source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    Al MUMFORD et al., Plaintiffs-Appellants, v. James M. GLOVER et al., Defendants-Appellees.
    No. 73-3037.
    United States Court of Appeals, Fifth Circuit.
    Nov. 11, 1974.

      William L. Irons, James D. Forstman, Birmingham, Ala., for plaintiffs-appellants.
    William F. Gardner, Sydney F. Frazier, Jr., Birmingham, Ala., for Ala. Pipe, and others.
    William E. Mitch, Birmingham, Ala., for Local 324, Glover, and others.
    Before BELL, GOLDBERG and CLARK, Circuit Judges.
   GOLDBERG, Circuit Judge:

This case stands for the proposition that those with a cause of action should not be barred from the fields of advocacy merely because they have trouble making their way through the jurisdictional thicket. We find ourselves cutting the path which will allow plaintiffs to state their case in district court.

The district court dismissed the plaintiffs’ complaint “for failure to state a claim upon which relief can be granted.” Upon review here for the limited purpose of determining the validity of the dismissal, we look to see if there are any facts which plaintiffs could prove that would entitle them to relief. Czosek v. O’Mara, 1970, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21; Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Hooper v. Mountain States Securities Corp., 5 Cir. 1960, 282 F.2d 195, cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693. As a part of this assessment, we must accept the facts alleged to be true. Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 1965, 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247; Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320.

Plaintiffs are members of Local No. 324 of the International Molders and Allied Workers Union [the Union or Local 324] and are employed by the Mead Corporation [Mead or the Company]. The Union and Mead entered into a collective bargaining agreement on February 19, 1972. Article 19 of this agreement carried forward a previous agreement setting up and regulating a pension plan. Section 20 of Article 19 read: “The above plan shall not be subject to renegotiation until June 30, 1972." The Agreement itself was to remain in force through December 31, 1974, and thereafter until one party or the other gave 60 days notice of termination.

Plaintiffs-appellants allege that ' the Union scheduled a meeting for June 3, 1972, to elect members to the committee which would bargain for changes in the Pension Plan. Plaintiffs prepared for that meeting by selecting two nominees dedicated to terminating the pension fund from each Mead plant. They also endeavored to insure that a majority of the membership would show up at the meeting so that their nominees would be elected. But when the meeting was held officers of Local 324 announced that they could not get order and then adjourned the meeting. These officers announced that the meeting would be rescheduled. But two days later employees learned that the president of the Union had instead appointed a bargaining committee on his own. At a subsequent union meeting, on June 17, Union officers assured the membership that a vote would be taken on any plan which this committee brought back. During the ensuing weeks various employees demanded of Union leadership orally and in writing that the pension plan not be extended. On August 15 a petition to impeach the Union leadership, signed by 1,000 of the Local’s 1,800 members, was presented to the Union. On August 18 an amendment to the Pension Plan was executed by the Union and Mead without ratification by the Union membership. Subsequently a petition to rescind the agreement was filed by 1,300 of the Local’s membership. Officers of the Local ignored that petition.

Plaintiffs filed this suit against Mead, the Union, and trustees of the Pension Trust on July 17, 1972, seeking a termination of the Pension Plan and a refund of involuntary payroll deductions currently being held by the Pension Trust.

Subsequent to the dismissal below, the Union and the Company entered into an agreement whereby the Pension Fund refunded $1,700,000 to the class plaintiffs. This sum was made up of employee contributions to the Pension Fund plus interest on those contributions. Thus, at the time of oral argument the appellees had dispersed most of the booty. Except for incremental benefits, infra, and possible attorney’s fees we would have a classic case of mootness. We were not advised of the division of the spoils except by two sentences at the end of Appellant Mead’s brief and in Appellee’s “Alternative Motion for Remand for Determination of Attorney’s Fees.”

Disconcerting as this may be, forcing us to judge in a very sensitive area and in a near vacuum, we do so, knowing of possible remaining remnants on the battlefield. What started out as a potential armageddon will end with a minor skirmish requiring us to fire jurisdictional cannon which will be heard on future battlegrounds.

Plaintiffs-appellants claim that § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 gives federal district court jurisdiction over this suit.

“Plaintiffs further aver that the Pension Plan . . . has expired and contrary to the provisions contained in said Pension Plan and the collective bargaining' agreement . is being maintained in violation of the foregoing agreements. >>

A further claim, cognizable under Section 185 when it arises in the context of a collective bargaining agreement, was that the Union leadership abused their duty of fair representation.

“Workers further contend that Local 324 . . . failed to fairly represent the employees within the meaning of Section 159 of Title 29, U.S.C. A. ... in executing an agreement contrary to the written and oral demands of employee-members. The affidavits submitted . . . established that bad faith and hostile discrimination in the Union’s breach of their statutory duty by signing an agreement seeking to breathe life into a defunct pension plan.”

The contention that the collective bargaining agreement was violated by continuation of the Pension Plan is based on the Appellants’ apparent belief that the phrase in Article 19, Section 20 “shall not be subject to renegotiation” means “shall terminate.”

We do not read the agreement as plaintiffs do, and we therefore find that there was no violation of the collective bargaining agreement in the continuation of the Pension Plan after June 30, 1972. The phrase “shall not be open to renegotiation until June 30, 1972” in its plain sense merely prohibits alteration before that date. It does not suggest that renegotiation or any other act is required in order for the plan to remain in effect beyond June 30, 1972. Certainly the documents presented to this Court do not suggest a different intention on the part of those who concluded the first agreement. Nothing in the collective bargaining agreement supports such an interpretation of “renegotiate” and there are no directives for the Pension Fund in the event of termination. The prospect of termination is not covered in the second document submitted, the “Rules and Regulations of the Pension Plan.” Article IX, Section 2 of the Rules and Regulations reads: “If this Pension Plan is discontinued, the assets then remaining in the Pension Fund after providing for the expenses of the Plan, shall be allocated in the following manner. . . .” Rules and Regulations at 20. The section is stated in the conditional; if “renegotiate” was intended to mean “terminate” it is unlikely that the termination provision would have been so worded.

Admittedly, when a pension provision provides for renegotiation one of the possibilities opened is that the negotiators may decide to terminate the plan. But the possibility is not the certainty. The only certainty encompassed by the term “renegotiation” is that the parties are permitted to negotiate about the contents of the plan once again. This is what the Union and the Company did, and, in itself, this did not violate the contract between Local 324 and Mead. We therefore agree with the district court that plaintiffs did not state a cause of action when they contended that Union and Company had violated the terms of the collective bargaining agreement in not terminating the Pension Plan on June 30, 1972.

We must now address ourselves to the issues raised by the allegation that the Union has abused its duty of fair representation. Such a duty is legally compelled in contexts other than that in which a labor organization and employer are accused of violating contract terms. There is a duty of fair representation in all Union dealings implicit in the Congressional grant to unions, in 29 U.S.C. § 159(a), of the exclusive power to represent all employees in the collective bargaining unit. Vaca v. Sipes, 1967, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842, 850; Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048.

This Court has never ruled on the question of whether Section 185 might be used as a jurisdictional base for a claim of abuse of the duty of fair representation outside of the contractual context. Today we hold that Section 185 does not provide such jurisdiction. The plaintiffs-appellants’ essential assertion in the instant case is not that any specific term of the collective bargaining agreement, such as the proper operation of a seniority clause, was violated. Rather they claim that the Union had failed to fairly represent them in the administration of the Pension Plan. The existence of a pension plan clause provides the context within which the Union must act, but there is no stipulation in the clause itself which the Union or Mead has violated. See Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103. Section 185 provides jurisdiction only in “suits for violation of contracts between an employer and a labor organization ... or between any such labor organizations” (emphasis supplied). This section expressly requires a violation of a labor contract before it may be employed as a jurisdictional device. And the literal meaning of the statute is the first reference for Congressional intent. Perry v. Commerce Loan Co., 1966, 383 U.S. 392, 400, 86 S.Ct. 852, 15 L.Ed.2d 827, 833, quoting United States v. American Trucking Associations, 1940, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345, 1350; Flora v. United States, 1958, 357 U.S. 63, 65, 78 S.Ct. 1079, 2 L.Ed.2d 1165, 1167; Ray Bailie Trash Hauling, Inc. v. Kleppe, 5 Cir. 1973, 477 F.2d 696, 707. It is on this basis that we decide that Section 185 will not serve to bring this action before a federal court. Accord, Leskiw v. Local 1470, Electrical Workers, 3 Cir. 1972, 464 F.2d 721; Adams v. Budd Co., 3 Cir. 1965, 349 F.2d 368; Palnau v. Detroit Edison Co., 6 Cir. 1962, 301 F.2d 702.

This Court has held, however, that federal jurisdiction may be sustained when granted by a federal statute even if the plaintiff has not relied upon that statute in the district court. Paynes v. Lee, 5 Cir. 1967, 377 F.2d 61, 63; see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1206 at 77-78 (1969). Therefore, we conclude that this suit can move forward under the jurisdictional aegis of 28 U.S.C. § 1337. As previously noted, the statutory duty of fair representation is implied under Section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a). The N.L. R.A. is an “Act of Congress regulating commerce,” Capital Service, Inc. v. N. L. R. B., 1954, 347 U.S. 501, 504, 74 S. Ct. 699, 702, 98 L.Ed. 887, 891, so that a cause of action for the breach of Section 9(a) is one “arising under” a statute regulating commerce within the meaning of Section 1337. This Court has previously found jurisdiction under Section 1337 for controversies involving the National Labor Relations Act in Templeton v. Dixie Color Printing Co., 5 Cir. 1971, 444 F.2d 1064, 1067 and Boire v. Miami Herald Pub. Co., 5 Cir. 1965, 343 F.2d 17, 20. Four other circuit courts have found that the “arising under” jurisdiction encompasses actions involving the duty of fair representation. Retana v. Local 14, Apartment Operators, 9 Cir. 1972, 453 F.2d 1018, 1021-1022; Waters v. Wiscon. Steel Works, 7 Cir. 1970, 427 F.2d 476, 490; de Arroyo v. Sindicato de Trabajadores Packinghouse, 1 Cir. 1970, 425 F.2d 281, 283 n. 1; Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103, 106. This conclusion is buttressed by Tunstall v. Brotherhood of Locomotive Firemen, 1945, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187, 193, in which the Supreme Court held that Section 1337 provided a basis for district court jurisdiction over suits for abuse of the duty of fair representation implied from “comparable provisions of the Railway Labor Act.” Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 686, 97 L.Ed. 1048, 1057.

The jurisdiction thus bestowed by Section 1337 need not be snatched away by the doctrine of pre-emption. This Court had once upheld the primacy of the N.L.R.B. in duty of fair representation cases. Local 12, Rubber Workers v. NLRB, 5 Cir. 1966, 368 F.2d 12, involved allegations of a breach of the duty of fair representation, predicated directly on Section 9(a) of the Act and not on 29 U.S.C. § 185. In sending the case to the N.L.R.B. for consideration the Court noted:

“. . .we are convinced that the rights of the individual employees to be fairly represented can be more fully achieved within the spirit of the act by recognizing the Board as the appropriate body to meet the challenge of uniformly administering standards of fair representation.”

368 F.2d at 23.

But this opinion preceded the Supreme Court’s ruling on the matter in Vaca v. Sipes, 1967, 386 U.S. 171, 87 S. Ct. 903, 17 L.Ed.2d 842. In Vaca the plaintiff asserted a Section 185 breach and the question presented was one of state court pre-emption. But the Supreme Court referred to our decision in Rubber Workers, not a Section 185 case, in capsuling the Circuit Court disputes which helped foster its discussion. The issue it then addressed was that of preemption in general and not as limited to the Section 185 context. The reasoning of the Court is worth quoting at length:

A primary justification for the pre-emption doctrine — -the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union's duty of fair representation. The doctrine was judicially developed in Steele and its progeny, and suits alleging breach of the duty remained judicially cognizable long after the NLRB was given unfair labor practice jurisdiction over union activities by the L. M.R.A. Moreover, when the Board declared in Miranda Fuel that a union’s breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. See 140 N.L.R.B., at 184-186. Finally, as the dissenting Board members in Miranda Fuel have pointed out, fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery ; as these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision
[T]he duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold
that the courts are foreclosed by the NLRB’s Miranda Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F.2d 776, cert. denied, 385 U.S. 1026 [87 S.Ct. 753, 17 L.Ed.2d 674], The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. For these reasons, we cannot assume from the NLRB’s tardy assumption of jurisdiction in these cases that Congress, when it enacted N.L.R.A. § 8(b) in 1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative.

386 U.S. 181-183, 87 S.Ct. 903, 912, 17 L.Ed.2d 852-853 (footnotes omitted).

This position was reaffirmed in Amalgamated Assn. of Street Employees v. Lockridge, 1971, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, wherein the Court noted:

“[I]n Yaca v. Sipes . . . we held that an action seeking damages for injury inflicted by a breach of a union’s duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agree■ment.”

403 U.S. at 299, 91 S.Ct. at 1924, 29 L.Ed.2d at 490 (emphasis added).

This resolution of the pre-emption question is all the more compelled by the treatment of duty of fair representation cases by the N.L.R.B. In Miranda Fuel Co., 1962, 140 N.L.R.B. 181, enforcement denied, 2 Cir. 1963, 326 F.2d 172, a divided Board held that a breach of the duty of fair representation violated Section 8(b) of the Act. The majority held that Section 7 gave employees the right to be free from unfair treatment at the hands of their exclusive bargaining agent and “that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious or unfair.” 140 N. L.R.B. at 185. Since Miranda, however, the Board has been retreating from the application of a broad duty of fair representation criterion. Rather, it has found violations on traditional 8(b)(1)(A) and 8(b)(2) grounds: most generally where there were allegations of racial discrimination or a breach of the “duty of fair dealing,” which duty merely requires notice to a member of his union obligations before the union may request that the employer discharge him for avoiding them. See, generally, Note, Labor Law Preemption and Individual Rights, 51 Tex.L.Rev. 1037, 1074-84 (1973). Thus the application of Miranda might, in practice, rob a plaintiff of his cause of action if the cause does not fit in one of these narrow niches. In the absence of an overriding reason, this Court is loathe to make an empty ritual of a plenary right.

On remand, the court below should consider whether the facts alleged by plaintiffs are true, and whether in their full presentation they reveal a breach of the duty of fair representation. A legally cognizable breach in this case could stem from proof of Union hostility towards the plaintiff class. Vaca v. Sipes, supra; Amalgamated Association of Street Employees, supra; Cunningham v. Erie, R.R., 2 Cir. 1966, 358 F.2d 640. It might also stem from proof that Union leadership had treated the wishes of membership in a perfunctory fashion. While perhaps not constituting a breach under the “hostility” classification, evidence of nadiral disinterest in the desires of membership might make out a case of arbitrary treatment. See Local 12, Rubber Workers v. NLRB, 5 Cir. 1966, 368 F.2d 12, 18; Griffin v. U. A. W., 4 Cir. 1972, 469 F.2d 181; Day v. U. A. W. Local 36, 6 Cir. 1972, 466 F.2d 83; de Arroyo v. Sindicato de Trabajadores Packinghouse, 1 Cir. 1970, 425 F.2d 281, cert. denied, 400 U.S. 877, 91 S.Ct. 117, 27 L.Ed.2d 114; Thompson v. Internat. Assn. of Machinists, E.D.Va.1966, 258 F.Supp. 235. Of course, the mere fact that a new plan was negotiated does not in itself indicate that Union leadership was acting with hostility or disregard for membership. Leadership might very well show that they were trying to act in the best interests of all union members and were devoting sufficient energies to that representational effort. On their face, the facts alleged evidence neither invidious classification nor disparate treatment of membership, the other grounds for.finding breach of the duty of fair representation.

As noted above, Appellees have already refunded pension contributions, plus interest, to employees. Thus, if hostility or disinterest on the part of the Union towards its members is proven in the district court, relief granted from the Union should be limited. Relief would amount to the incremental damage caused to the membership by the delay in the refund from the time that renegotiation could begin to the time when refunds were actually made. Should plaintiffs-appellants prevail or accept a settlement their attorneys should be awarded a reasonable sum for bringing this appeal and for prosecuting the case upon remand.

In addition, if the court below finds that the plaintiffs’ original suit, even though dismissed, precipitated the refund, then counsel is entitled to recover the reasonable costs of bringing the original suit. Kahan v. Rosenstiel, 3 Cir. 1970, 424 F.2d 161. Such fees should be prorated against the funds settled upon each of the plaintiffs by the Pension Plan. Where plaintiff class members are without the funds to reimburse attorneys, such funds may be appropriated from a member’s share of any new fund which might be created by relief in the trial on remand.

Reversed and remanded.

      . 29 U.S.C. § 185(a) reads:
      Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

      . Appellants also contend that the collective bargaining agreement violates Ala.Code tit. 26, § 375(5) in that it makes contributions to the pension fund a condition of employment. This argument is completely without merit. Ala.Code tit. 26, § 375(5) reads:
      “No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization.”
      The money here was paid into a pension trust and not to, or for the benefit of, the Union.

      . Remarkably, this point is assumed throughout the Appellants’ Complaint and Brief. Not a sentence argues to the point.

      . 29 U.S.C. § 159(a) provides:
      Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay; wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided jnrilier, That the bargaining representative has been given opportunity to be present at such adjustment.

      . In Deaton Truck Line, Inc. v. Local 612, Teamsters, 5 Cir. 1962, 314 F.2d 418, this Court held that Section 185 is “broad enough to include any agreement significant to the maintenance of labor peace between the employer and the Union.” 314 F.2d at 422. But nowhere does that opinion suggest that a cause of action is provided in the absence of the violation of an agreement.

      . 28 U.S.C. § 1337 reads:
      The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.

      . Thus, technically, N.L.R.B. Jurisdiction is based on a Section 7 implication of the duty of fair representation whose violation is brought before the Board under Section 8(b)(1)(A). The courts find jurisdiction through a Section 9 substantive violation and 28 U.S.C. § 1337 jurisdiction. But the different grounds do not in themselves appear to compel substantive distinctions in disposition of the cases.

      . It should be noted that in this case the plaintiffs-appellants allege that they constitute a majority of the Union membership. All previous fair representation cases which have come to the attention of this Court involved the allegation of either an individual or minority of the membership. Majority status is usually sufficient to insure that one’s view is heard. But while this factor greatly increases the probability of fair representation it does not bar a suit when fair representation fails. Other avenues of relief generally open to a majority might not be adequate in the present case. Plaintiffs might not want to institute a decertification action because they may believe that the Union is adequately representing their interests outside of the particular action they are bringing. And internal union democracy, such as election of officers, may not be available in sufficient time to stave off the damage done by Union adherence to an undesirable contract.


author: J. JOSEPH SMITH, Circuit Judge: MANSFIELD, Circuit Judge

text:
    Eugene J. WHELAN, Plaintiff-Appellee, v. PENN CENTRAL COMPANY, now known as Penn Central Transportation Co., Defendant-Appellant and Third-Party Plaintiff-Appellee-Appellant, v. The UNITED STATES of America, Third-Party Defendant-Appellant-Appellee and Fourth-Party Plaintiff-Appellee, v. The FEDERAL STORAGE WAREHOUSE, Fourth-Party Defendant-Appellant.
    Nos. 1122-1125, Dockets 73-2789, 74-1338, 74-1367, 74-1417.
    United States Court of Appeals, Second Circuit.
    Argued June 17, 1974.
    Decided Sept. 11, 1974.
    Mansfield, Circuit Judge, dissented and filed opinion.

      David J. Mountan, Jr., New York City (Conboy, Hewitt, O’Brien & Boardman, New York City, Thomas J. Smith, New York City, of counsel), for Penn Central Co.
    John E. Treeartin, New York City (O’Hagan, Reilly & Treeartin, New York City), for Federal Storage Warehouse.
    Taggart D. Adams, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Joseph P. Marro, Asst. U. S. Atty., of counsel), for United States.
    Arnold B. Elkind, New York City (Donald E. Lampson, New York City, of counsel), for Eugene J. Whelan.
    Before SMITH and MANSFIELD, Circuit Judges, and BARTELS, District Judge.

       Senior United States District Judge for the Eastern District of New York, sitting by designation.

   J. JOSEPH SMITH, Circuit Judge:

These are appeals from judgment on a verdict entered November 8, 1973 after a jury trial in the United States District Court for the Southern District of New York, Thomas P. Greisa, Judge, awarding plaintiff-appellee Whelan $400,000 against defendant-appellant and third-party plaintiff-appellee Penn Central, and from judgments pursuant to a decision by Judge Greisa dated February 11, 1974, awarding Penn Central $200,000 against third-party defendant-appellant and fourth-party plaintiff-appellee United States of America, and awarding the United States $200,000 against fourth-party defendant-appellant Federal Storage Warehouse. We affirm in all respects.

On January 29, 1969, Eugene Whelan was working as a brakeman on a Penn Central engine crew which was engaged in a switching operation in the Raritan Arsenal, a facility in Edison, New Jersey, which is owned by the federal government. Light rain and sleet had been falling since early morning, and the temperature hovered around thirty degrees Fahrenheit. There was an icy glaze on the ground and on the equipment. At about mid-day, Whelan’s crew was in the process of moving two freight cars from a siding to the upper yard of the Arsenal. As the engine with the two cars approached the junction of the lead track and the main track, Whelan started down the steps at the rear of the engine, intending to stop on the bottom step, signal the engineer to stop the engine, step off the engine onto the pavement adjacent the track after the train came to a halt, and throw the switch. As he came down the steps, the train was proceeding on a slight downgrade at about three miles per hour. His left foot slipped as it touched the bottom step, and so did his hands when he tried to break his fall by using the hand grabirons of the step assembly. When his feet touched the pavement, the train seemed to speed up somewhat. Whelan managed to take one to three steps sideways on the ground before losing his grip on the lower part of the grabiron. The pavement was icy and broken in the area where his feet landed. He slipped, tripped, fell to the ground,, was hit and dragged a short distance by the freight car. As a result, he was seriously injured.

The jury found that Penn Central was liable to Whelan under the Boiler Inspection Act, 45 U.S.C. §§ 22-34, which provides, inter alia, that locomotives and “all parts and appurtenances thereof . . . [shall be] in proper condition and safe to operate in the service to which the same are put. .” Sitting without a jury, Judge Greisa subsequently ruled that the accident was caused by the “joint or concurring negligence” of Penn Central and the United States Government in that the Government was obligated by agreement with Penn Central to maintain the pavement on which Whelan slipped and tripped. And, pursuant to that same agreement, judgment was entered against the federal government for one-half of the damages assessed against Penn Central, or $200,000. The court further found that Federal Storage Warehouse must indemnify the United States for that $200,000 judgment because the duty of maintaining the pavement in question had been delegated to Federal Storage Warehouse under an easement agreement between the United States and Federal Storage Warehouse. Penn Central appeals the jury verdict in favor of Whelan and the failure of the court below to award Penn Central full indemnification against the United States. The United States appeals the award of partial indemnification to Penn Central. Federal Storage appeals the $200,000 judgment against it. .

A. Whelan v. Penn Central

Penn Central attacks the jury verdict on four grounds.

First, it contends that there was insufficient evidence to support the jury’s finding that it violated the Boiler Inspection Act. The evidence, however, was substantial. On the morning of the day of the accident, the engineer described in his “Locomotive Inspection Report” defects in the right-side step assembly from which Whelan fell: “Rear step RS bent and small metal strip coming loose.” Penn Central took no corrective measures between the time of the report and the time of the accident. Furthermore, the step assembly (steps and grabirons) had been coated with ice for several hours prior to the accident. The engineer made a second, relevant entry: “Adjust excess brake piston travel.” Engineer Johnson testified that the effect of “excess brake piston travel” is to reduce the effectiveness of the braking system. No adjustment was made prior to the accident. Penn Central conceded below that the condition of the brake violated the Act and argued that the condition was unrelated to the accident. But this is a matter for the jury. We will not disturb a Boiler Inspection Act verdict which has such an evidentiary basis, Bolan v. Lehigh Valley R. R., 167 F.2d 934 (2d Cir. 1948). The jury could well have found that the condition of the step assembly, by itself or in conjunction with the defective brake, was a cause of Whelan’s fall.

We must therefore reject appellant’s attack on the sufficiency of the evidence. We turn to its legal claim. Judge Greisa instructed the jury:

[Ujnder the law the presence of foreign matter, such as ice, can give rise to liability under the Act. But, again, with respect to the ice as with respect to everything else, you are to apply the criterion of the statute and that is whether the steps by virtue of the ice or otherwise were made improper in their condition, were made unsafe to operate in such a manner as to create unnecessary peril to life or limb.

Penn Central contends that the Boiler Inspection Act is not violated by slippery conditions caused by the weather and that we must reverse the judgment because the icy condition of the step assembly clearly contributed to the accident and to the jury’s decision. The argument has some force, but we conclude that we must reject it in light of prior case law.

In Lilly v. Grand Trunk Western R.R., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411 (1943), plaintiff fell from the top of a locomotive tender while attempting to lower a water spout. The top of the tender was icy, and plaintiff claimed that there was a small leak in the collar of the water manhole. The jury found a violation of the Boiler Inspection Act, while also finding in a special interrogatory that there was no leak. The Court, holding that the presence of ice on the tender top was sufficient to violate the Act, upheld the judgment, relying somewhat on a federal regulation which provided that the tender top be kept clean and means be provided to carry off waste water. The Court emphasized that the Boiler Inspection Act is to be construed liberally and concluded that the regulation “. . . only fortifies a result which we think the jury could probably have reached even in the absence of such a rule.” 317 U.S. at 489, 63 S.Ct. at 352.

This court construed Lilly in Calabritto v. New York, New Haven & Hartford R. R., 287 F.2d 394 (2d Cir.), cert. denied, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 387 (1961), where plaintiff slipped on sand and oil located on the platform of defendant’s switching engines. Defendant argued that Lilly authorized recovery for nonstructural or nonmechanical defects only where the dangerous condition results from a violation of federal safety regulations. Although the court reached its decision with some reluctance, as is evident in the two concurring opinions, it held that Lilly must be read as holding that dangerous conditions caused by foreign substances may give rise to liability under the Act in the absence of such a violation.

Given this prior treatment of the Boiler Inspection Act, we must reject appellant’s argument that its failure to violate a specific federal regulation immunizes it from liability on the basis of the icy condition of the step assembly. Appellant relies on a suggestion in Raudenbush v. Baltimore & O. R. R., 160 F.2d 363, 366 (3d Cir. 1947), to the effect that the violation of the regulation is an indispensable part of the holding in Lilly. To the extent that Raudenbush actually stands for this proposition and also represents the current position of the Third Circuit, both of which are questionable, Calabritto, 287 F.2d at 396, appellant’s remedy is with a higher court.

Appellant’s reliance on Turner v. Clinchfield R. R., 489 S.W.2d 257 (Ct. App., Tenn.1972), cert. denied, 411 U.S. 973, 93 S.Ct. 2168, 36 L.Ed.2d 696 (1973), is also misplaced. There, plaintiff slipped on ice which had fallen from the end of a tunnel onto the engine where plaintiff was working. The court held that the presence of this ice did not violate the Boiler Inspection Act because defendant could not have foreseen and therefore taken measures against this dangerous condition. Perhaps a railroad in Tennessee cannot be expected to guard against icicles falling onto engines en route. But a New Jersey railroad may well be held to a higher standard with respect to gradual ice formation in its own railyard. The icy condition in dispute in this case was foreseeable.

Today’s decision is not necessarily the decision which Judge Friendly feared would be at the bottom of the slippery slope he identified in his concurrence in Calabritto, 287 F.2d at 397:

The language of the Boiler Inspection Act, 36 Stat. 913, § 2 (1911), 45 U.S.C.A. § 23, does not suggest to me a Congressional purpose to impose on railroads an absolute duty to keep the surfaces of locomotives and tenders as free from foreign matter at all times, as an operating room before surgery. If the Act does this, I see no way of limiting the requirement to such substances as oil and grease; it must extend also to substances as unavoidable in railroad operation as snow and ice. Such a construction means that railroads face an inevitable conflict between the duty thus imposed, carrying the sanction of a $250 penalty for “each and every such violation,” 45 U.S.C.A. § 34, as well as of liability to employees, and their duty to render reasonable service to passengers and shippers; if the New Haven chose to regard the former as paramount, there would, I fear, be many occasions during the New England winter when we would be bereft of the presence of our colleagues from Connecticut and Vermont.

Whelan worked the engines of the Rari-tan Arsenal, not the commuter trains. Perhaps neither ice nor rain nor heat nor gloom of night should stay the latter’s course, but it may well be reasonable to curtail the Raritan Arsenal’s switching operations temporarily — until some product of modern science or remedy of ancient prudence can be sprayed, spread or hooked up so as to alleviate the danger — where weather conditions make that work so obviously hazardous. The carrier in any case is in a better position than anyone else to balance the relative costs of meeting Lilly’s strict demands and compensating an employee injured as was Whelan. See, G. Calabresi, The Costs of Accidents (1970). Moreover, it appears that ice alone did not cause Whelan’s fall, and the charge taken as a whole could be interpreted as not having the matter turn on that factor alone. Lilly and Calabrit-to require that we affirm the judgment.

Penn Central’s two remaining arguments deserve less attention. It objects to the introduction into evidence of several photographs of plaintiff showing him in various stages of medical treatment. But the photographs are far from shocking and are tame indeed compared with the stark account Whelan gave of his permanently disabled condition. They were properly admitted as relevant to the issue of pain and suffering. Finally, appellant challenges the lower court’s decision to permit Whelan to withdraw a Federal Employers’ Liability Act claim during the course of trial. Because appellant has not demonstrated that this decision was significantly prejudicial to its case, the action cannot be considered reversible error.

Appellee Whelan requests that we assess double costs and damages against Penn Central pursuant to 28 U. S.C. § 1912 and Rule 38 of the Federal Rules of Appellate Procedure. We deny this motion, as the appeal is far from frivolous.

B. Penn Central v. United States

Penn Central’s claim against the United States is based on paragraphs 3 and 9 of the Agreement for Industry Track dated February 1, 1962. In paragraph 3, the Government agreed to “maintain . . . repair and renew . . . (including removal of ice, snow and debris) . . .” the pavement adjacent to the track where Whelan fell. Paragraph 9 provides:

The Industry [the United States] also agrees to release, indemnify and hold harmless the Railroad, its officers, employees and agents, for loss, damage or injury from any act or omission of the Industry, its officers, employees and agents, to the person or property of the parties hereto and their officers, employees and agents, and to the person or property of any other person or corporation, while on or about the side track. If any claim or liability, other than from fire caused by locomotives as aforesaid, shall arise from the joint or concurring negligence of both parties hereto it shall be borne by them equally. The Industry also agrees to release, indemnify and hold harmless the Railroad, its officers, employees and agents, for loss, damage or injury of any nature resulting from operation by the Railroad over the tracks of the Industry when such loss, damage or injury is due to any unsafe condition of the premises of the Industry.

The court below found that plaintiff’s injury was caused by the “joint or concurring negligence” of Penn Central and the United States in that both the defective step assembly and the broken and slippery pavement caused the accident, and it awarded partial indemnity to Penn Central pursuant to the second sentence of paragraph 9.

The Government now contends that no indemnification was justified because, first, the court below erred in finding that its negligence contributed to the accident, and second, paragraph 9 does not govern. Penn Central argues that the court below should have awarded full, not partial indemnification because the third sentence of the paragraph is applicable, not the second.

The Government’s first argument goes both to causation and to negligence. It challenges the findings below that it was negligent in permitting ice to accumulate on the pavement as well as in failing to repair breaks in the pavement and that the condition of the pavement was a proximate cause of the accident.

Citing McGivern v. Northern Pac. Ry., 132 F.2d 213 (8th Cir. 1942) ; Detroit T. & I. R. R. v. Banning, 173 F.2d 752 (6th Cir.), cert. denied, 338 U.S. 815, 70 S.Ct. 54, 94 L.Ed. 493 (1949), and Raudenbush, supra, the Government contends that the existence' of recent ice conditions due to the weather does not violate its duty of care. These cases turn on facts and circumstances peculiar to each case; there is little to be learned from a string citation. The evidence here indicates that freezing rain had been falling for many hours prior to the accident and that the Government had some advance notice that a crew would be working at the scene of the accident. Compare, Skidmore v. Baltimore & O. R. R., 167 F.2d 54 (2d Cir.), cert. denied, 335 U.S. 816, 69 S.Ct. 34, 93 L.Ed. 371 (1948), with Mirabile v. New York Cent. R. R., 230 F.2d 498 (2d Cir. 1956).

As to the break in the pavement, appellant characterizes it as a “small imperfection.” But a photograph introduced into evidence reveals that it was a tripping hazard to alighting trainmen, and appellant clearly knew> that trainmen would alight in the area of the switch.

The Government urges that we review the evidence unrestrained by the “clearly erroneous” test of Rule 52(a), citing Cleary v. United States Lines Co., 411 F.2d 1009, 1010 (2d Cir. 1969). But neither is de novo review the proper approach. As we have previously stated:

The standard of review to be applied to a district court’s finding of negligence is not the “clearly erroneous” standard . . . for a finding of negligence is reviewable as a matter of law. Nevertheless, the lower court finding “[will] ordinarily stand unless the [lower] court manifests an incorrect conception of the applicable law.” Cleary v. United States Lines Co., 411 F.2d 1009 (2 Cir. June 2, 1969), citing Radovich v. Cunard Steamship Co., 364 F.2d 149, 152 (2 Cir. 1966) and Esso Standard Oil, S.A. v. S. S. Gasbras Sul., 387 F.2d 573 (2 Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1808, 20 L.Ed.2d 653 (1968).

Hendry v. United States, 418 F.2d 774, 784 (2d Cir. 1969). See also, Dinnerstein v. United States, 486 F.2d 34 (2d Cir. 1973).

Here, we cannot say that the court below applied an incorrect legal standard. Neither can we perceive clear error.

The thrust of appellant’s causation argument is that the court below improperly discounted Whelan’s testimony at trial concerning what caused the accident. Whelan had testified that the step assembly was the primary cause of the accident. Judge Greisa reasoned in his decision that Whelan’s testimony was shaped to some extent by his withdrawal of the FELA claim against Penn Central for negligent maintenance of the pavement and that portions of the cross-examination had to • be read with this in mind. We think that this is a proper inference for a trial court to draw. In any event, the court did not rely on this inference, and there was considerable evidence of the substantial role which the defective pavement played in the fall. Having digested all the evidence in this case, Judge Greisa stated in his decision:

It seems to me inevitable that an icy pavement, broken in the way this pavement was, must have played a substantial part in preventing plaintiff from obtaining a footing and in propelling him underneath the box car.
We will not disturb this finding.

The remaining point in this appeal concerns the interpretation of paragraph 9. Penn Central claims that since the court below found that the accident was caused by an unsafe condition for which the Government was responsible, the third sentence of the paragraph applies. However, the Government’s negligence was only a cause of the accident. Penn Central’s interpretation of the paragraph would read the second sentence out of the agreement. Moreover, this is not a case in which a more specific provision in the contract conflicts with the joint or concurring negligence clause. See Anthony v. Louisiana & Arkansas Ry., 316 F.2d 858 (8th Cir.), cert. denied, 375 U.S. 830, 84 S.Ct. 74, 11 L.Ed.2d 61 (1963), and cases cited therein. On the most reasonable interpretation of the paragraph, the second sentence governs. Anthony, supra, at 866. See also, Northern Pac. Ry. v. Herman, 478 F.2d 1167 (9th Cir. 1973).

The Government contends that the paragraph only applies where liability arises from the negligence of the United States which is imputed to Penn Central. But the paragraph on its face is not so limited, and there is no evidence that the parties so intended to limit it. Had they so intended, they should have been more specific.

In short, we think the court below properly construed the agreement.

C. Federal Storage Warehouse v. United States

An easement agreement between these parties dated July 11, 1967 allocated to Federal Storage Warehouse the duty of maintaining the pavement on which Whelan slipped and tripped. The court below ruled that because Federal Storage Warehouse breached its duty to the Government to maintain the area, the Government is entitled to indemnity under § 95 of the Restatement of Restitution:

Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.

Federal Storage Warehouse’s primary point on appeal is that since the easement agreement contained no explicit indemnity provision, Federal Storage Warehouse cannot be held liable. Appellant relies on the tenets of construction that contracts of indemnity must set forth the indemnity provisions in clear and unequivocal terms, Mostyn v. Delaware, L. & W. R.R., 160 F.2d 15 (2d Cir.), cert. denied, 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355 (1947), and that any ambiguities in the easement agreement must be resolved against the United States, which drafted the document.

This argument mistakes the reasoning of the judgment below. Federal Storage Warehouse’s liability is based on a theory of implied indemnity arising from its breach of the duty to maintain the pavement, not on an explicit indemnity agreement. That theory is sound. “[A]n agreement to maintain and repair carries with it an obligation to indemnify against breach thereof,” Petty v. New York Cent. R.R., 322 F.Supp. 1324, 1327 (S.D.N.Y.1970), aff’d on opinion below, 438 F.2d 538 (2d Cir. 1971).

Appellant also contends that the Government actually maintained the pavement in the area where Whelan fell and that therefore the Government acquiesced in the violation of appellant’s duty under the agreement to maintain the pavement. However, the court below found that “[n]o evidence has been adduced to indicate that the United States discovered or acquiesced in the dangerous condition in the area where the accident occurred,” and Federal Storage Warehouse has not demonstrated that this finding is incorrect.

Affirmed.

MANSFIELD, Circuit Judge

(dissenting) :

I agree with Judge Smith’s carefully considered opinion except for his conclusion that the jury was entitled under the Boiler Inspection Act, 45 U.S.C. § 23, to find Penn Central liable on the ground that the accident was caused in whole or in part by a thin coating of ice on parts of the steps and handholds of the locomotive, which had accumulated as the result of a light rain and sleet that occurred at a temperature of 30° as the crew was engaged in the performance of its duties. The majority’s holding on this issue is of crucial significance for the reason that while other defects and violations were also alleged to have contributed to the accident, the evidence indicates rather clearly that the principal, if not sole, cause may well have been the slippery conditions attributable to the coating of ice.

In my view the Boiler Inspection Act, as its title, text and legislative history indicates, was designed to protect against defective equipment or dangerous conditions directly connected with the operation of the locomotive itself and not against conditions attributable solely to the transitory vagaries of Mother Nature. Accordingly I would reverse and remand the case for a new trial.

As Judge Friendly pointed out in his concurring opinion in Calabritto v. New York, New Haven and Hartford R. Co., 287 F.2d 394, 397 (2d Cir. 1961):

“The language of the Boiler Inspection Act, 36 Stat. 913, § 2 (1911), 45 U.S.C.A. § 23, does not suggest to me a Congressional purpose to impose on railroads an absolute duty to keep the surfaces of locomotives and tenders as free from foreign matter at all times, as an operating room before surgery. If the Act does this I see no way of limiting the requirement to such substances as oil and grease; it must extend also to substances as unavoidable in railroad operation as snow and ice. Such a construction means that railroads face an inevitable conflict between the duty thus imposed, carrying the sanction of a $250 penalty for ‘each and every such violation,’ 45 U.S.C.A. § 34, as well as of liability to employees, and their duty to render reasonable service to passengers and shippers; if the New Haven chose to regard the former as paramount, there would, I fear, be many occasions during the New England winter when we would be bereft of the presence of our colleagues from Connecticut and Vermont. Neither does anything in the legislative history of the Act afford the slightest basis for such a construction; indeed, it points rather in the opposite direction. If I were free to exercise my own judgment, I should therefore wholly agree with the interpretation given by this Court in Ford v. New York, New Haven & Hartford R. Co., 2 Cir., 1931, 54 F.2d 342, where we affirmed the dismissal of a complaint based on the theory that the mere presence of a foreign substance violated the Safety Appliance and Boiler Inspection Acts.

The majority here finds itself bound by the Supreme Court’s decision in Lilly v. Grand Trunk Western R. Co., 317 U. S. 481, 487-488, 63 S.Ct. 347, 87 L.Ed. 411 (1943), to uphold the district court’s instruction leading to the jury’s verdict, even though the result does violence to Congress’ expressed purposes in enacting the Boiler Inspection Act. However, I believe that since this case is clearly distinguishable in legally significant respects from Lilly and Calabritto, a reversal here would not only be consistent with those cases but would be in accord with the purpose of the Act.

In Lilly, the problem ease, the Supreme Court found that the Act extended to the formation of ice on a six-foot square area on top of the locomotive tender, located between “the water manhole and the fuel space.” Although the jury found no leak in the collar of the water manhole, it is clear that this specific area was considered to be uniquely prone to the collection of water from the operation of the locomotive itself. The Interstate Commerce Commission had adopted a rule relating to “Fuel Water Tanks” (Rule 153), which obligated the railroad to keep this small part of the top of the tender clean and to provide means “to carry off waste water.” With respect to this rule the Court said: “From the phrasing of Rule 153 we think it aimed at requiring the top of the tender to be kept free of foreign matter which would render footing insecure, for example, coal, dust, debris, grease, waste water, and ice”, 317 U.S. 486-487, 63 S.Ct. 351 (emphasis added). Referring to earlier decisions of various Courts of Appeals holding thát the presence of foreign substances did not violate the Act, the Supreme Court went on to say “Whatever else may be said about the cases relied upon by respondent, they are sufficiently distinguishable in that they either did not involve or did not consider Rule 153 or any comparable regulation,” 317 U.S. at 488, 63 S.Ct. at 352. See Raudenbush v. Baltimore & O. R. Co., 160 F.2d 363 (3d Cir. 1947).

Thus Lilly, in my view, did not liberalize the interpretation of the Boiler Inspection Act to the extent claimed by appellee here. Although the presence of foreign matter causing an accident may violate the Act, it must, as I read Lilly, be attributable to or connected with the operation of the locomotive itself. See Turner v. Clinchfield R.R. Co., 489 S.W. 2d 257 (Ct. of App., Tenn), cert. denied, 411 U.S. 973, 93 S.Ct. 2168, 36 L.Ed.2d 696 (1973). Thus in Calabritto this Court upheld a finding of liability based on the presence of oil and sand on the platform of one of the switching engines, which obviously was produced by the operation of the equipment. In the present case, in contrast, the formation of a thin coating of ice on the steps and grabirons could by no stretch of the imagination be attributed to the operation of the equipment. Furthermore, the present case “did not involve Rule 153 or any comparable regulation,” 317 U.S. at 488, 63 S.Ct. at 352.

To extend liability under the Boiler Inspection Act to the mere transitory presence of ice which forms because of weather conditions developing during the course of operation places railroads, many of which are already bankrupt, in an impossible position. Such a holding means that unless the railroad, when such an unforeseen condition develops, immediately stops operations, it becomes vulnerable not only to damage suits, which some may dismiss as one of the risks of the business, but, more important, to suits by the United States for heavy penalties based upon violation of the Act. Such a result is unfair and unrealistic. It wholly exceeds Congress’ declared purpose in enacting the Act and the Supreme Court’s interpretation of it. I would draw the line at the outer limits which I have specified.

      . 45 U.S.C. § 23. Section 23 reads in full: It shall be unlawful for any carrier to use or permit to be used on its lines any locomotive unless said locomotive, its boiler, tender, and all i>arts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of sections 28 to 30 and 32 of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for.

      . We must reject the Government’s argument that the duty specified in paragraph 3, to maintain the “side track,” extends only to the running rails, ties and switch points of the railroad track and not to the pavement immediately adjacent to the track. The agreement defines “side track” as “track facilities . . . for the . . . conduct of the business of the Industry. . . . ” Because the use of the pavement adjacent to the track was a necessary element of that conduct, “side track” must be read as including rails, ties, switch points and adjacent pavement.

      . Paragraph 3 of the easement agreement provides:
      The Grantee shall pay to the Grantor and its assigns, at such times as the Grantor or its assigns shall determine, its prorated share of the cost of maintenance and repair of the said railroad spur line, said cost to be allocated on the basis of the number of cars of each user using any portion of the railroad spur line from Woodbridge Avenue to a point approximately 1200 feet southerly therefrom, being the point where such spur connects with the track now or formerly owned and recently Installed by the Township of Edison. The Grantee shall maintain and keep in repair the remaining portion of the spur line extending southward and easterly from the aforementioned point of connection with the Township’s spur, provided, however, that the Government and its assigns shall pay the Grantee a pro rata share of the cost of maintaining and repairing the said remainder of the spur line, based on the number of cars using the said remainder of the spur line for the benefit of each user.

      . The initial debate on the floor of the House indicated that the legislators were primarily concerned with boiler explosions. Representative Mann, chairman of the House Committee on Interstate and Foreign Commerce, which reported the bill, said ‘It is the belief of all people concerned, both the railroads and the employees, that the passage of this bill will materially result in the lessening of boiler explosions.’ 46 Cong.Rec. 2071 (1911). Representative Robinson spoke of accidents caused by ‘defective boilers,’ id. at 2072, and Representative Peters of explosions, steam pressure, and the need to inspect boilers from the inside, id. at 2074. The broadening of the Act in 1915 was recommended by the Senate Committee on Interstate Commerce in a one-page report, S.Rep., 63rd Cong., 3d Sess., No. 1068, which said only:
      “ ‘This measure provides for the inspection of the entire locomotive. Experience has shown that this is necessary and desirable for the proper safeguarding of the lives of those who travel and of those engaged in the oi>eration of locomotives.’
      “The House Report on the 1924 amendment, 68tli Cong., 1st Sess., No. 490, reprinted a letter from the Interstate Commerce Commission which spoke in passing of accidents ‘resulting from the failure of some part of appliance of the locomotive or tender.’ P. 3. The Senate Report, No. 740, simply reprinted the House report with approval.”


author: BUTZNER, Circuit Judge:

text:
    GENERAL STEEL PRODUCTS, a division of the Seng Company, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent,
    No. 74-1077.
    United States Court of Appeals, Fourth Circuit.
    Argued June 3, 1974.
    Decided Oct. 1, 1974.

      Lewis P. Hamlin, Jr., Salisbury, N. C., (Kluttz & Hamlin, Salisbury, N. C., on brief), for petitioner.
    Frank C. Morris, Jr., Atty., National Labor Relations Board (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Michael S. Wi-ner, Atty., National Labor Relations Board, on brief), for respondent.
    Lawrence M. Cohen, Chicago, 111. (Gerard C. Smetana, Lederer, Fox & Grove, Chicago, 111., on brief), for American Retail Federation, amicus curiae.
    Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.
   BUTZNER, Circuit Judge:

The primary question raised by this review of a bargaining order is whether the National Labor Relations Board can reinstate a petition for a representation election that the Board dismissed when it erroneously entered an earlier bargaining order. We hold that the Board did not exceed its authority, and we enforce its order.

The Upholsterers’ Union has been attempting since 1964 to establish itself as the employees’ bargaining representative at General Steel Products Co. The following summary of earlier proceedings provides an understanding of the present controversy:

If In March 1966, the Board found that the company’s unfair labor practices nullified its 1964 election victory and set aside the election. It also ruled that the company had violated §§ 8(a)(1) and (5) of the Act, entered a bargaining order based on signed authorization cards, and dismissed the union's 1964 petition for an election
ff In June 1968, this court, upon the company’s petition for review, enforced the cease and desist order based on the violations of § 8(a)(1) but denied enforcement of the bargaining order.
H In June 1969, the Supreme Court reversed our denial of enforcement of the bargaining order and remanded the ease for the Board’s reconsideration.
H In December 1969, the Board, without a hearing, affirmed its issuance of a bargaining order.
H In July 1971, this court again denied enforcement of the bargaining order and remanded the case for a hearing to determine, among other issues, whether a fair election could be held.
H In October 1972, the Board ruled that a bargaining order was unnecessary, reinstated the union’s 1964 election petition, and directed a second election.
If In December 1973, the Board summarily rejected the company’s objections to the second election, which the union won, and entered the current bargaining order.

We accept the company’s major premise: the Board lacks statutory authority to order a representation election without an extant petition for an election. We are not persuaded, however, by the arguments that the company builds on this premise. They are (1) the Board lacked authority to reinstate the petition it dismissed in 1966, and (2) the Board acted arbitrarily because reinstatement is unprecedented and inconsistent with its previous positions.

The union’s 1964 representation petition satisfied the Act’s requirements and invoked the Board’s power to order an election. The Board’s subsequent entry of a bargaining order based on a card count, however, appeared to make the election petition superfluous and the Board dismissed it. When the bargaining order was ultimately determined to have been erroneously granted, the election petition became an appropriate instrument for determining the question of representation over which the parties had been continuously litigating.

The Board’s correction of its error was not limited to vacating the bargaining order which this court had declined to sustain. It could go further and reinstate the election petition which it had improvidently dismissed on the mistaken assumption that its bargaining order was enforceable. Mr. Justice Frankfurter stated the controlling principle of law in FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S.Ct. 437, 442, 84 L.Ed. 656 (1940):

“On review the court may . correct errors of law and on remand the Commission is bound to act upon the correction . . . But an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.”

Contrary to the company’s assertion, the Board’s reinstatement of the petition does not lack precedent. Under circumstances substantially similar to those found here, the Board reinstated a petition and ordered a second election in New Alaska Development Corp., 194 NLRB No. 137 (1972).

Nor is the Board’s ruling inconsistent with the position that it took in Peerless of America, Inc. v. NLRB, 484 F.2d 1108 (7th Cir. 1973) and Ft. Smith Outerwear v. NLRB, 499 F.2d 223 (8th Cir. 1974), where, in unreported motions, it questioned the statutory authority of a reviewing court to order an election on a dismissed petition. We, however, are not faced with this issue. Neither our remand in General Steel Products, Inc. v. NLRB, 445 F.2d 1350 (4th Cir. 1971), nor this opinion directs the Board to hold an election. Consequently, the Board had no occasion to assert in this case the position it took in Peerless and Ft. Smith. It is one thing for the Board to assert its own authority to reinstate a representation petition and order an election under § 9(c) of the Act, as it has done here. It is quite another proposition for the Board to question a court’s exercise of similar authority, as it did in Peerless and Ft. Smith. The Board’s positions are complementary, not inconsistent.

The company filed a number of objections to the second election charging that the union’s misconduct affected the election. We find no error in the Board’s disposition of these issues without an evidentiary hearing. Cf. NLRB v. Americana Nursing Home, 459 F.2d 26 (4th Cir. 1972); Intertype Co. v. NLRB, 401 F.2d 41 (4th Cir. 1968).

Order enforced.

      . General Steel Products, Inc., 157 NLRB No. 59 (1966).

      . General Steel Products, Inc. v. NLRB, 398 F.2d 339 (4th Cir. 1968).

      . NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

      . General Steel Products, Inc., 180 NLRB No. 8 (1969).

      . General Steel Products, Inc. v. NLRB, 445 F.2d 1350 (4th Cir. 1970).

      . General Steel Products Co., 199 NLRB No. 121 (1972).

      . General Steel Products Co., 207 NLRB No. 112 (1973).

      . The Board’s authority to order an election is contained in § 9(c) (1) of the Act [29 U. S.C. § 159(c)(1) (1970)], which provides in part:
      “Whenever a petition shall have been filed
      (A) by ... a labor organization . . . or
      (B) by an employer . . . the Board shall investigate such petition and [if appropriate] direct an election by secret ballot . . .”

      . In support of its motions, the Board argued that AFL v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940), precluded direct review of an election proceeding.