, and the document was executed by plaintiff and defendant.

On March 1, 1972, an Agreement and Plan of Reorganization between Royal Trust and Inter National was entered into, and, on June 13, 1972, Inter National entered into a merger agreement with Royal Trust. The merger and reorganization were approved at a special Inter National stockholders’ meeting, and defendant exchanged 2,395 shares of Inter National stock for 4,622 shares of Royal Trust stock.

At the trial, plaintiff claimed that, in order to induce plaintiff to enter into the sale agreement, defendant falsely represented that plaintiff, as a stockholder, could not partake of the merger since the stock he held was subject to an organizers’ voting trust that in fact did not exist and that the stock would be more valuable in defendant’s hands because he was part of the organizers’ trust. Plaintiff also asserted that defendant withheld from him the material fact that plaintiff, were he to be a dissenting shareholder, would be entitled by law to have an evaluation made of his shares and to be paid accordingly. See 12 U.S.C. § 215a(b), (c) and (d).

It was defendant’s position at trial, when called by plaintiff as an adverse witness, that there had been no backdating of the documents relating to his option to purchase the stock from plaintiff or of the documents evidencing the sale.

In dismissing plaintiff’s suit, the district court pointed out in its findings and conclusions that if the testimony given by plaintiff was not believed, then plaintiff has no cause of action. On the other hand, the court said, if plaintiff’s testimony is believed, “he was a co-conspirator with the defendant in an intended act of fraud and deceit.” Finding that plaintiff “was just as involved as defendant was,” the court concluded that plaintiff should be barred from maintaining this suit against defendant by virtue of this Court’s decision in Kuehnert v. Texstar Corporation, 5 Cir., 1969, 412 F.2d 700, which recognized the availability of the defenses of unclean hands and in pari delicto in securities fraud cases and held that their application rests in the sound discretion of the district court. See Wolf v. Frank, 5 Cir., 1973, 477 F.2d 467, 474; Clement A. Evans & Co. v. McAlpine, 5 Cir., 1970, 434 F.2d 100, 104; Wohl v. Blair & Co., S.D.N.Y., 1970, 50 F.R.D. 89. See also 1969 Duke L.J. 832, 838. Plaintiff’s appeal challenges the alternate holding applying these defenses. We hold that the district court properly applied the defenses to bar maintenance of plaintiff’s suit and affirm.

Kuehnert v. Texstar Corporation, supra, presented a situation in which defendant Rhame, then president of Tex-star Corporation, informed Kuehnert that Texstar was in the process of negotiating a merger agreement and that Texstar had made secret discoveries, as a result of which an enormous increase in the value of the stock could be expected. Rhame also told Kuehnert that he wished to keep these discoveries secret while the two of them bought enough stock to acquire working control of the company. Consequently, on the basis of this information, Kuehnert bought a substantial amount of company stock on margin in the open market, and, because the representations of secret discoveries proved to be false, he lost it all. The Court termed Kuehnert “in fact a dupe, but [one] who believes he is a tippee with a duty to disclose, and who endeavors to take wrongful advantage of his tip.” 412 F.2d at 703. The Court saw it necessary to determine, first, whether actual unclean hands and in pari delicto were defenses to recovery in private Rule 10b-5 antifraud actions, and second, whether any distinction was suggested because “Kuehnert knowing nothing, concealed nothing, and hence did not defraud his vendors.” Id. at 704. Seeing “no sufficient public interest when the only question is one of accounting between joint conspirators,” id. at 703, the Court held that actual illegal conduct should act as a bar to recovery. It further held that there was no substantial difference between an attempted fraud and a successful fraud, the absence of actual harm to Kuehnert’s vendors being a “pure fortuity.” Id. at 704.

The Court then set forth a standard by which district courts are to exercise their discretion in applying the defenses of unclean hands and in pari delicto:

The question must be one of policy: which decision will have the better consequences in promoting the objective of the securities laws by increasing the protection to be afforded the investing public.

Id. at 704. The Court reasoned that

If a tippee can sue he has, in effect, an enforceable warranty that secret information is true. It is then that he will have free rein. If what he is told is false, he can recover against his informer. If it is true, he will, of course, be liable to his vendors or vendees, but here he may well be protected by the difficulties of discovery. It may be relatively easy to trace insiders ; tippees are another matter. (Footnote omitted.)

Id. at 705. It was, therefore, concluded that the defenses were properly permitted by the district court on the facts presented because “the better choice is to leave upon persons believing themselves tippees the restraint arising from the fear of irretrievable loss should they act upon a tip which proves to have been untrue.” Id. at 705. See generally 1969 Duke L.J. 832, 839.

There are certain features of Kueh-nert that we think are compelling in determining whether the court below properly exercised its discretion. In reaching its initial conclusion that the in pari delicto and unclean hands defenses are available in the usual 10b-5 actions, the Court said in Kuehnert:

We would also have no doubt but that Kuehnert would have been in pari delicto had he in fact concealed material information from his vendors. It is irrelevant that Rhame originated the scheme. Rhame, on the assumption that what he told Kuehnert was true, would have violated his duty to the stockholders, and Kuehnert, willingly acquiescing in what seemed a mutually profitable plan, would have taken advantage of precisely that breach and made it effective against the very persons to whom protection was owed. This is not a case of mere knowledge of another party’s wrongdoing, without active participation.

Id. at 703.

The fraud of which plaintiff complains arises from a fraudulent transaction in which plaintiff was an active participant. Plaintiff voluntarily agreed to join defendant “in what seemed a mutually profitable plan” to violate the securities laws prohibiting insider trading within a certain period of an announced merger. In this sense, their fraud was directed at the same objective. But like Kuehnert, plaintiff was apparently a dupe believing himself to be a tippee. See id. at 702-703. Plaintiff’s participation in the fraudulent transaction, moreover, was vital to any possible success of the basic fraud involved. The benefit to defendant arose only through the active participation of plaintiff in the fraudulent scheme. The fault of the parties being clearly mutual, simultaneous, and relatively equal, this case is ripe for the application of the in pari delicto defense.

There is one significant factor that makes the case before us a stronger one than Kuehnert for the application of the in pari delicto and unclean hands defenses. This concerns the basic policy question about enforcement of the securities laws, which was suggested by the Kueh-nert Court as the standard for determining whether a district court properly exercised its discretion.

In Kuehnert there was a direct involvement of the plaintiff with the public investor. Kuehnert, a tippee, had gone to the open market to purchase Texstar stock. He was acting on confidential information from Rhame and did not disclose the information to his vendors, the public investors. We have no such direct involvement with the public investor on the facts before us. Whereas the Kuehnert scheme was one directed from Rhame to Kuehnert and outward to the public investor, the scheme of plaintiff and defendant involved an isolated transaction with the basic fraudulent intent of escaping the impact of the securities laws. If plaintiff was duped in the process, it is not our role to serve as referee in an accounting between coconspirators. To do so would not increase the protections afforded the investing public.

Affirmed.

      . Fla.Stat. §§ 517.21, 517.22, 517.23, 517.25, 517.27, 517.28, 517.301.

      . At the close of plaintiff’s evidence, defendant moved for what was termed a “directed verdict.” Since the court was sitting without a jury, this motion is properly denominated a motion for dismissal for insufficiency of the evidence under Fed.R.Civ.P. 41(b). See Trask v. Susskind, 5 Cir., 1967, 376 F.2d 17, 19; C. Wright, Federal Courts 428 (1970); Wright & Miller, Federal Practice and Procedure § 2371.

      . Plaintiff asserts that the district court committed reversible error because it failed to enter findings of fact and conclusions of law prior to entry of judgment in favor of defendant, as required by Fed.R.Civ.P. 52(a). We reject plaintiff’s contention. Separate findings and conclusions were entered by the court, quoted in part in text, supra page 157; and they are clearly sufficient. See (generally J. Moore, 5A Moore’s Federal Practice j[ 52.05 [1], at 2690-91 (2d cd. 1974, Supp.) :
      [T]here is compliance by the trial court with the mandate of [Rule 52] when ei-tlier a separate statement of findings of fact and conclusions of law or an opinion reveal an understanding analysis of the evidence, a resolution of the material issues of “fact” that penetrate beneath the generality of ultimate conclusions, and an application of the law to those facts.

        See also id. at ¶ 52.01 [1] n. 9, at 2691: While the degree of particularity must necessarily be gauged to the case at hand, it should be sufficient to indicate the factual basis for the ultimate conclusion.

      . See also A. Bromberg, Tippee Risks and Liabilities, 3 Rev. of Sec. Reg. 875, 880-881 (1970) ; Comment, The Demise of In Pari Delicto in Private Actions Pursuant to Regulatory Schemes, 60 Cal.L.Rev. 572, 591 (1972).

      . IVe note the following exchange between defendant’s counsel and plaintiff :
      Q. And he advised you that there was going to be a sale then and he advised you he wanted to buy your stock or enter into some agreement where you two could share in this so-called insider information?
      A. Well, we considered it a joint venture on the agreement where he had advanced money, information and knowledge, and this is how we drew up the agreement, based on a contingency, subject to my original purchase, plus his obligation to pay me back the interest, because when I originally bought the stock, I loaned him money ... to purchase this stock, and then buying it back in April of 1970 there was interest notes that were obligated by myself to [plaintiff’s nominee].
      With reference to the document evidencing the basic agreement between plaintiff and defendant, the following exchange occurred between defendant’s counsel and plaintiff:
      Q. As I read that document, Mr. James, you and Mr. DuBreuil were to divide any profits realized from the sale of the stock at a price of more than $30 a share; is that correct?
      A. That’s correct.

      . In Pearlstein v. Scudder & German, 2 Cir., 1970, 429 F.2d 1136, 1142 & n. 10, in which the in pari delicto defense was denied in a suit by a customer charging his broker with violation of regulation T, the court distinguished two cases reaching an opposite result on the ground that in those cases the type of fault attributed to the customer went “beyond knowledge of the margin requirements to concealment or misstatement of material facts.”

      . See Perma Life Mufflers, Inc. v. Intern. Parts Corp., 392 U.S. 134, 153, 88 S.Ct. 1981, 1992, 20 L.Ed.2d 982 (1968) (Harlan, J., concurring and dissenting) : “Plaintiffs who are truly in pari delicto are those who have themselves violated the law in cooperation with the defendant.” In Perma Life, the opinion of the Court indicated that the in pari delicto defense might be allowed as a defense to an antitrust action if the plaintiff was “actively supporting the entire restrictive program as such, participating in its formulation and encouraging its continuation.” Id. at 140, 88 S.Ct. at 1985.

        See also Ruder, Multiple Defendants in Securities Law Fraud Cases: Aiding and Abetting, Conspiracy, In Pari Delicto, Indemnification, and Contribution, 120 U.Pa.L.Rev. 597, 663 (1972) ; A. Bromberg, Securities Law: Fraud, SEC Rule 10b-5, § 11.5 & n. 23 (1968) ; Nathanson v. Weis, Voisin, Cannon, Inc., S.D.N.Y., 1971, 325 F.Supp. 50, 53 n. 11.

      . The court in Nathanson disagreed with this Court’s reasoning in Kuehnert and refused to apply the in pari delicto or unclean hands defense in a 10b-5 suit, finding that the tipper represented “a greater potential threat to undermining the statutory protection intended for the public investor.” 325 F.Supp. at 57.
      The issue was also well stated by the court in Nathanson v. Weis, Voisin, Cannon, Inc., S.D.N.Y., 1971, 325 F.Supp. 50, 52:
      The basic question, as this court views it, centers not about the claims asserted by plaintiffs against the defendant or the defense advanced in resistance to those claims, but rather about third parties not involved in the litigation — the investing public and what policy with respect to the allowance or disallowance of the defense would best serve to carry out the prime purpose of the securities laws to protect the investing public.

      . The principle applied in Ford v. Caspers, N.D.Ill., 1941, 42 F.Supp. 994, 997, aff’d, 7 Cir., 1942, 128 F.2d 884, is pertinent here:
      In his desire to cheat his creditors, the plaintiff complains that he has himself been cheated by his co-conspirator, the defendant. It is not the function of this Court of Equity to decide which of the conspirators out-conspired the other.

        See Kuehnert v. Texstar, supra, 412 F.2d at 704.


source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge.

license: Public Domain

text:
    Linda Roberta POND, Plaintiff-Appellant, v. BRANIFF AIRWAYS, INCORPORATED, Defendant-Appellee.
    No. 73-1372.
    United States Court of Appeals, Fifth Circuit.
    Sept. 9, 1974.

      Bob Hoblit, Odessa, Tex., for plaintiff-appellant.
    James P. Scanlan, Gen. Counsel, E.E. O.C., Washington, D. C., amicus curiae.
    R. A. Wilson, Amarillo, Tex., for defendant-appellee.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   JOHN R. BROWN, Chief Judge.

Appellant, Ms. Linda Pond, brought suit against her former employer, Bran-iff Airways, Inc., alleging unlawful discrimination against appellant because of her sex in violation of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. She alleged that in filling the position of Customer Service Agent at the Amarillo terminal, Braniff refused to consider her application for transfer and instead selected a non-Braniff male applicant, Mr. Gerald Kern, for the job. She further alleged that Braniff’s 5'8" height requirement for the position in question discriminated against women as a class and herself in particular.

After a trial to the Court, the District Judge concluded that Braniff had not discriminated in refusing to select Ms. Pond and that the minimum height requirement for a Customer Service Agent was not used to exclude Ms. Pond from consideration. Because the District Judge’s opinion does not sufficiently inform us whether he applied the correct legal standards in reaching his ultimate decision, we must reverse and remand the case for his further consideration and elaboration. We therefore need not reach the issue whether Braniff’s 5'8" height requirement was used to discriminate against Ms. Pond.

Ms. Pond (5'4", 145 pounds) had been employed for nearly a year as a reserva-tionist at Braniff’s Amarillo terminal when she was notified that her position would be phased out due to a system-wide economy drive by Braniff, and that positions comparable to hers would be made available to herself and other Amarillo reservationists in other cities. Having no desire to leave Amarillo, appellant submitted her application for the position of Customer Service Agent, a job which prior to Braniff’s economy move was filled by a woman handling predominantly secretarial duties.

At the time Ms. Pond applied, however, the job’s character had changed radically. The person who would fill the position had to be able to handle not only the desk work of a normal Customer Service Agent but also occasionally the physical labor of loading and unloading baggage and freight usually done by a cargo worker. For example, a Braniff employee-witness testified at trial that a Customer Service Agent might have to assist in the loading or unloading of up to several hundred pounds of cargo as unseemly as rock bins and caskets. It was also Braniff’s opinion that because of the size of the Boeing 727 aircraft that normally flew in and out of the Amarillo terminal, it would take a person of considerable height — in Braniff’s opinion at least 5'8" or over — to be able to reach the latches on the cargo bin doors.

After submitting her application for the position, Ms. Pond had a discussion with Mr. O. B. Robbins, the local manager of the Amarillo terminal, at which time he told her he did not think a woman could handle the job of Customer Service Agent because of the job’s strenuous lifting and reaching requirements. Shortly thereafter, a non-Braniff applicant, Mr. Gerald Kern, was hired for the position. In contrast to Ms. Pond, Mr. Kern was 6'4" tall and weighed 175 pounds.

After being denied the job, Ms. Pond filed a complaint with the Equal Employment Opportunity Commission alleging Braniff discriminated against her on the basis of sex in refusing to hire her. During the EEOC investigation, appellant was referred by Braniff to a doctor in an apparent attempt to convince both the EEOC and Ms. Pond she was not physically qualified for the more strenuous activities involved in being a Customer Service Agent. The doctor’s opinion, however, was that Ms. Pond was physically fit and “could lift within her ability”, although at trial he did state that for the particular position in question as between herself and Kern Ms. Pond was not the better qualified applicant.

Ms. Pond likewise filed a grievance under the collective-bargaining agreement in force between Braniff and her union, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. The grievance was based on a clause in the union contract which would presumably give Ms. Pond, as a Braniff employee with seniority, an absolute right to the job of Customer Service Agent over a non-Braniff applicant if Braniff determined she were fit and able to handle the job. The results, if any, of arbitration areas of yet unknown.

At trial it was stipulated that although provisions of the union contract would not be considered as a basis in themselves for the discrimination suit, they could have an evidentiary bearing and relevancy to the issue of whether or not there had been any discrimination.

After hearing the evidence, the District Judge concluded in his Memorandum Opinion that Braniff did not discriminate in summarily hiring Mr. Kern because he was bigger and thus ipso fac-to better able to handle the physical requirements of being a Customer Service Agent, and that the 5'8" requirement was not used to exclude Ms. Pond from consideration for the job.

To begin with, we are not at all certain that in reaching his conclusion of non-discrimination, the District Judge either applied the correct legal standards as required by Title VII or fully considered all the ramnifications of his decision. There are too many questions left unanswered by the Memorandum Opinion that must be resolved before we as an appellate court can pass on either the correctness of the conclusions of law or the sufficiency of the evidence in general. In the remainder of this opinion, therefore, we undertake to elucidate what we consider to be the correct legal framework within which the District Judge should view this case on remand as well as some of the problems and inconsistencies we find in the simple viewing of this particular fact situation as posing the sole question whether it was discriminatory under Title VII to select a larger male over a smaller female for a job involving heavy lifting.

We begin our analysis by recognizing that the situation presented by this case is certainly a novel one upon which few courts have had an opportunity to rule. The bulk of sex discrimination cases in our Circuit have dealt with situations where an employer, in attempting to exclude a woman or women as a class from a particular position, has relied solely on the Bona Fide Occupational Qualification under § 42 U.S.C.A. § 2000e-2(e)(1) as a defense to their actions. In the present situation, however, Braniff chose specifically not to rely upon the very narrowly construed BFOQ exception, but rather asserts that no discrimination took place at all.

Of course it is true, as urged by Braniff, that where an employer can demonstrate no discrimination in the selection or advancement of employees, but rather that the employer in the best of faith merely weighed each person’s talents then choosing the man over the woman (or the woman over the man), no case is made out under Title VII. But the inquiry does not necessarily stop here. Courts must be extremely careful to determine that the reasons given for selecting a male applicant over a female applicant are not simply a ruse disguising true discrimination. Courts must further carefully scrutinize the employer’s explanations for its conduct once the aggrieved employee has proved a prima facie case of discrimination. If the capacity or competency distinction upon which the employer’s selection is based inheres in the nature of an employee as a man or a woman, or if the employer in any way permits stereotypical culturally-based concepts of the abilities of people to perform certain tasks because of their sex to creep into its thinking, then Title YII will come to the employee’s aid. The line that must be drawn is a fine one — because interpreting an employer’s motives on the basis of its actions is at times hazardous, especially when there exists potentially valid and seemingly plausible business explanations as to such actions which in fact mask a true intent to discriminate.

Where the only basis in a record for finding that a male employee-applicant was more qualified than a female are factors directly relatable to sex — the attributed capacity of a male to lift bigger and better boxes — then we are not at all certain that a fact finding of nondiscrimination can stand when no objective tests were given either applicant to determine their physical abilities to perform the job in question. We do not at all intimate that in every instance where an employer must select between a male and female employee for a position involving heavy lifting, that the employer must necessarily objectively determine their physical capacities. The lack of such an objective determination, however, may ultimately be considered as evidence of the employer’s good or bad faith and the use of a permissible or non-permissible criteria.

We are troubled a good deal by the interplay of the union contract granting Ms. Pond absolute seniority rights for this job if Braniff determined she were qualified accepting its interpretation at face value. We must take into account as the District Court indicated, the union contract since it may establish the special status of an employee by virtue of its contractual terms and thereby form a basis from which a deviation could indicate an intent to discriminate. Nonetheless, no mention is made of the union contract or Ms. Pond's rights thereunder in the District Court’s Memorandum Opinion. If it were admitted as it seems to be that Ms. Pond had an absolute seniority right under the contract to the job of Customer Service Agent should Braniff determine she were qualified, Braniff’s actions in regard to summarily rejecting Ms. Pond are difficult to explain. This leads us to another facet of the same problem.

On the one hand, Braniff chooses not to rely upon the BFOQ which, if properly proven, would permit Braniff justifiably to reject a female applicant for a position involving extremely heavy lifting based solely on the fact that she was a female. Yet, on the other hand, from our reading of the record, Braniff offers no explanation as to why Ms. Pond was never given a chance to demonstrate she was qualified and have Braniff evaluate more than just her superficial credentials of being a 5'4", 145 pound female. Braniff comes dangerously close, in our opinion, to relying on the BFOQ without having to actually assert or prove it.

In sum, we think that the District Judge did not go far enough in his analysis of the case by stating that Braniff did not discriminate in choosing a larger and heavier male for the job. We have set forth in our opinion what we consider to be the correct legal standards as well as additional factual considerations for the District Court to ponder on remand. It also goes without saying that once Ms. Pond has proved a prima facie case of discrimination, the burden must shift to Braniff to either disprove discrimination or demonstrate its actions were covered under the BFOQ defense.

We therefore reverse and remand this case for reconsideration, redetermination, and the making of appropriate findings and conclusions in light of this opinion, on the present record or on a supplemental record as the parties think is wise or as directed by the District Court.

Reversed and remanded.

      . According to Braniff’s official job description, the position of Customer Service Agent includes Departure Lounge Agents, Ramp Agents, Forms Agents and Ticket Counter Agents. The reason being that in a station the size of Amarillo, the Customer Service Agents must perform all of these duties. Customer Service Agents at Amarillo will also perform any or all duties listed under the heading of Cargo Serviceman, whenever Cargo Servicemen are not available or those available require assistance to complete the work on time. Their duties and responsibilities include, but are not limited to the following:
      1. Plan ground equipment need and have it in place before the aircraft arrives.
      2. Guide the aircraft in and out with care; get assistance if the ability to maneuver aircraft in close quarters is questionable.
      3. Prepare loading plan for local bags, mail and cargo on; watch bin loading to preserve order and sequence of removal as required by downline stations.
      4. Monitor all functions to ensure that no element of ramp service is lagging. Watch the clock, advise the ramp service people how many minutes until de- ■ parture.
      5. Keep in touch with the hostess/purser for last minute needs, watch the flight deck for requests or signals, keep the departure lounge agent informed.
      6. Call for boarding as soon as the cabin can accept passengers.
      7. Give the start engines signal so that the flight can roll out on time.
      8. Guide aircraft out from the blocks carefully.
      9. Furnish load information at once to Operations Agent so the Flight Dispatch report can be on its way to the next station before the flight is airborne.
      10. Position the ramp equipment and make ready for the next arrival.
      11. These Agents are also responsible for connecting the ground power unit to the aircraft, plus attaching the air start cart if the APT! on the aircraft is inoperative.
      12. The Agent must make certain that all flight coupons have been lifted — that all people in the lounge area are for flight arriving/departing.
      13. Keep in touch with ramp agent for flight being handled — boarding passengers as soon as aircraft cabin can accept them.
      14. Estimate standbys, call for extra meals, if required, as soon as the need is anticipated.
      15. The Agents will be required to clean the cabin of overnight aircraft if cleaners are [sic] cargo servicemen are not available. In stations that do not have cargo servicemen or cleaners, then the Customer Service Agents will be required to clean the cabin or turn around overnight aircraft.
      16. In stations that do not have cargo servicemen or cleaners, the Customer Service Agents will be required to clean the ramp equipment plus all Braniff areas such as Departure Lounges, offices, etc.

      . Article 7 — PROMOTIONS, ASSIGNMENTS, AND DISPLACEMENTS:
      All promotions, assignments, and displacements, made under tlie provisions of this Agreement, shall be based on seniority, fitness and ability. If fitness and ability is sufficient to perform the work in a satisfactory manner, seniority shall prevail. “Fitness and ability” shall be determined by the Company, subject to the right of appeal by an employee when the Company has acted either arbitrarily or capriciously. The word “sufficient” is intended to more clearly establish the right of the senior employee to bid a new position or vacancy where two or more employees have adequate fitness and ability.

      . THE COURT:
      . . . I am going to rule right now that even though Plaintiff is not trying to sue under a contract, that this contract is evidentiary or has a bearing and relevancy on the issue of whether or not there has been sex discrimination although I recognize it is not the theory of recovery and unless the plaintiff intends to introduce the contract as a basis for recovery, I will overrule and permit him to talk about it so long as it shows what influence it might have on any discrimination that might be present in the case.
      MR. IIOBLIT: [Counsel for (Ms.) Pond]
      Yes, Your Honor. In other words, the Union contract is merely for stating personnel rules and mainly as concerns the seniority that this lady would have.
      THE COURT:
      How the rules applied to her one way and somebody else in another, something of that order.
      MR. I-IOBLIT:
      This is correct.

      . The Memorandum Opinion reads in pertinent part:
      The requirements for the job therefore show a need for someone who has the ability to 1) perform routine office work, 2) lift weights of considerable degrees, and 3) reach an elevated cargo hatch for opening, loading and unloading the planes.
      The qualifications that each individual applicant in this case possessed to meet these requirements were 1) one (Mrs. Pond) was five feet four inches compared with another (Mr. Kern) who was six feet four inches; 2) Mrs. Pond weighed 140 pounds and Mr. Kern 175 pounds.
      Based on the requirements for the job and the duties to be performed and in light of the qualifications each possessed, it cannot be said that Braniff made a choice based on sex in choosing Mr. Kern. The Court specifically finds that Mr. Kern was chosen by Braniff solely because Braniff felt that he could perform the job better, and that the choice was not made because of his sex or her sex.
      Plaintiff contends, however, that she must be given the opportunity to demonstrate her ability to perform the job, and points to Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) in support of her contention. Bowe, however, is not in point. In Bowe women employees were restricted to jobs that required lifting of less than 35 pounds, while men were allowed to bid on any job. The Court held that Colgate had to allow women to demonstrate their ability to perform jobs that required lifting over 35 pounds. What Colgate had, in effect, was a dual system of job bidding for its employees — one for men and another for women. This was not the case with Braniff. Braniff ap-

        plied the same criteria to both the plaintiff and Mr. Kern, and a comparison of each of their individual qualifications and characteristics resulted in a reasonable decision to hire Mr. Kern. In other words, one standard was applied to both equally. Braniff, therefore, was not required to give Mrs. Pond the opportunity to demonstrate her ability to perform the job, but was entitled to choose the applicant it felt would more satisfactorily perform the assigned duties.
      Plaintiff also points to a 5'8" height requirement that Braniff had on a system-wide basis for this position as being discriminatory toward women in general and Mrs. Pond in particular. The evidence shows that the 5'8" requirement was not used (at the time the position in question was filled) to exclude Mrs. Pond from the job. Even though Braniff officials felt that Mrs. Pond was not as qualified as Mr. Kern to handle the job, it cannot be inferred that since she was not 5'8" she could not have the job. In choosing between the two, the lifting requirements would be enough to reasonably preclude Mrs. Pond from the position. The height requirement of 5'8" was not used in this ease in a discriminatory manner against Mrs. Pond.

      . 42 U.S.C.A. § 2000e-2 . . .
      (e) Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, * * * on the basis of Ms * * * sex, * * * in those certain instances where * * * sex * » * is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, * * * (Emphasis added.)

      . See, e. g., Weeks v. Southern Bell Telephone & Telegraph Co., 5 Cir., 1969, 408 F.2d 228; Phillips v. Martin Marietta Corp., 5 Cir., 1969, 416 F.2d 1257 (en banc, Brown, Chief Judge, dissenting) rev’d per curiam, 1971, 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613; Rosenfeld v. Southern Pacific Co., 9 Cir., 1971, 444 F.2d 1219.

      . Phillips v. Martin Marietta Corp., 1971, 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613; Rosenfeld v. Southern Pacific Co., 9 Cir., 1971, 444 F.2d 1219. An analogy can also appropriately be drawn to the Equal Pay Act which jiermits an employer to discriminate between the wages paid to a male and female employee if the employer can prove their respective jobs involve unequal skills, effort, working conditions, or responsibilities. 29 U.S.C.A. § 206(d)(1). See Shultz v. First Victoria National Bank, 5 Cir., 1970, 420 F.2d 648; Hodgson v. Brookhaven General Hosp., 5 Cir., 1970, 436 F.2d 719.

      . Cf. Bowe v. Colgate-Palmolive Co., 7 Cir., 1969, 416 F.2d 711.

      . Like legal and judicial opinions the doctor’s opinion (see Text pp. 163 and 164 supra) really stated the problem, not an answer to it. To “lift within her ability” does not indicate what that ability is in terms of likely lifts on this particular job.

      . Of course, it has on many occasions been stated that the interpretation and application of a union contract is within the sole province of the arbitrator. Alexander v. Gardner-Denver Co., 1974, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147; United Steel Workers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424, and we in no way mean to imply that courts may usurp this well-established prerogative.

      . It is significant that Braniff did not challenge Ms. Pond’s “fitness and ability”. (See note 2 supra).

      . See note 5, supra.

      . A situation similar to the one at bar oe-curred in Weeks v. Southern Bell Telephone & Telegraph Co., 5 Cir., 1969, 408 F.2d 228, where the employer, operating under a union contract requiring the senior-most bidder to be awarded an available job if qualified, rejected the application of a woman employee for the position of switchman in favor of a male employee with less seniority. Southern Bell in this instance chose not to challenge the charge of discrimination, but instead relied upon the BFOQ which was in turn based on a state law prohibiting women from lifting over 30 pounds. In rejecting the employer’s defense, we stated that we would construe the BFOQ very narrowly with a great burden on the employer to justify its use, and that the assumption that all women could not lift over 30 pounds was in this instance unproven and unfounded except on the unrealistic basis of romantic paternalism. Thus, in view of the Weeks decision, Braniff may have chosen an untested course in choosing to challenge the initial charge of discrimination rather than relying upon the BFOQ defense.


author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. ROHM & HAAS COMPANY and Rohm & Haas of Texas, Incorporated, Defendants-Appellants.
    No. 73-1727.
    United States Court of Appeals, Fifth Circuit.
    Sept. 9, 1974.
    Rehearing Denied Oct. 30, 1974.

      B. D. McKinney, Larry B. Feldcamp, Houston, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., Steve Rice, James R. Gough, Asst. U. S. A ttys., Houston, Tex., John L. Hills, Atty., Kent Frizzell, Asst. Atty. Gen., Carl Strass, Robert L. Klarquist, Attys., Dept, of Justice, Washington, D. C., Jack Shepherd, Chief Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before TUTTLE, GEWIN and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

This is a continuous discharge pollution case filed by the Government under the 1899 Refuse Act against Rohm and Haas Company, which has a large chemical manufacturing plant with a single outfall through which its treated waste water goes into the Houston Ship Channel. The District Court entered an in-junctive order which set certain limitations upon the discharge by the Company of various pollutants, such as ammonia, chemical oxygen demand, cyanide, chromium, nickel, oil and grease, into the Houston Ship Channel, and totally enjoined the barging of such wastes to sea. 353 F.Supp. 993 (S.D.Tex.1973). The injunction has been stayed pending this appeal which raises difficult issues as to the relationship between the old Refuse Act and the new Water Pollution Control Act.

On appeal the Company argues (1) that the Federal Water Pollution Control Act Amendments of 1972 prevent prosecution of this Refuse Act suit; (2) that the doctrine of primary jurisdiction should be applied and this case remanded to the Environmental Protection Agency for the initial determination of effluent limitations; (3) that the Refuse Act does not confer jurisdiction over waste disposal on the high seas; (4) that the District Court’s order is deficient under Federal Rules of Civil Procedure 52(a) and 65(d); and (5) that even if the Federal Water Pollution Control Act Amendments do not bar this action, they provide the proper legal standard to be applied in establishing effluent limitations for the Company’s plant.

Except for modifying the injunction so that it will not override subsequent agency action under the new Act, and striking that portion of the injunction that applies to barging wastes to sea, which we find outside the scope of the Refuse Act, we affirm the action of the District Court. We discuss the arguments of appellant seriatim.

I.

Rohm and Haas argues that it cannot be in violation of the Refuse Act, 33 U.S.C.A. § 407, because it has applied for a permit to discharge wastes into the Houston Ship Channel, and section 402(k) of the Federal Water Pollution Control Act Amendments, 33 U.S.C.A. § 1342(k) (Supp.1974), specifically provides that “in any case where a permit for discharge has been applied for,” there can be no violation of the Refuse Act until December 31, 1974. It contends that on this basis the suit should have been dismissed. A savings clause, however, provides that the amendments, enacted after this suit was filed, but before it was tried, shall not cause abatement of any suit commenced prior to the enactment of the law. The issue for determination is whether the scope of the savings clause includes this kind of suit.

The savings provision provides:

No suit, action, or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of this Act shall abate by reason of the taking effect of the amendment made by this Act.

86 Stat. 896, note to 33 U.S.C.A. § 1251 (Supp.1974).

The savings clause thus preserves two classes of pending actions brought by or against the Administrator or any other officer or employee of the United States: (1) those actions brought by or against them in their official capacities; and (2) those actions brought by or against them in relation to the discharge of their duties under the old FWPCA. Refuse Act cases fall into the first class. Such a reading of the savings clause is consistent with the rule that savings clauses are to be broadly construed. See De La Rama S.S. Co. v. United States, 344 U.S. 386, 389-390, 73 S.Ct. 381, 97 L.Ed. 422 (1953); NLRB v. National Garment Co., 166 F.2d 233, 237 (8th Cir. 1948); Quirk v. United States, 161 F.2d 138, 143 (8th Cir. 1947).

The correctness of the above interpretation of the savings clause is supported by the relevant legislative history. In the course of the debates prior to passage of the 1972 Amendments, several members of Congress expressed concern that section 402(k) might be construed to terminate pending Refuse Act litigation. They were assured by the bill’s managers that section 4(a) was intended to and would save all Refuse Act suits then pending in the courts.

Rohm and Haas contends that these statements should be disregarded as attempts by certain legislators to subvert the democratic process of legislation by fabricating a legislative history after failing to obtain statutory language consonant with their wishes. The Company points out that every time the savings provision was quoted to demonstrate its applicability to Refuse Act suits, the words “or in relation to the discharge of his official duties under the Federal Water Pollution Control Act” were deleted. The Company also points out that section 4(a) originated in H.R. 11896, the House version of the bill, and passed both houses after adoption by the House and Senate Conferees without change in language. Rohm and Haas urges that the intent of the House Committee on Public Works, which drafted the savings provision originally, should have special significance in the legislative history. The report accompanying H.R. 11896 by that Committee limited the savings clause to “actions commenced by or against the Administrator in the carrying out of his responsibilities under the Federal Water Pollution Control Act.” H.R.Rep.No.92-911, 92d Cong., 2d Sess. 141 (1972).

The intent of the original authors is not controlling. We must search for congressional intent at the time of passage. Although the words of the savings clause did not change after conception, their meaning apparently did as the bill moved through the legislative process. The House Committee’s narrow reading of the provision, restricting it to FWPCA actions, was abandoned by the Conference Committee. “Section 4 of the House amendment provides that pending suits, actions, and other proceedings are not to abate by reason of the amendments made by this Act.” Conf.Rep.No.92-1236, 92d Cong., 2d Sess. (1972), 1972 U.S.Code Cong. & Admin.News, p. 3829. The bill’s managers quoted only so much of the provision as was relevant to whether the savings clause applied to Refuse Act suits. The language omitted, referring to FWPCA duties, was unnecessary to the resolution of the question posed. In any event, no member of the Conference Committee took the floor to dispute the managers’ interpretation of the Committee’s intent. Finally, it is significant that the Senate Committee on Public Works reported that only one FWPCA enforcement case had reached the courts in the more than twenty years since that Act was passed in 1948. S.Rep. 92-414, 92d Cong., 1st Sess. (1971), 1972 U.S.Code Cong. & Admin.News, p. 3672. It is unlikely that legislators, aware of the nonexistence of FWPCA actions, would have concerned themselves about saving those actions and inconsistently have permitted abatement of numerous cases under the Refuse Act.

Other federal courts have held that the 1972 Amendments had no effect upon pending litigation under the Refuse Act. United States v. Ira S. Bushey & Sons, 363 F.Supp. 110 (D.Ct.), aff’d mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974); United States v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973); United States v. Consolidation Coal Co., 354 F.Supp. 173 (N.D.W.Va.1973); see United States v. Kennebec Log Driving Co., 356 F.Supp. 344 (D.Me.), vacated and remanded on the merits, 491 F.2d 562 (1st Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974).

Rohm and Haas, reading the savings provision narrowly, would limit it to actions brought by “the Administrator or other officer or employee of the United States.” The Company perceives this suit as outside the savings clause because it was brought by the United States. The short answer to this contention is that the suit was authorized by the Assistant Attorney General, Lands and Natural Resources Division, and the United States Attorney for the Southern District of Texas, upon the recommendation of the Administrator of the Environmental Protection Agency. The complaint was signed by the Chief Assistant United States Attorney for the Southern District. Each of the above officials is an “officer or employee of the United States.” Responsibility to enforce the Refuse Act lies with the Department of Justice and the United States attorneys. 33 U.S.C.A. § 413; see Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-88 (2d Cir. 1972). Under these circumstances, this suit brought in the name of the United States is within the ambit of the savings clause. Cf. United States v. Burns, 54 F. 351, 355 (C.C.D.W.Va.1893); United States v. Interlake Steel Corp., 297 F.Supp. 912, 914 (N.D.Ill.1969).

II.

Rohm and Haas asserts that the plaintiff should first seek relief from an expert administrative body, the Environmental Protection Agency (EPA), before being allowed to proceed against Rohm and Haas in a judicial proceeding. It would have the Court apply the so-called doctrine of primary jurisdiction: that in cases raising issues of fact not within the conventional experiences of judges, or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should first determine some aspects of the proceeding. United States v. Western Pacific R.R., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952). See generally K. Davis, Administrative Law Treatise §§ 19.01-.09 (1958, Supp.1970).

This argument fails for several reasons. First, the question in this case is not what standard of discharge EPA may eventually permit, but rather what quantities of industrial wastes, if any, an equity court should permit a Refuse Act violator to discharge pending final EPA action on the Company’s application for a permit. Cf. United States v. Joseph G. Moretti, Inc., 478 F.2d 418 (5th Cir. 1973).

Second, the scientific, technical, and complex factual issues in the case bear on the kind of applicable relief that should be granted, rather than on whether the defendant is in violation of the Act. Discharges in violation of the Refuse Act may be completely halted by injunction and no reason appears why lesser steps may not be taken. See United States v. Crow, Pope & Land Enterprises, Inc., 474 F.2d 200 (5th Cir. 1973); United States v. Kennebec Log Driving Co., 491 F.2d 562, 565 (1st Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972); United States v. Ira S. Bushey & Sons, 363 F.Supp. 110 (D.Vt.), aff’d mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3182, 41 L.Ed.2d 1146 (1974); United States v. Lindsay, 357 F.Supp. 784 (E.D.N.Y.1973); United States v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973); Natural Resources Defense Council v. Grant, 355 F.Supp. 280 (E.D.N.C.1973); United States v. Consolidation Coal Co., 354 F.Supp. 173 (N.D.W.Va.1973); United States v. Kentland-Elkhorn Coal Corp., 353 F.Supp. 451 (E.D.Ky.1973); United States v. Asbury Park, 340 F.Supp. 555 (D.N.J.1972); United States v. Armco Steel Corp., 333 F.Supp. 1073 (S.D.Tex.1971); Bass Anglers Sportsman’s Soc’y v. Scholze Tannery, Inc., 329 F.Supp. 339 (E.D.Tenn. 1971)United States v. Florida Power & Light Co., 311 F.Supp. 1391 (S.D.Fla.1970); Cf. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). The moulding of equitable relief, even in highly technical matters, is the proper concern of the courts.

Third, we agree with the United States that the data involved here is not inherently more complex than evidence routinely considered in antitrust suits, patent actions, and rate-setting adjudications.

Fourth, the agency to which Rohm and Haas would have us turn was very much a part of this litigation. EPA’s experts were consulted and testified in detail and at length throughout this proceeding. The trial court was advised of EPA’s position on the relevant issues.

Fifth, even under the 1972 Amendments the enforcement provision, FWPCAA § 309, 33 U.S.C.A. § 1319 (Supp.1974), states that the Administrator may bring a civil or criminal action in District Court to enforce the provisions of the Act. Absent from this provision is any indication that violations of the Refuse Act or the FWPCA must be considered in administrative proceedings prior to initiation of judicial action.

Because the issue is what an equity court should do pending EPA action, however, the District Court’s order must be modified so as not to govern the Company’s conduct after a permit has been issued. A polluter discharging wastes in accordance with the terms and conditions of an NPDES permit is not in violation of the Refuse Act. See FWPCAA § 402(a)(4), 33 U.S.C.A. § 1342(a)(4) (Supp.1974). The decree should be effective only as long as Rohm and Haas remains in violation of the Act. In contrast to the regulations implementing the earlier U.S. Army Corps of Engineers Refuse Act Permit Program, the EPA rules governing the National Pollution Discharge Elimination System do not require that the permit include limitations embodied in the resolution of a civil action under the Refuse Act. Compare 33 C.F.R. § 209.131(d) (4) (1973) with 40 C.F.R. §§ 125.11, 21 — .24, .42 (1973).

We therefore remand to the District Court for appropriate modification consistent with this decision.

III.

Rohm and Haas seeks a reversal of the District Court’s injunction from further barging to sea of waste materials, which is contained in the following three lines of the Court order:

Barging to Sea of Untreated Waste and Mother Liquors:

None after the date of this judgment. Rohm and Haas has been disposing of ammonium sulfate mother liquor, a waste material, in the Gulf of Mexico approximately 100 to 125 miles from the coast of Texas since January 1969.

The Government twice tried to bring the bargaining issue directly into the case by amending its complaint, but the District Court denied both motions to amend, once before trial and once after trial. Nevertheless, the District Court enjoined Rohm and Haas from further deep sea barging without any comment as to the reason or legal basis for the ruling. In fact, there are no findings of fact or conclusions of law on the barging issue which are required under Federal Rule of Civil Procedure 52(a). Accordingly, the order as to deep sea barging must be vacated in view of the District Court’s failure to comply with Rule 52(a). Lettsome v. United States, 434 F.2d 907 (5th Cir. 1970); Acme Boat Rentals, Inc. v. J. Ray McDermott & Co., 407 F.2d 1324 (5th Cir. 1969); Mladinich v. United States, 371 F.2d 940 (5th Cir. 1967).

The Refuse Act under which this suit was brought applies only to discharges of refuse matter “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.” 33 U.S.C.A. § 407. Until shortly before the passage of the FWPCAA, the U. S. Army Corps of Engineers, charged with administering the Refuse Act, apparently took the position that ocean waters were not covered at all by that Act. See 33 C.F.R. § 209.260 (1971). In September 1972, the Corps broadened its interpretation, but only to include ocean waters within the three mile territorial limit.

The navigable waters of the United States over which Corps of Engineers regulatory jurisdiction extends include all ocean and coastal waters within a zone 3 geographic (nautical) miles seaward from the coast line. Wider zones are recognized for special regulatory powers, such as those exercised over the Outer Continental Shelf.

33 C.F.R. § 209.260(k)(1) (1973).

The Government concedes the Refuse Act by its terms does not touch upon the barging of waste material to sea. There are no findings of fact which would support the District Court’s order under any other theory, such as some kind of federal common law of nuisance or water pollution, the necessary implementation of an effective decree under the Refuse Act, or the interstitial use of equitable power to protect the environment which is asserted by the Government on authority of Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), and United States v. Ira S. Bushey & Sons, 346 F.Supp. 145 (D.Vt. 1972).

The Government argues that we could support the limitation imposed on Rohm and Haas with respect to deep sea barging under the Marine Protection, Research, and Sanctuaries Act of 1972, which became law on October 23, 1972. Pub.L. No. 92-532, 33 U.S.C.A. § 1401 et seq. (Supp.1974), as amended, (Supp. June 1974). This legislation regulates the transportation of material for dumping into ocean waters. Section 102, 33 U.S.C.A. § 1412 (Supps. 1974 & June 1974), the Environmental Protection Agency Administrator is authorized to issue permits under certain conditions. The following factors are to be considered: the need for the proposed dumping; its effect on human health and welfare, including economic, esthetic, and recreational values; its effect on fisheries resources, plankton, fish, shellfish, wildlife, shore lines, and beaches; its effect on marine ecosystems; the persistence and permanence of the effects of the dumping; the effect of dumping particular volumes and concentrations of materials; alternate locations and methods of disposal or recycling; and the proposed dumping’s effect on alternate uses of oceans.

This argument was not treated by the trial court and we will not consider it here. We will remand the case for such consideration as the District Court deems appropriate. In view of the complex and technical nature of the factors to be evaluated as set forth in section "102, the District Court may well want to consider whether the decision as to ocean dumping should be left initially to the Environmental Protection Agency under the doctrine of primary jurisdiction.

In any event, we vacate that portion of the injunction prohibiting barging to sea and remand for such further proceedings as the District Court may deem appropriate in the light of our decision.

IV.

Rohm and Haas also argues that the District Court’s order, insofar as it establishes limitations on discharges into the Houston Ship Channel, does not comply with Federal Rules of Civil Procedure 52(a) and 65(d).

In cases tried without a jury, Rule 52(a) mandates findings of fact and conclusions of law sufficiently detailed and exact to indicate the factual basis for the District Court’s ultimate conclusion. Lettsome v. United States, 434 F.2d 907 (5th Cir. 1970); Acme Boat Rentals, Inc. v. J. Ray McDermott & Co., 407 F.2d 1324 (5th Cir. 1969). Although the rule refers only to the granting or refusing of interlocutory injunctions, the language “all actions tried upon the facts without a jury” encompasses suits in which permanent injunctions are issued. Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967); Chas. Pfizer & Co. v. Zenith Laboratories, Inc., 339 F.2d 429 (3d Cir. 1964); see Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508 (5th Cir. 1969).

Rohm and Haas contends that the individual effluent limitations established by the Court are not supported by findings. This is a Refuse Act suit. The findings of fact requisite for relief are that the Company discharged refuse matter into a navigable water of the United States. These findings the District Court made. They lead to the legal conclusion that the Company violated the Refuse Act. Rule 52(a) is thus satisfied.

Rule 65(d) prescribes the form and scope of injunctions. The limits established by the Court are unquestionably specific. No discharges are permitted in excess of given amounts of the various pollutants, expressed in terms of pounds per day. The question is whether the District Court adequately stated reasons for the injunction, as is also required by the rule. It is apparent from the Court’s references to the harmfulness of the pollutants and to the continuous nature of the discharges that an injunction is necessary to prevent further harm. It has been held that a finding of threatened irreparable injury satisfies the reasons requirement of Rule 65(d). Pennsylvania R.R. v. Transport Workers Union, 278 F.2d 693 (3d Cir. 1960); Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190 (9th Cir. 1953); Smotherman v. United States, 186 F.2d 676 (10th Cir. 1950); In re Rumsey Mfg. Corp., 9 F.R.D. 93 (W.D.N.Y.), rev’d on other grounds sub. nom. McAvoy v. United States, 178 F.2d 353 (2d Cir. 1949).

V.

Rohm and Haas argues in the alternative that the District Court’s injunction, if considered procedurally adequate, must be set aside because the Court failed to apply the proper legal standards which it contends should be those established by the FWPCAA to govern the issuance of NPDES permits. Although the savings clause does not prohibit the Amendments from affecting pending actions, it does not require application of the FWPCAA standards to pending Refuse Act suits.

Rohm and Haas argues, however, that if the FWPCAA standards are not applied in establishing effluent limitations it will be denied equal protection of the laws, “or perhaps more accurately an equal right to violate the law.” United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 431 n. 47 (5th Cir. 1973). The Company points out that essentially all other polluters, including its neighbors on the Houston Ship Channel, will have their effluent limitations determined under the amended FWPCA while it will not. The number of cases prosecuted by the Justice Department under the Refuse Act negates any contention that discrimination in the form of a vendetta is being practiced against Rohm and Haas alone. The difference between the standards applied to defendants in Refuse Act suits brought before the enactment of FWPCAA and that applied to other polluters is the result of the savings clause. Whenever legislation changes a legal standard but saves pending actions, there is apt to be differing treatment of those otherwise similarly situated. The difference in treatment does not rise to the constitutional level of a denial of equal protection. In any event, the effect of the District Court’s decree will not survive the issuance of a permit, which will depend upon the application of FWPCAA standards to Rohm and Haas equally with all other applicants.

Conclusion

The Court’s injunction is affirmed as to the discharge into the Houston Ship Channel but remanded for modification to limit the duration of the injunction to that period prior to the proper issuance of a permit, and is vacated and remanded insofar as it enjoins the barging of waste material to sea.

Affirmed in part, vacated in part, and remanded.

      . Although the Refuse Act is explicitly preserved by section 511(a)(2)(B) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C.A. § 1371(a) (2) (B) (Supp.1974), its role is significantly diminished in the new regulatory structure. Section 402 of the amended FWPCA, 33 U.S.C. A. § 1342 (Supp.1974), establishes the National Pollutant Discharge Elimination System (NPDES) of permits, which replaces the Refuse Act Permit Program established pursuant to Executive Order No. 11574, 3 C.F.R. 292 (1974). No Refuse Act permits are to be issued after the enactment of tlie Amendments on October 18, 1972. FWPCAA § 402(a)(5). Instead, NPDES permits are deemed to be permits issued under the Refuse Act. Id. § 402(a)(4). Refuse Act permit applications pending when FWPOAA became law were converted into NPDES permit applications by subsection 402(a)(5). Where an NPDES permit has been applied for but no final administrative disposition has been made, subsection 402 (k) provides that, until December 31, 1974, the discharge in question shall not be a violation of either the amended FWPCA or the Refuse Act (unless the applicant’s failure to provide requested information has caused the administrative delay). In this respect Congress departed from the pattern of the Refuse Act Permit Program. Under the RAPP regulations, the pendency of a permit application would not prevent a Refuse Act suit. 33 C.F.R. § 209.131(d) (4) (1973).

      . Senator Muslcie supplemented his opening remarks with a written statement which dealt inter alia, with the effect of the savings provision.
      The Conferees also agreed that there should be no enforcement action taken for failure to have a permit until December 31, 1974, in order to provide an adequate opportunity for the Administrator to review and issue or not issue permits for the applications that are pending on date of enactment or will be pending as a result of expansion of the program.
      Concern has been expressed that the “immunity” provision will cause dismissal of pending enforcement actions under the Refuse Act of 1899. Section 4 provides the following relevant words pertaining to the Refuse Act: “No suit, action, or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity . . . shall abate by reason of the taking effect of the amendment made by section 2 of this Act.”
      Without any question it was the intent of the Conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other Acts of Congress.
      118 Cong.Rec.S. 16875 (daily ed. Oct. 4, 1972).
      Senator Griffin raised the point during the debate.
      MR. GRIFFIN. Mr. President, I take this time for the purpose of establishing a legislative history.
      After reviewing the conference report on S. 2770, I became deeply concerned that one provision in the conference agreement might adversely affect a number of pending lawsuits brought under the Refuse Act of 1899.
      One such suit is now pending against the Reserve Mining Co. of Silver Bay, Minn., a company which has been dumping 67,000 tons of pollutants daily into Lake Superi- or.
      The provision I refer to is section 402 (k)
      I am also aware of section 4 of the bill, a provision to preserve pending Federal suits.
      However, when these provisions are read together, it is not altogether clear what effect is intended with respect to pending Federal court suits against polluters violating the Refuse Act of 1899.

        If section 402 (k) were read as having retroactive effect, then about 170 Federal suits filed against polluters prior to the date of enactment of tire bill, including the Reserve case, could be dismissed.
      During the last 2 years there have been some 300 criminal convictions under section 13 of the Refuse Act and over 120 civil actions most of which resulted in the defendants either stopping the dumping or agreeing to institute pollution control programs. On the other hand, it is my understanding there have been only a handful of prosecutions for violation of water quality standards since the Federal Water Pollution Control Act was enacted.
      In view of this — a fact recognized by the conferees — it is inconceivable that the Senate would want to emasculate the best available enforcement, device now available —the Refuse Act — and legislatively dismiss suits pending under it.
      Accordingly, Mr. President, it is essential that any possible ambiguity be cleared up so that the legislative history will leave no doubt about the intent of the conferees and the Members of this body.
      MR. GRIFFIN. I wonder if I might address my question to the distinguished manager of the bill on this point.
      MR. MUSKIE. Yes, indeed. I appreciate having this point raised by the Senator from Michigan. I wish to put my answer in this form.
      Section 4(a) of the conference report is an identical provision to that which appeared in the House bill.
      Section 402(k) of the conference report is similar, although not identical, to section 402(1) of the House bill.
      No question has even been raised up to this point as to the relationship of these two sections. The gentleman’s question is the first indication that anyone has ever considered that there was an ambiguity in the two provisions.
      Section 4 provides and I quote the relevant words pertaining to the Refuse Act:
      “No suit, action, or other proceeding lawfully commenced by or against the Administrator of any other officer or employee of the United States in his official capacity .. . shall abate by reason of the taking effect of the amendment made by section 2 of this Act.”
      Without any question it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress.
      I hope and trust that nothing said on this floor or elsewhere would lead anyone to believe that section 4 is anything but totally clear as to its meaning and intent. MR. GRIFFIN. I thank the manager of the bill. Certainly that does clarify the meaning as to the intent of the conferees, and it would clearly indicate that the suit now pending against the Reserve Mining Co. under the Refuse Act would not be affected by this bill.
      MR. MUSKIE. That is my belief.

        Id. at S 16882-83.
      Senator Hart subsequently stated his reliance on Senator Muskie’s explanation.
      MH. HART.....
      Alarm has been voiced that efforts to prevent environmental damage to Lake Superior involving the discharge of taconite tailings by Reserve Mining Co., will be hindered by this legislation. It is my understanding, however, after the explanation of the Senator from Maine, that the suit now pending against the Reserve Mining Co., under the Refuse Act of 1899 will in no way be affected nor will any of the other counts under the existing Federal Water Pollution Control Act or other law.

        Id. at S 16890.
      The House of Representatives also considered the relationship between sections 402 (k) and 4(a). The following colloquy presented and resolved the potential ambiguity.
      MR. DINGELL. Mr. Speaker, I rise in support of this conference report, although I have some misgivings concerning certain features of the report, as I will note in more detail.
      At this point, I would like to direct a question to the chairman of the committee with regard to section 402 (k) of the bill and section 4(a) of the bill.
      It is my understanding that section 402 (k) of the bill would grant to any discharger of waste into our Nation’s water total immunity from prosecution under the Federal Water Pollution Control Act and under the Refuse Act until the end of 1974. Of course, to obtain this immunity, the polluter would have to file an application for permit, and that application must still be pending.
      I am deeply concerned what effect this provision will have on pending law suits and other administrative actions which EPA lias initiated over the past 2 years. In particular, I am concerned about the effect of this provision on the Reserve Mining case. The gentleman knows that I have corresponded with him on this issue in the last few days in the full belief that the gentleman and other members of the conference never intended to halt these

        cases until the end of 1974. I would, therefore, appreciate it if the gentleman would relieve my mind and those of many citizens of this Nation and the Great Lakes by assuring me that it is the intention of the House conferees that the immunity granted under section 402 (k) is applicable solely to dischargers who are not on the date of enactment of this bill being prosecuted by the Government, either civilly, criminally, or administratively, under this law or under the Refuse Act. I understand this to be the case because of the language of section 4(a) of the bill entitled “Savings Provision,” and because the bill, in fact, does not repeal the Refuse Act of 1899.
      Does the gentleman concur with my statement?
      MR. WRIGHT. Mr. Speaker, section 4(a) of the conference report is an identical provision to that which appeared in the House bill.
      Section 402 (k) of the conference report is similar although not identical, to section 402(1) of the House bill.
      No question lias ever been raised up to this point as to the relationship of these two sections. The gentleman’s question is the first indication that anyone has ever considered that there was an ambiguity in the two provisions.
      Section 4 provides and I quote the relevant words pertaining to the Refuse Act:
      “No suit, action, or other, proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity .. . shall abate by reason of the taking effect of the amendment made by section 2 of this Act.”
      Without any question it was the intent of the conferees that this provision include enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress.
      I hope and trust that nothing said on this floor or elsewhere would lead anyone to believe that section 4 is anything but totally clear as to its meaning and intent.
      Id. at H 9123-24 (daily ed. October 4, 1972).

      . It is noteworthy that Senators Griffin and Hart and Representative Dingell were concerned about the effect of the savings clause on United States v. Reserve Mining Co., 56 F.R.D. 408 (I).Minn.1972), a civil action brought in part under the Refuse Act in the name of the United States. See note 2, supra. Ultimately, Reserve Mining’s discharges were enjoined without deciding the Refuse Act question. United States v. Reserve Mining Co., 380 F.Supp. 11, at 58 (D.Minn.1974), conditionally stayed pending appeal, 498 F.2d 1073 (8th Cir. 1974).


author: PER CURIAM:

text:
    Hector CORTEZ-FLORES and Socorro Moreno de Cortez, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, etc., Respondent.
    No. 74-2093
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 13, 1974.

      Joseph J. Rey, Jr., El Paso, Tex., for petitioners.
    William B. Saxbe, U. S. Atty. Gen., U. S. Dept, of Justice, Washington, D. C., William S. Sessions, U. S. Atty., San Antonio, Tex., William E. Weinert, Immigration & Nat., Ronald P. Ederer, Asst. U. S. Atty., El Paso, Tex., Troy A. Adams, Jr., Dist. Director, Immigration & Nat., New Orleans, La., Rex Young, Atty., John L. Murphy, Chief Gov. Reg. Sec., Crim. Div., Washington, D. C., for respondent.
    Before COLEMAN, DYER and GEE, Circuit Judges.

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

   PER CURIAM:

Petitioners are husband and wife, aged 34 and 30 respectively, who are natives and citizens of Mexico. They are the parents of two children, aged 2 years and 6 months, who are United States citizens, born in the United States while their parents were here unlawfully. Petitioners are registered at the American Consulate in Juarez for the purpose of qualifying for immigration visas, and they anticipate being called for appearances in connection with their application around November, 1974.

Male petitioner entered the United States at El Paso, Texas, on or about September 24, 1972, at which time he was not inspected by immigration officials. Female petitioner entered the United States at El Paso on or about October 24, 1972, at which time she was admitted as a visitor for pleasure but was authorized to remain here as a non-immigrant for only 72 hours. She has remained without authority from immigration officials.

The Immigration Judge concluded that both petitioners were deportable under § 241(a)(2) of the Immigration & Nationality Act, 8 U.S.C., § 1251(a)(2), and they were granted the privilege of effecting a voluntary release within thirty days. The Board of Immigration Appeals upheld the deportation order.

Petitioners rely on § 241(f) of 8 U.S.C., § 1251(f) in their effort to prevent deportation. This section refers in part to “aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation”. Since neither of the deportation orders at issue were based on petitioners’ having entered the United States by fraud or misrepresentation, the relief provided by this section is unavailable.

The Board of Immigration Appeals noted in its decision that it has repeatedly held that an alien who entered without inspection (male petitioner) or who is an overstayed visitor (female petitioner) is not benefited by § 241(f), citing Matter of Mangabat, Interim Decision 2131 (BIA, 1972').

Case law adequately supports the Board’s decision. In Monarrez-Monarrez v. INS, 9 Cir., 1972, 472 F.2d 119, the court dealt with an alien who entered the United States without inspection and held that § 241(f), 8 U.S.C., § 1251(f) was unavailable to the alien because he was not charged with fraud nor did he commit any fraud nor make any misrepresentation to gain entry. The court noted that relief under § 241(f) has been extended only to those aliens who have committed fraud in obtaining entry papers, see INS v. Errico, 385 U.S. 214, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966), or who made misrepresentations when interrogated at the port of entry, Lee Fook Chuey v. INS, 9 Cir., 1971, 439 F.2d 244, and whose fraud or misrepresentations directly resulted in the deportation charges.

The court in Cabuco-Flores v. INS, 9 Cir., 1973, 477 F.2d 108 dealt with the problem of the overstay visitor stating “The issue is whether section 241(f) applies to deportation of a temporary visitor on the ground that the visitor has overstayed the period authorized. We hold that it does not”, Id. at 109. See, also, Pirzadian v. INS, 8 Cir., 1973, 472 F.2d 1211; Ferrante v. INS, 6 Cir., 1968, 399 F.2d 90; Ntovas v. Ahrens, 7 Cir., 1960, 276 F.2d 483.

The law is well settled that petitioners are ineligible for relief under 8 U.S.C., § 1251(f) in that in neither case was fraud or misrepresentation a basis for the finding of deportability.

This section of the Act also provides that an alien is not to be deported if among other things, he can show he was “otherwise admissible” at the time of his entry to the United States. The alien bears the burden of proving that he is eligible for relief under the Act by showing that he would be “otherwise admissible” at the time of his entry into the United States except for the fraud or misrepresentation perpetrated by his entry.

Petitioners did not present any evidence or even allege that they were otherwise admissible. Petitioners did show that they are the parents of children born in the United States, but this allegation alone will not suffice to save them from deportation since deportation of a parent does not deprive the child of any constitutional rights. See Perdido v. INS, 5 Cir., 1969, 420 F.2d 1179.

Petitioners have not established that they were “otherwise admissible” at the time of entry; and the law is well established that when an alien fails to prove himself eligible for relief from deportation, the court will not remand the case to give him a second chance to prove he is entitled to relief. See Bufalino v. Holland, 3 Cir., 1960, 277 F.2d 270, cert. denied 364 U.S. 863, 81 S.Ct. 103, 5 L.Ed.2d 85 (1960).

The order of the Board of Immigration Appeals is

Affirmed.


author: RIVES, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HI-WAY BILLBOARDS, INC., Respondent.
    No. 73-3789.
    United States Court of Appeals, Fifth Circuit.
    Sept. 11, 1974.
    Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne, Atty., N.L.R.B., Washington, D. C., Louis V. Baldovin Jr., Director, Region 23, N.L. R.B., Houston, Tex., for petitioner.
    Thomas R. Beech, Houston, Tex., for respondent.
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.
   RIVES, Circuit Judge:

This case is again here after proceedings following our remand order in NLRB v. Hi-Way Billboards, Inc., 5 Cir., 1973, 473 F.2d 649. We forego a restatement of such facts and circumstances as are not essential for an understanding of this decision.

The Board had applied for enforcement of its order against Hi-Way Billboards, Inc. (hereinafter the Company). The issue presented was whether the Board properly found that the Company violated section 8(a)(5) and (1) of the Act, by refusing to adopt the collective bargaining agreement negotiated purportedly on its behalf by a multi-employer bargaining association after the Company had attempted to withdraw from the association. This Court recognized that in the absence of Union consent or unusual circumstances a company cannot withdraw from participation in multi-employer bargaining after negotiations have commenced, but the Court was not at that time convinced “that substantial evidence supports the NLRB’s key finding that ‘There were no special circumstances excusing such withdrawal’.” (473 F.2d at 652.)

The Board had found that there was no final impasse. This Court rejected that finding and stated:

“Convinced as we are that a genuine impasse in the bargaining was reached by the Association and the Union immediately prior to the Company’s withdrawal'from the multi-em-ployer bargaining unit, we are without an opinion as to the legal consequences of that fact. This is because we have not had the benefit of a considered discussion of that issue by both parties herein subsequent to a decision on the question by the NLRB. Accordingly, we remand this case to the NLRB so that it may be given the first opportunity to decide whether an impasse such as found here excuses the Company from withdrawing from the multi-employer bargaining unit.” 473 F.2d at 655.

On remand the Board decided that an employer may not unilaterally withdraw from a multi-employer bargaining unit solely because an impasse in negotiations has been reached. In its supplemental decision and order reported at 206 N.L.R.B. No. 1, the Board gave consideration to the contentions of the parties, summarized by the Board as follows:

“In its statement of position, Hi-Way states that when a genuine impasse is reached in multi-employer bargaining, an individual employer should be allowed, as a right, to withdraw from such bargaining, and thereafter bargain with the union on an individual basis. Hi-Way further states that the imposition of any other conditions precedent to such withdrawal allows the union to whipsaw members of the multi-employer bargaining unit.
“In his statement of position, the General Counsel states that an impasse in negotiations between a mul-ti-employer bargaining association and a union does not necessarily reflect a breakdown in the bargaining relationship, and it does not warrant hasty and unilateral alteration of the established unit for bargaining. The General Counsel further states that permitting withdrawal solely on the basis of impasse would give little protection to the interests of employees in the unit, since it would encourage employer withdrawal merely because of dissatisfaction with the terms sought by the multi-employer association.”

After discussion, the Board concluded:

“Thus, a genuine impasse is akin to a hiatus in negotiations. In the overall ongoing process of collective bargaining, it is merely a point at which the parties cease to negotiate and often resort to forms of economic persuasion to establish the primacy of their negotiating position. Moreover, the occurrence of a genuine impasse cannot be said to be an unexpected, unforeseen, or unusual event in the process of negotiations since no experienced negotiator arrives at the bargaining table with absolute confidence that all of his proposals will be readily and completely accepted. Therefore, it is clear that an impasse is but one thread in the complex tapestry of collective bargaining, rather than a bolt of a different hue. In short, a genuine impasse is not the end of collective bargaining.
“For this reason, a genuine impasse in negotiations between a union and multi-employer bargaining association does not constitute an ‘unusual circumstance’ within the meaning of that term as applied by us in cases subsequent to Retail Associates [120 N.L.R.B. 388, 393-395]. A genuine impasse in such a situation does not call into question the actual continued existence of any multi-employer bargaining association member as a viable business entity. Rather, it is merely a momentary eddy in the flow of collective bargaining. Were we to hold otherwise, we would be denying the practical reality of collective bargaining negotiations, we would herald the demise of multi-employer bargaining, we would effectively negate the benefits of such bargaining to all parties and to employees, and we would allow an employer to seize upon such an occurrence and use it as a ground for withdrawal merely because it was dissatisfied with the impending agreement, as Hi-Way did in the instant case. Consequently, we hold that it would not effectuate the purpose or policies of the Act to allow an employer member of such an association to withdraw solely on the ground that an impasse in negotiations has been reached.
“Accordingly, the Board, having considered the court’s opinion, the record, and the statements of position of the parties, has decided to reaffirm its original Order.” (Footnote omitted.)

We are impressed with the cogency of the Board’s reasoning insofar as the Board’s decision would protect the interests of the Union and of the employees in the multi-employer unit. But we have doubts about the fairness of the decision to the employer members of the unit.

In Pacific Coast Association, 1967, 163 N.L.R.B. 892, the Board held in effect that a union may withdraw from a multi-employer unit with respect to one or more employers while continuing mul-ti-employer bargaining with those employers remaining in the multiple unit. So long as such a holding remains effective, it seems to us that the Board’s decision in the present case would allow the Union to reach an agreement with one or more employers and to whipsaw the remaining members of the multi-em-ployer bargaining unit.

In the present case the Board noted in its earlier decision that,

“Furthermore, the Union in the instant case accepted the ostensible withdrawal of two other members of the Association, but only upon their agreeing to be bound by any contract reached between the Union and the Association. This, we find, is in effect no withdrawal at all. In addition, Respondents did not learn of the identity of these members until after they (Respondents) had themselves withdrawn.”

Those two members also specifically agreed to pay retroactively to the date of the last contract the wages and fringe benefits to be provided in the new agreement.

An unfair whipsaw effect on the Company in the present case is suggested by the testimony of Mr. Fata, the Union representative, quoted in this Court’s earlier opinion:

“ ‘We struck all the Association members or just anyone that refused to go along with a retroactive contract up to this point, and going along with whatever was negotiated by the Association.’ ” (473 F.2d at 654)

In its brief before the Board on remand, the Company argued:

“The NLRB has clearly established that it is only fair that the same rules governing employer withdrawals from multi-employer bargaining units must be equally applied to union withdrawals. Detroit Evening News Assoc., 154 NLRB 1494 (1965), Retail Associates, Inc., 120 NLRB 388 (1958).”

The Board did not refer to that argument in its decision, but in its brief fo this Court it responded as follows:

“As the Company recognizes (S.A.10), the Board has committed itself to applying the same rules concerning the right to withdraw to both employers and unions. The Evening News Association, 154 NLRB 1494, 1495 (1965), enf’d sub nom., Detroit Newspaper Publishers Association v. N.L.R.B., 372 F.2d 569, 570-571 (C.A. 6, 1967). Thus, a union normally can only withdraw if the employer or employers also consent, see N.L.R.B. v. Local 964, United Br. of Carpenters & Joiners, 447 F.2d 643, 645-646 (C.A. 2, 1971); N.L.R.B. v. Brotherhood of Teamsters, etc., Local No. 70, 470 F.2d 509, 510 (C.A. 9, 1972), and therefore, in the absence of consent, the Board would not allow either an employer or a union to withdraw either before or after impasse.”

In a case like this one involving a single Union and several employers, the Board’s response simply does not ring true so long as the Union may in effect withdraw from the multi-employer association with respect to one or more employers while continuing multi-employer bargaining with those employers remaining in the multiple unit.

The Board’s present decision is admittedly opposed to the decision of the Eighth Circuit in Fairmont Foods Company v. N.L.R.B., 1972, 471 F.2d 1170, 1172-1174.

The Board’s present decision is at variance with its earlier decision in Morand Brothers Beverage Co., 91 N.L.R.B. 409, 417-418 (1950), enf’d in part and remanded in part, 190 F.2d 576 (C.A. 7, 1951). It may be, as the Board argues, that since Retail Associates, Inc., 120 N.L.R.B. 388, 393-394 (1958) Morand is not a viable decision. However, if the Board desires to announce a different presently prevailing rule, that rule cannot be given retroactive effect by this Court unless that effect is fair to the Company as well as to the Union. We cannot escape the view that enforcement of the Board’s order would be unfair to the Company.

We therefore conclude that substantial evidence on the record as a whole does not support the Board’s finding that the Company violated section 8(a)(5) and (1) of the Act by refusing to adopt the collective bargaining agreement negotiated purportedly on its behalf by a mul-ti-employer bargaining association.

Enforcement denied.

      . The Board’s original decision and order are reported at 191 N.L.R.B. 244.

      . National Labor Relations Act as amended, Tit. 29 U.S.C. § 158(a)(1) and (5) provide :
      “(a) It shall be an unfair labor practice for an employer—
      “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; He He
      “(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.”

      . On oral argument before this Court, it was brought out that not struck were two Association members who had agreed to pay retroactive pay from the date of the strike.

      . Footnote 1 at p. 1174 in pertinent part reads:
      “We find it particularly incongruous that the Board refused to uphold the withdrawal of Fairmont from the negotiations while impliedly approving the Union’s negotiation of separate contracts with three of the members of the Association during the impasse. While it is claimed that these contracts were merely interim agreements which were intended to be merged later into the Association agreement, the written agreement with Country House, Inc. was used as the basis for withdrawing the pickets from that employer’s premises * *