author: GEWIN, Circuit Judge:

text:
    Willie ROSS, alias Willie Harrison, Petitioner-Appellant, v. STATE OF TEXAS, Respondent-Appellee.
    No. 72-1239.
    United States Court of Appeals, Fifth Circuit.
    Jan. 30, 1973.
    Rehearing and Rehearing En Banc Denied March 12, 1973.

      Harry H. Walsh, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellant.
    Crawford Martin, Atty. Gen., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before GEWIN, THORNBERRY and CLARK, Circuit Judges.
   GEWIN, Circuit Judge:

Willie Ross, a state prisoner, sought habeas corpus relief in the district court but was unsuccessful. There he urged several grounds for relief, but his chief contention — and the only one raised on appeal — related to the alleged suppression or non-disclosure by the state of a police offense report at his trial for robbery by assault. This report was based on the police investigation of the crime for which Ross was charged and ultimately convicted. He contended that the report contained certain information favorable to his case and that the State’s failure to divulge it constituted a denial of due process. Following a full eviden-tiary hearing, the district court denied all relief. We affirm.

Late on the evening of October 31, 1964, Wilson Broushett left his house to go to the Houston Ship Channel to collect his paycheck for the preceding week. At the time he had almost $100.-00 in cash in his possession. After searching fruitlessly for a taxi, he came upon two people standing next to a parked automobile in the vicinity of Williams’ Restaurant in Houston. He testified that one was an acquaintance named Beatrice Williams and the other was Willie Ross, a man whom Broushett did not know by name at the time. According to Broushett’s version of the ensuing events, Ross agreed to give him a ride to the dock area. But shortly before they got there, Ross turned off on a side street, pulled a knife on Brou-shett and took all of his money. This was reported to the police in the early morning hours of November 1, 1964. Ross was finally arrested on January 27, 1965 after Broushett spotted him at Williams’ Restaurant and called the police.

At the trial, Broushett’s testimony represented the State’s chief evidence of Ross’ guilt. He positively identified Ross and unequivocally testified that Ross admitted the robbery and tried to persuade him to accept a return of the money taken and to drop the charges The defense consisted of two elements. The first was to develop an alibi. To this end, Ross’ wife, Geraldine, testified that the accused was with her at another place at the time of the robbery. The second element was to impeach Brou-shett’s identification of Ross. This was attempted mainly through the testimony of Beatrice Williams who stated that Ross was not the individual with her when Broushett solicited the ride to the dock area. The defense also brought out the fact that Broushett was unable to provide the police with anything more than' a general description of his assailant, even though he knew the accused’s wife and was aware that she had some relationship with Ross.

At the habeas corpus evidentiary hearing there was no substantial dispute as to the facts. Ross established unequivocally that the police offense report made in connection with the alleged robbery was unavailable to him for the preparation of his defense. This report, the existence of which was unknown to the prosecutor, disclosed the various phases of the police investigation in this case. In particular, it revealed that at one point four individuals, none of whom was Ross, were suspected by the police of committing the Broushett robbery. These four had apparently admitted guilt to several other robberies in the vicinity of the ship channel and were in possession of an automobile similar to the one used to take Broushett to get his payroll check on the evening of October 31, 1964.

The district court found that the state had not withheld any evidence favorable to Ross’ case and therefore denied the due process challenge to his conviction. Ross now argues that the district court failed to apply the proper legal standard in reaching its conclusion. Relying primarily on the cases of United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971) and Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209 (1967), he urges that the test which should have been applied is whether the undisclosed evidence might have led the jury to entertain a reasonable doubt as to his guilt. On the facts of this case, it is asserted that through the use of the police offense report, such doubt might have been instilled in the minds of the jurors. Although a rule similar to the one which Ross asks us to adopt seems to be followed in the D. C. Circuit, it does not appear that this circuit has embraced it and we are not aware that any other circuits have done so. Our reluctance to adopt such a rule proceeds from several considerations, not the least of which is our desire to keep the administration of criminal justice free of encumbrances that are not clearly commanded by the policy underlying the due process clause of the federal constitution.

Under the rule now urged upon us, the showing of materiality necessary to obtain a new trial would be rather minimal. In the case at hand, Ross would gain a retrial or perhaps his freedom by demonstrating the bare possibility that the police offense report would have led the jury to entertain a reasonable doubt of his guilt. Given the uncertain chemistry of the minds of jurors, almost any evidence remotely relevant to a criminal case could arguably generate such doubt. In our opinion the proposed standard is far too restrictive on the state and is not calculated to foster a proper balance between the individual’s fundamental right to a fair trial and the legitimate interests of the state in prosecuting persons accused of crime.

Moreover, there are other appropriate and necessary factors to be considered. It is of the utmost significance in this case that neither the prosecutor nor any of his assistants were in possession of the police report or were even aware of its existence. Were we to grant the relief Ross seeks, the effect of our decision would be to require more than just the disclosure of evidence possibly helpful to a defendant’s case. By necessary implication it would place upon the prosecutor’s shoulders the added burden of discovering all such evidence even though buried somewhere in the files of any one of numerous other state bureaus or agencies. In view of the unrealistic rigorousness of such an obligation with all of its ramifications, we think that a judicial requirement of disclosure in the circumstances here present is not commanded by the due process clause. While we are committed to the principle that the truth must be pursued diligently and in good faith, the rule urged upon us would require near perfection in this endeavor. The advocated requirement would not strike a proper balance in a judicial system that must accommodate many competing values and interests in addition to those of the defendant. Arguments in support of the desired disclosure expressed in terms of “possibilities” and mere conjecture breed rather than foreclose uncertainty in the judicial process. In our estimation, the likelihood of changing a jury’s decision as a result of newly discovered evidence must rise considerably above the level of speculation. Otherwise, finality would be a vanishing element from all judgments of conviction in criminal cases.

The decisions dealing with the suppression or nondisclosure of exculpatory evidence are numerous. In some circumstances it has been considered relatively easy to establish grounds for a new trial: when the suppression has been deliberate or when the substantial value of evidence to the defense could not have escaped the prosecutor’s attention. See e. g., Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967). Cases involving a specific request for evidence form another category. Where the accused requests evidence from the prosecutor and it is withheld, a due process violation results if the evidence is material either to guilt or punishment without regard to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In each of these lines of cases, while there is a requirement that the evidence be material, the probable effect of such evidence on the jury’s verdict is not the sole reason for granting a new trial. An additional reason is to deter prosecutorial misconduct or negligence; to be certain that prosecutors bring to light all significant evidence which was known or should have been known to them.

None of the above mentioned considerations are involved in the case at hand. The prosecutor can bear no blame for the fact that the police report was never made available to Ross. Consequently, in deciding whether a new trial is necessary, we need not be concerned with creating a deterrent against prosecutor-ial overzealousness or ineptness which results in the unfair administration of the criminal processes. What we are seeking to protect, however, is the defendant’s individual interest in receiving and society’s generalized interest in conducting a fair trial based on all of the material evidence. In eases such as this Judge Friendly has defined the approach to be taken rather well:

“ . . . [T]he wider interests of society unite to require a substantially higher probability that disclosure of the evidence to the defense would have altered the result. To invalidate convictions in such cases because a combing of the prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict would create unbearable burdens and uncertainties.

United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968).

While the police report may possibly have been of some value to Ross in conducting his defense, we have very strong doubts that it would have resulted in a verdict of acquittal. At best, the report showed that individuals other than Ross were suspected of the Broushett robbery. It should be noted, however, that none of these individuals ever admitted involvement in this crime. Indeed, they all strenuously denied it. It is our conclusion that the report contains nothing to undermine the probative force of Broushett’s positive identification of Ross as his assailant. It surely contains nothing that would mitigate the devastating impact of Ross’ admission to Broushett at the time of the arrest that he was the robber and that he would return the money if charges were dropped. We would reach a different result if the undisclosed evidence were a laboratory report showing that another person’s fingerprints were on the knife used in the Broushett robbery. Such evidence would be of vital, critical and significant importance in determining the truth of the charges and would have a serious bearing on the fundamental fairness of the trial. See, e. g., United States ex rel. Almeida v. Baldi, 195 F.2d 815 (3d Cir. 1952), cert. denied 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341; Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964). It would make a difference too if Ross had discovered after trial an eyewitness to the crime, unknown to him but known to the prosecutor, who would have testified that he was not the robber. See Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968). But such is not the case here. We think the district court was correct in denying the petition.

Judgment affirmed.

      . Ross is presently serving a sentence of life imprisonment at the Ellis Unit of the Texas Department of Corrections. He was convicted by a jury of the crime of robbery by assault in Criminal District Court No. Six of Harris County, Texas. Following this conviction, his appeal to the Texas Court of Criminal Appeals was unsuccessful, Ross v. State, 406 S.W.2d 464 (1966), as was his subsequent attempt to petition the United States Supreme Court for a writ of certiorari, Ross v. Texas, 386 U.S. 938, 87 S.Ct. 962, 17 L.Ed.2d 811 (1967).

      . Taken from the transcript of Ross’ state court trial for robbery by assault, the full text of Broushett’s remarks are set forth below:
      Q. Did you ever have a conversation with tlie Defendant?
      A. He asked me for a cigarette and he said if I wouldn’t bring a charge against him, he would give me my money back. I said I didn’t want it; ho didn’t have any money.
      Q. And you told him, “I don’t want it" ? You said “I am filing charges against you for robbery” ?
      A. That’s right.
      Q. And this Defendant told you he was the one that robbed you?
      A. Yes, he did.
      Q. You knew he was the one that robbed you, didn’t you?
      A. Yes, sir.
      Q. You had pointed him out to the officers, hadn’t you?
      A. Yes, sir.
      Q. And he said, "If you won’t file charges against me, I will give you your $92.00 back” ?
      A. Yes, sir.
      Q. And you told him, “No” ?
      A. Yes, sir.
      Q. Has he come to you since or some of his family come to you since and offered to return that money?
      A. His mother and his wife came to my house and offered to give me $16.00 and they said they could pay me the rest, and I told them, “No.”
      Q. If you would get the charges dismissed in this case?
      A. That is what they wanted.
      Q. And you told them no?
      A. Yes, sir.
      Q. When the Defendant Willie Ross told you if you wouldn’t file’ those charges, he would give you your money back—
      A. That’s right.
      Q. Officer Mackey and Officer Hamilton were right there with you?
      A. Yes, sir.
      Q. And they heard this same conversation? Is that right?
      A. That’s right.
      The substance of Broushett’s testimony in this regard was corroborated by the two police officers who were in attendance, Officers Mackey and Hamilton.

      . In appellant’s brief the effect of the report upon the jury is forthrightly stated as follows:
      “It is true that the ultimate effect of the offense report or the information contained therein upon- the jury, had it been available to the defense, is speculative in nature.”

      . See footnote 2, supra.


source: Caselaw Access Project

author: GIBSON, Circuit Judge.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIDWEST HANGER CO. AND LIBERTY ENGINEERING CORP., Respondent.
    No. 72-1115.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1972.
    Decided Feb. 20, 1973.
    Rehearing' and Rehearing En Banc Denied March 15, 1973.

      Jonathan Axelrod, Atty., N.L.R.B., Washington, D. C., for petitioner.
    John A. McGuinn, Washington, D. C., for respondent.
    Before GIBSON and LAY, Circuit Judges, and DURFEE, Court of Claims Judge.

       United States Court of Claims Judge sitting by designation.

   GIBSON, Circuit Judge.

The National Labor Relations Board seeks enforcement of its decision and order reported at 193 N.L.R.B. No. 85. The Board found that Midwest Hanger Company and Liberty Engineering Corporation committed unfair labor practices in (1) coercive interrogation of one employee, (2) discriminatory discharge of 18 employees during a union organizing campaign, (3) threatening striking employees with discharge or other reprisal and (4) discharge of one employee at the conclusion of an unfair labor practices strike upon his unconditional offer to return to work.

Although an election petition was filed, no election has yet been held. The Board ordered reinstatement with back pay for all concerned employees and further entered a bargaining order based upon its finding that the employer’s actions precluded the holding of a valid election.

The Factual Background: The United Steelworkers of America, AFL-CIO, began its campaign to obtain recognition as the bargaining representative for the employees- of the Company on June 1, 1970, when four employees signed authorization cards. The campaign reached its peak on June 11 and 12, when the Union mailed a letter to the president of the Company requesting recognition and offering to prove its majority status by submitting the signed authorization cards to a neutral party for inspection and verification. The Company received the letter on Monday, June 15; it made no reply.

During the intervening weekend the Company, which manufactures laundry and dry cleaning products, had selected 22 employees for discharge. These terminations were attributed to an expected decline in business due to a previously announced price increase effective as of June 15. Jones, the President of the Company, testified that their customers built up large inventories between the announcement and the effective date of the price increase. This had two effects: first, it caused an increase in work load over normal levels during the period just prior to the date of increase as customers built up their stock at the lower price, and second, it caused a decrease in business after the date of the increase as these customers reduced their inventories to normal levels. The standard which the Company claimed to have used in selecting the employees to be terminated was the efficiency of the employee based on skills, attendance habits and ability. The Company contends that the employees discharged were the least efficient of its employees.

The Discriminatory Discharge: The General Counsel charges that the Company violated Section 8(a)(1) and (3) by the discharge of 18 named employees during the weekend of June 13 and 14 and thereafter. Seven of the employees were discharged during the weekend, six on Monday, June 15, and two on Tuesday, June 16. Two of the other three were discharged on July 1 and the other on August 11.

The discharge of a large numer of employees including some union leaders during a union organizing campaign would appear to be “inherently destructive of employee interests,” thus placing the burden on the Company of explaining away or justifying its action. As said in NLRB v. Great Dane Trailers, 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967):

•“From this review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer’s discriminatory conduct was ‘inherently destructive’ of important employee rights, no proof of an- antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations.”

Though a reduction in work force was clearly in order, the manner in which the Company made the reduction gave rise to a finding by the Board that the stated reasons given were pretextual.

Even though the employer may reduce its number of employees, it may not discriminate because of union activity in the selection of those to be terminated. The General Counsel relied initially on a percentage test to show that the selection procedures had been used to discriminate against the union employees. Of the 18 discharged employees, all but one had signed authorization cards. This presented a telling percentage of 95 per cent discharge of union adherents while the percentage of union employees in the plant as a whole was 70 per cent. This on its face would indicate a discriminatory discharge vio-lative of the Act. Hamilton-Brown Shoe Co. v. NLRB, 104 F.2d 49, 53 (8th Cir. 1939); see, Annot. 153 A.L.R. 841 (1944). The Company challenges these statistics by countering that other discharges of non-union adherents during the same period of time as the discharges in question would alter the figures. This may be correct, but there still exists substantial evidence in the record from which the Board could infer that the discharges questioned were discriminatory, and the Board can properly consider in context the discharges made during a crucial period of the organizing campaign.

As stated by Judge Lay in NLRB v. The Freeman Company, 471 F.2d 708 (8th Cir. 1972) :

“The rule is generally recognized that where the company demonstrates a proper business reason which standing alone would justify the company’s action affecting employees, the Board has the burden to overcome this fact and demonstrate that the reasons exercised by the company were pretex-tual. Reliance Insurance Companies v. N. L. R. B., 415 F.2d 1, 7 (8 Cir. 1969); N. L. R. B. v. Gotham Industries, Inc., 406 F.2d 1306, 1309 (1 Cir. 1969).”

We feel the Board here has carried, with exceptions later discussed, its burden of proof. Although evidence of a proper business purpose was supplied by the Company, the record contains substantial evidence to overcome the prima facie business purpose and to warrant an inference of discrimination. The most persuasive of this evidence is the showing by General Counsel that while these employees were discharged rather than laid off, the Company continued to advertise in a local newspaper for new employees, and that within a month after the discharge of -¡these employees the Company began to hire new employees to maintain the work force at the new reduced level.

These discharges must be considered along with the Company’s assertion that its biggest problem was employee turnover and the resulting inexperience of its work force. The Company alleged that the employees selected for termination were so selected because they were the least efficient of the Company’s work force. This explanation implied that the employees met the minimum level of competency required to perform the work. The Company chose to ignore this ready pool of at least minimally qualified persons when it needed additional employees to replace the normal turnover occurring after the reduction in force. Instead of utilizing previously experienced employees, it recruited new, untrained personnel. This action was inconsistent with both the reasonable needs of the business and, more importantly, with the employer’s past practice during slack business periods.

While we recognize that the National Labor Relations Act does not give the Board license to dictate the method by which an employer must reduce his work force, the Board may consider the method selected just as it does any employer action affecting employees where it finds that the action was taken for a prohibited purpose. The method selected for the reduction in work force may in itself be evidence of a discriminatory purpose when considered in light of the surrounding circumstances. The Act protects employees’ rights to organize and bargain collectively and any action taken by management to thwart that right is violative of the Act.

Majestic Molded Products, Inc. v. NLRB, 330 F.2d 603 (2d Cir. 1964), presents a factual situation sufficiently analogous to the instant case to lend authoritative support to the Board’s position. In Majestic two related companies had the same officers and shareholders and shared the same building. Both companies were unionized. During a period when a rival union was trying to gain recognition as the bargaining representative in one of the companies, Lucky Wish Products, Inc., a substantial number of employees were laid off. The company alleged that the layoff was due to a decline in business. At the same time, however, the sister company, Majestic Molded Products, Inc., increased its work force. The Court held that Majestic’s failure to hire the employees laid off by Lucky Wish, in the absence of credible evidence other than the bare statements of management that the employees laid off by Lucky Wish were not qualified to perform the work done at Majestic, would support an inference that the layoff had been made because of the union activity and not for the reasons advanced by the employer.

The Company’s failure here to preserve this group of experienced employees in combating normal attrition of workers, indicates a desire to permanently disassociate these employees from the Company, a desire which would be consistent with an anti-union motivation in the terminations. The Board, at least, could draw this permissible inference of illegal discrimination from the factual situation presented. Also casting doubt on the Company’s explanation that the employees selected for termination were the least efficient employees in the plant is the fact that the selections were made without consulting the foremen who as members of management could best evaluate job performance of the employees. Although it was proper for the Company officials to reserve to themselves the decision on the dischargees, their failure to consult with the supervisors who best know the efficiency of each employee indicates that the criteria which was followed in making the selections was focused on some other aspect of the employee’s conduct rather than efficiency.

Although the evidence in this case is conflicting on the charge of discrimination in the discharge of the named employees, there is substantial evidence from which the Board could permissibly infer discriminatory motives in the discharges, and we must enforce the Board’s Order providing for reinstatement and back pay for these employees.

Two other employees were discharged on about July 1, allegedly for excessive absences. Elaine Peukert was absent 55.5 hours between January 1 and June 16, and she had received several warnings. She was not absent from June 16 to the time of her discharge. Kim Bristow was absent on June 16 and the next day was given a written warning. On June 29, she requested the next day off to go to the doctor and received permission. On her return to work on the following day, she was informed that she was discharged for repeated absenteeism. She was not absent between June 17 and June 29. During this period both employees had engaged in overt union activities which had come to the attention of management.

The Hearing Examiner found that these two employees had been discharged in violation of the Act and the Board ordered their reinstatement with back pay. Due to the prior discharges which we have found to be an unfair labor practice, the intervening union activity and the length of time between any unexcused absence and the discharge, there is substantial evidence to support the Board’s findings and the Order will be enforced as to those two employees.

Betty Johnson was discharged on August 11 for excessive absences. The General Counsel concedes that she had been “frequently absent prior to June 6.” On June 16, she received a written warning concerning absences. She refused to sign the warning. On July 18, after several more absences, she was again given a written warning. After four more absences she was discharged. Conceding that she was active in the union organization drive, it is obvious that the employer had ample cause to discharge her for aggravated and continued absenteeism, and, in the absence of any evidence that this discharge was motivated by any prohibited purpose, we hold that the finding that the discharge was in violation of the Act is not supported by substantial evidence. We, therefore, will not order enforced that portion of the Board’s Order which required her reinstatement and back pay.

The Coercive Interrogation: John Sells applied for employment with Liberty Engineering in February 1970. At the employment interview Sells was asked how he felt about unions. He replied that in theory unions were “one of the greatest things that had ever been brought about,” but that sometimes they get misused. The interviewer told him that they might have some union trouble. Sells replied that since the plant was located in an area where most of the companies were non-union he wouldn’t have anticipated any trouble at all. Sells was hired about one week after the interview.

On June 15, the General Manager came to Sells at work and asked him if he had heard any union talk around the plant. Sells answered that he had and upon being asked how long he had heard the talk, replied “At least a couple of weeks.” The General Manager asked Sells to inform him if he heard anything else. Later that afternoon Sells was discharged.

Under the criteria set out in NLRB v. Ritchie Mfg. Co., 354 F.2d 90, 99 (8th Cir. 1966), we find there is substantial evidence in the whole record to support the Board’s finding of coercive interrogation. Under Ritchie we look not only to the questioning itself but also at the circumstances surrounding the interrogation. Ritchie pointed out five circumstances which should receive close attention. These are:

“[A] history of employer hostility and discrimination, the nature of the information sought (e. g., was the interrogator seeking information from which he could take action against individual employees), the identity of the questioner (i. e., what was his position in the company), the place and method of interrogation, and the truthfulness of the reply (e. g., did the interrogation inspire fear leading to evasive answers).” 354 F.2d at 99.

These standards had been previously enunciated by the Second Circuit in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964).

In the instant case certain of the circumstances point to the interrogation as having a coercive effect. The interrogation occurred against the background of a substantial discharge of employees at the time of the interrogation. The questioner, Ward, was the General Manager of the Company. Although the questioning took place at Sells’ work area it was under circumstances by which Sells might think that Ward had sought him out for questioning rather than having the questions occur in a casual conversation. Finally, Sells’ answers while not untruthful were evasive. Sells was one of the instigators of the union movement and was well aware of the extent of the union campaign at the time of the questioning. He did not, however, volunteer this information or any information to Ward. Management could and probably did view his answers as unsatisfactory to it; hence, his discharge.

These facts constitute substantial evidence to support the Board’s conclusion that the questioning was coercive and therefore constituted an unfair labor practice under 29 U.S.C. § 158(a)(1).

The Letter to the Strikers: It is disputed whether a letter sent by the Company to the striking workers was found to be a violation of the Act. The letter was dated October 30, and informed the employees that the plant would reopen on Monday, November 2; and that employees who did not “wish to report to work as scheduled [would] be given until Wednesday, November 4, to seriously consider [their] decision.”

In the amended complaint the General Counsel alleged that this letter contained the threat of discharge or other reprisal directed at the striking employees. No other activity of the Company which could be construed as such a threat was litigated. The Hearing Examiner found that "by threatening employees with discharge or other reprisals for engaging in a strike, the [Company] violated Section 8(a)(1) of the Act.” While the decision is not pinpointed with regard to this letter, in the context of the entire record the finding can only be construed to relate to the letter. The letter can certainly be viewed as coercive and as an illegal interference with the employees’ right to organize.

That portion of the Order which requires the employer to cease and desist threatening the employees with discharge or other reprisals is ordered enforced.

Termination of Grover Speck: On October 22, 1970, the employees on the second shift picketed the plant demanding the reinstatement of the employees discharged since June 12. They were later joined by employees from the other two shifts. Grover Speck, a long haul truck driver for the Company, was scheduled to haul a load out that evening. He arrived at the plant about 5:00 p. m. but upon the request of the strikers, refused to cross the picket line. When the strike ended and the other employees returned to work Speck was discharged. The Company alleged that the discharge was for cause putting forward four independent grounds as giving cause for discharge. These were: (1) failure of Speck to return a telephone call from the Company president relating to loads delivered before the strike, (2) uncomplimentary remarks made about the Company president during a job interview, (3) misconduct during the strike, and (4) abuse of leased equipment.

The latter two of these reasons, if true, give adequate cause for discharge. The misconduct which was alleged was that during the strike Grover Speck had followed a replacement driver, who was then operating a company truck, in an unsafe manner, at high speeds on a narrow winding road. The employer presented the testimony of the truck driver as to the occurrence of this event and it was corroborated by the Company president who saw Speck’s car leave following the truck and another Company employee who testified that he saw Speck’s car following the truck. Speck denied that the incident occurred.

The Board has held that “admitted reckless driving in pursuit of an employee in another automobile during the strike was conduct which justified [the employer] in denying his request for reinstatement.” United Brass Works, 126 N.L.R.B. 537, 545 (1960). This Court has held that if the employer had reasonable cause to believe that the striking employee had been engaging in unprotected strike activities and, in reliance on that belief, refused to reinstate him, no violation of the Act results. Local No. 3, United Packinghouse Workers of America, CIO v. NLRB, 210 F.2d 325, 331 (8th Cir.), cert. denied, 348 U.S. 822, 75 S.Ct. 36, 99 L.Ed. 648 (1954).

The Hearing Examiner found that the record did not support this defense, but no explanation of this finding was made. Although the reckless driving was not admitted by Speck, there was no finding of a lack of credibility of the three Company witnesses who testified concerning the incident. There was no finding supported by substantial evidence, or any evidence at all, that the reason for discharge was pretextual and that the true motive for Speck’s discharge was his union activities. The record clearly supports the occurrence of the incident.

Another ground which would justify the Company’s refusal to reinstate Speck was the alleged abuse of equipment used by Speck. Midwest Hanger does not own its trucks; they are leased from Schock Leasing, Incorporated. Under the terms of the lease, Midwest furnished the drivers and Schock performed all maintenance and repairs. In the case of abuse of equipment by the drivers Schock may require the Company to replace a driver. If Midwest does not do so Schock can shift the cost of repairs to Midwest. The president of Schock Leasing testified that the equipment assigned to Speck had been abused, that he had been observed operating it in an improper manner, that his equipment required excessive repairs, and that the. engine governor had been tampered with, allowing the engine to overrun, resulting in damage. The president of Schock Leasing contacted President Jones of Midwest Hanger and told him that Speck would have to be replaced. The Hearing Examiner did not credit this testimony because no documentary evidence was produced to support the testimony of the president of Schock Leasing.

There appears to be no reason to discredit the testimony of the president of Schock Leasing for failing to bring in books and records to support his testimony. The “best evidence” rule is not applicable here; he did not testify as to the contents of the records. If there was any doubt in the mind of the General Counsel, the records were equally available to him through the use of the discovery procedures provided. There is no reason to believe that the witness was other than a disinterested third party. It is also relevant to note that the central thrust of the testimony, the fact that Schock Leasing told Midwest Hanger that Speck would have to be replaced, would not be found in the records.

The Board’s decision that Grover Speck was discharged because of his union activities is not supported by substantial evidence on the record considered as a whole. While we recognize that strikers are generally entitled to reinstatement upon their unqualified offer to return to work, subject to the availability of a job in the case of an economic striker, such a right is not absolute; there are certain recognized exceptions to the rule. Both of the reasons which we have discussed fall within such exceptions. After the employer has offered legitimate business reasons which would justify his actions, the Board plainly has the burden of going forward and offering evidence that the reasons advanced were pretextual. NLRB v. The Freeman Co.,, supra. The General Counsel’s bare contention that this discharge was motivated by Speck’s union activity is unsupported by any evidence whatsoever and further is refuted by the record; no other striking employees were discharged and this discharge was isolated by more than four months from the other discharges associated with union activity in the plant. That portion of the Board’s order which requires reinstatement and back pay for Grover Speck is denied enforcement.

The Bargaining Order: On the basis of the unfair labor practices which had been found, the Board concluded that since the Union had acquired cards from a majority of the employees and since the employer’s conduct had tended both to destroy that majority and to negate the likelihood of a future fair election, a bargaining order would be appropriate. The employer challenges this bargaining order on the sole grounds that it committed no unfair labor practices. We have found substantial evidence to support the findings of unfair labor practices as to all those charges except the discharge of Grover Speck and Betty Johnson. In view of these findings the contention of the employer is without merit and the bargaining order is granted enforcement.

The Board’s Order is enforced except for that portion which requires reinstatement and back pay for Grover Speck and Betty Johnson.

      . These two companies have a common ownership and management and occupy the same building, employing approximately 90 production and maintenance persons. Reference hereafter will be as to the Company and will include either or both companies as appropriate.

      . These employees were Ronald Great-house, David Covey, Virgic Peterson, Margaret Buckley, Sharon Meier, James Walter Forbis, .Tolm Ashby, Marilyn Kimberlin, Shirley Lauderdale, William Greathouse, June Elliott, Joseph DeMent, Michael Owens, Charles Lankford and John Sells. These employees were all discharged over the weekend of June 13-14 or the two days following. Three other employees were found to have been discharged for union activities, however their discharges were removed in time from the discharges due to the decline in business and the employer did not allege that these employees were discharged for that reason. These three discharges will be discussed separately.

      . The Company hired seven employees in the latter half of June, ten in July and 22 in August.

      . This would not necessarily be true where there was some system of employee evaluation in effect by which the higher management officials would have a valid gauge available to objectively measure the employee’s abilities.

      . The Fifth Circuit added a caveat in NLRB v. Camco, Inc., 340 F.2d 803, 804 (5th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965). The Court said, “This list is not intended to be definitive and . . . intimidation may occur even if all these factors cut in favor of the employer. [Bok] warns [Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act, 78 Harv.L.Rev. 38, 107 (1964)] that ‘employers must beware of interrogation unless (1) they have a valid purpose for obtaining information concerning the union’s strength; (2) they communicate this purpose to the employees; and (3) they assure the employees that no reprisals will be taken.’ ” The Court there points out that even though the factors favor the employer under the Bourne test, intimidation may nevertheless occur if the employer does not heed the warning of Cameo. This seems to be sound advice.


author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. NORTHSIDE REALTY ASSOCIATES, INC., and Ed A. Isakson, Defendants-Appellants.
    No. 72-2151.
    United States Court of Appeals, Fifth Circuit.
    March 14, 1973.
    See also D.C., 324 F.Supp. 287.

      Harold L. Russell and Lloyd Sutter, Atlanta, Ga., for defendants-appellants.
    Thomas M. Keeling, Atty., Housing Section, Dept, of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Frank E. Sehwelb and Harold H. Moore, Civil Rights Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   GOLDBERG, Circuit Judge:

This is an appeal from an order enjoining appellants, Northside Realty Associates, Inc. and its Executive Vice President, Ed A. Isakson, from violating the Fair Housing Act of 1968. Although we are unable to ascertain the precise legal rationale for the District Court’s decision, the Court apparently based its decision on constitutionally impermissible grounds. We therefore remand for fresh findings of fact and conclusions of law.

This action was brought by the Civil Rights Division of the Justice Department pursuant to Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., alleging that appellants had engaged in a policy and practice of racial discrimination against Blacks with respect to the purchase and sale of homes in the Metropolitan Atlanta, Georgia area. The government sought injunctive relief, claiming that appellants’ actions constituted a pattern or practice of resistance to the Fair. Housing Act of 1968, and had denied groups of persons rights granted by the Act raising an issue of general public importance. See 42 U.S.C. § 3613.

After a three day non-jury trial, the District Court made the following pertinent factual findings:

Northside Realty Associates, Inc. is incorporated under the laws of the State of Georgia and is licensed to engage in the listing and selling of real estate. Its executive vice president, Ed Isakson, is also the sales manager for one of the Company’s seven residential sales offices. Although Ed Is-akson has not advertised, sold or shown any residential property since 1960, his broker’s license inures to the benefit of the Company.
Northside, through its 165 salespeople and its brokers, acts as agent for listing sellers by presenting offers on behalf of potential buyers. Commissions are paid by the sellers when sales are consummated. The majority of such sales involve single family dwellings while a smaller proportion involve lots and multiple dwellings or commercial property. In the three years since the effective date of the Fair Housing Act, not a single one of the more than 3,000 homes sold by Northside has been sold to a black person.
Prior to the effective date of the Fair Housing Act, Ed Isakson violated the provisions of the Act by treating a black couple, the Bowers, in a discriminatory manner when he: (1) failed to discover the Bowers’ total financial potential before determining what priced house they could afford; (2) denied that Northside had any houses listed within the price range of the Bowers without consulting the listing book or the agents in the office; and (3) referred the Bowers to a black real estate broker without “co-operating” or receiving a referral fee, when he had never referred a white buyer to a black real estate broker. This violation evidenced a pre-Act practice of violating the Fair Housing Act.
Subsequent to the effective date of the Fair Housing Act, Ed Isakson violated the provisions of the Act on two separate occasions. On one occasion he discriminated by denying to a prospective black buyer that he, Isakson, sold real estate, without explaining that Northside Realty, of which he was executive vice-president, did; and by immediately referring the black buyer to two other real estate companies that sold primarily to Blacks. Is-akson subsequently held this mode of behavior out as a model to be employed by white real estate people who did not wish to deal with Blacks. On a second occasion, Isakson violated the Act by showing an intention not to co-operate with a black real estate broker unless ordered to do so by the District Court.
Finally, Isakson manifested an intent not to comply with the Fair Housing Act by stating that Congress had exceeded its constitutional authority in enacting the Fair Housing Act.

After making the above findings of fact and conclusions of law, the Court held :

“The Court finds that Mr. Isakson’s intentions [to resist compliance with the Act] have manifested themselves in his actions and that black people as a group have thereby been denied the protection guaranteed by the Act. This denial of protection is of sufficient importance to authorize the relief herein.”

The Court then enjoined appellants from further discriminatory conduct and ordered them to take affirmative action to prevent future discrimination.

Appellants attack the District Court’s order on a number of grounds:

(1) The two post-Act violations of the Fair Housing Act that the District Court found occurred were insufficient to raise an issue of general public importance justifying the granting of injunctive relief.
(2) The District Court’s finding that appellant Isakson violated the Act was insufficient to support the conclusion of wrongdoing by Northside Realty.
(3) A finding of only one pre-Act violation does not support a finding of a pre-Act pattern or practice of violating the Fair Housing Act.
(4) The District Court’s finding that appellant Isakson violated the Act on three occasions was based upon a legally impermissible inference drawn from Isakson’s constitutionally protected challenge to the Act arid was clearly erroneous.

We find that appellants’ first two contentions are without merit but that his third and fourth points require that we remand to the District Court for further proceedings.

I. PUBLIC IMPORTANCE

Appellants urge that the District Court’s finding of two post-Act violations by Mr. Isakson is insufficient to establish an issue of general public importance and that injunctive relief is therefore not authorized by 42 U.S.C. § 3613. This contention is meritless. The question of what constitutes an issue of general public importance is, absent specific statutory standards, a question most appropriately answered by the executive branch. United States v. Bob Lawrence Realty, Inc., 5 Cir. 1973, 474 F.2d 115. See United States v. Greenwood Municipal Separate School Dist., 5 Cir. 1969, 406 F.2d 1086, 1090; Boyd v. United States, E.D.N.Y.1972, 345 F.Supp. 790, 794. Just as in his determination whether to prosecute a criminal case, the Attorney General must have wide discretion to determine whether an issue of public importance is raised. “Once the Attorney General alleged that he had reasonable cause to believe that a violation of . [the Fair Housing Act] denied rights to a group of persons and that this denial raised an issue of general public importance, he had standing to commence an action in District Court and to obtain injunctive relief upon a finding of a violation of the Act.” United States v. Bob Lawrence Realty, Inc., supra,, 474 F.2d at p. 125 n. 14 (citations omitted).

II. CORPORATE LIABILITY

Northside Realty argues that the District Court’s findings of one pre-Act violation and two post-Act violations by the individual appellant, Ed Isakson, are insufficient to impute liability to the corporate appellant, Northside Realty. Northside urges that the District Court’s finding of corporate liability does not comport with this Circuit’s decision in Standard Oil Co. of Texas v. United States, 5 Cir. 1962, 307 F.2d 120, because (1) the evidence fails to establish that Isakson was acting within the scope of his employment when the violations occurred, since by stipulation Isakson is not normally a real estate salesperson, and (2) Isakson was not shown to have been acting with the purpose of benefiting the corporate appellant when he violated the Act. In light of the fact that Ed Isakson (1) is the Executive Vice President of Northside Realty, (2) is the broker whose license inures to the benefit of the corporation and enables it to engage in the business of selling real estate, and (3) directly supervises one sales office of Northside Realty and is in charge of hiring or selecting the sales managers for the other Northside offices, we do not think it clearly erroneous for the District Court to conclude that appellant Isakson acted within the scope of his duties when he spoke to customers at the office that he supervised and when he discussed sales policy with other people in the real estate business. Nor do we think the District Court was clearly erroneous in finding that these activities were conducted with the intention of benefiting the corporation for which Isakson served as executive vice president. See Standard Oil Co. of Texas v. United States, supra.

III. THE AMBIGUITIES OF THE DISTRICT' COURT’S ORDER

42 U.S.C. § 3613 authorizes the District Court to grant injunctive relief pursuant to a complaint by the Attorney General if the court finds (1) an individual pattern or practice of acts violating the Fair Housing Act, see United States v. Reddoch, 5 Cir. 1972, 467 F.2d 897; United States v. West Peachtree Tenth Corp., 5 Cir. 1971, 437 F.2d 221; or (2) a group pattern or practice of violating the Act, see United States v. Bob Lawrence Realty, Inc., 5 Cir. 1973, 474 F.2d 115; or (3) that an act, or acts violative of the Fair Housing Act denied a group of persons rights protected by the Act, see United States v. Bob Lawrence Realty, Inc., supra.

In considering the Attorney General’s request for injunctive relief in the instant case, the District Court stated the issue in this manner:

“The question before this Court is whether the [government] has met [its] . . . burden of proving that Northside Realty and Ed Isakson have engaged in a discriminatory ‘pattern or practice’ of selling real estate.”

However, the Court subsequently held:

“The Court finds that Mr. Isakson’s intentions [to resist compliance with the Act] have manifested themselvas in his actions and that black people as a group have thereby been denied the protection guaranteed by the Act. This denial is of sufficient public importance to authorize the relief herein granted.”

The District Court’s conclusion of law thus does not respond to its statement of the issue, and we are unable to ascertain clearly the legal rationale of the court’s decision. The court might have based its granting injunctive relief: (1) upon a finding that the Bowers incident evidenced a pre-Act pattern or practice of violating the Fair Housing Act that was continued after the effective date of the Act; or (2) upon a finding that Isak-son’s verbal challenge to the constitutionality of the Fair Housing Act evidenced an intent to violate the Act that was carried out in two post-act incidents; or (3) upon a finding that two post-Act incidents violated the Act and evidenced a pattern or practice of violating the Act; or (4> solely upon a finding that the two post-Act incidents violated the Act and denied rights protected by the Act to a group of persons.

Appellants argue that the District Court’s order was based on a find-ing that appellant Isakson’s conduct toward the Bowers established ¿ pre-Fair Housing Act pattern or practice of discriminatory conduct that the Court felt was continued by appellants subsequent to the effective date of the Act. In United States v. West Peachtree Tenth Corp., supra, we discussed the meaning of the terms “pattern or practice” as utilized in 42 U.S.C. § 3613: “The words ‘pattern or practice’ were not intended to be esoteric words of art. There is nothing magic in their meaning. To be sure, they were intended to encompass more than an ‘isolated or ae-cidental or peculiar event.’ ” United States v. West Peachtree Tenth Corp., supra, 437 F.2d at 227 (citations omitted). Although, “[e]aeh case must turn on its own facts,” id., we do not think that the District Court’s finding of one pre-Act violation, standing alone without á finding of any other factors to support its decision, can justify a finding of a pre-Act pattern or practice. The District Court could thus not properly base a finding of a Post-Act pattern or practice solely on a finding that the Bowers incident evidenced a pre-Act pattern or practice that subsequently was continued.

Appellants also urge that the District Court’s finding that appellant Isakson violated the Fair Housing Act on three occasions was predicated upon a legally impermissible inference of wrongful intent that the Court deduced from Isak-son’s constitutionally protected challenges to the authority of Congress to pass the Fair Housing Act. Appellants also contend that the District Court’s findings in this regard were clearly erroneous.

In a pre-trial statement entered into the record, Isakson stated:

“I am familiar with the Fair Housing or Civil Rights Act of 1968; and I know that the Act makes certain actions illegal, so far as Congress has authority within the limitations of the U. S. Constitution to make such actions illegal. Although I believe that my firm and I have complied with the Act, I personally believe that Congress may have exceeded its authority under the Constitution in enacting the Act and I intend to challenge Congress” action in this litigation in hopes that this Court will interpret the law and decide the case in my favor.”

The District Court held:

“The Court takes note that the government filed this case and presented it with little evidence to support its position that the defendants were engaged in a pattern or practice of discrimination. At the time suit was filed, the government’s case consisted of one pre-Act incident and one post-Act incident (which later failed of proof). Mr. Isakson’s own actions and statements that Congress has exceeded its constitutional limitations, however, indicate his intention on behalf of himself and the company to resist compliance with the purposes of the Fair Housing Act. The Court finds that Mr. Isakson’s intentions have manifested themselves in his actions and that black people as a group have thereby been denied the protection guaranteed by the Act. This denial of protection is of sufficient public importance to authorize the relief herein granted.”

We seriously doubt that the learned court below would have based its finding that appellants violated the Fair Housing Act on an unconstitutional ground, however, its opinion is ambiguous on this point. Certainly if the District Court did base its decision that appellants violated the Fair Housing Act upon appellant Isakson’s challenge to the constitutionality of the Fair Housing Act, its decision would be fatally infirm. Due process of law demands that a party not be penalized for exercising his right to raise the defense that the Act which he is being charged with violating is unconstitutional. United States v. Butler, 6 Cir.. 1968, 389 F.2d 172, cert. denied, 1968, 390 U.S. 1039, 88 S.Ct. 1636, 20 L.Ed.2d 300; cf. Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. “Moreover, the First Amendment, which protects a controversial as well as a conventional dialogue, . extends to petitions for redress of grievances as well as to advocacy and debate.” Whitehill v. Elkins, 1967, 389 U.S. 54, 57, 88 S.Ct. 184, 185, 19 L.Ed.2d 228, 231 (citations omitted).

Individuals accept the role of martyrs by defying laws to test their constitutionality, and if the laws are found to be constitutional the individual must accept the inexorable consequence, martyrdom; but our Constitution forbids that anyone should be found to have violated a law for opining that the law is unconstitutional. The proposition is too axiomatic to explicate that a person can express an opinion that a law is unconstitutional, and Isakson for a thousand times could have declared with impunity that the Fair Housing Act is unconstitutional, for these asseverations may not constitute proof of a violation. Isakson may well suffer the sanctions of law for what he did, for after reading this record, we do not find that the District Court was clearly erroneous in finding that appellants violated provisions of the Fair Housing Act; however, we want to remove any clouds of uncertainty and thus clear away all possibility of any miasma of dubiety. We know that the learned trial judge would not want us to wallow in doubt, and we cannot affirm if there is the slightest possibility that his decision rested upon a constitutionally impermissible ground. United New York and New Jersey Sandy Hook Pilots Asso. v. Halecki, 1959, 358 U.S. 613, 79 S.Ct. 517, 523, 3 L.Ed.2d 541; Street v. New York, 1969, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572; Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

The government correctly urges that if we ignore the District Court’s statements concerning appellant Isakson’s challenge to the validity of the Fair Housing Act, the District Court’s finding that Isakson committed two post-Aet violations is not clearly erroneous and would alone support the granting of injunctive relief. Appellants correctly urge that if the District Court made those findings of post-Aet violations relying upon its drawing of unconstitutional inferences from Isakson’s challenge to the Act, its order is fatally infirm and must be reversed. “In effect, the parties urge that we pick and choose to come to conclusions each asserts is required under the clearly erroneous concept. But this is not our role. It deprecates the function of the trial. Armed with the buckler and shield of F.R.Civ.P. 52(a), as findings come to us, we can perform our limited role only as we know with reasonable assurance just what the Judge has found.” Mladinich v. United States, 5 Cir. 1967, 371 F.2d 940, 942 (citations omitted). Since we are unable to ascertain either the principle of law the District Court applied or the constitutional propriety of its fact findings, we think that justice demands that we remand this case to the District Court for a reconsideration of the facts in light of this opinion and for new conclusions of law.

The record could support findings and conclusions of law that justify equitable relief, but we must be able to read such findings clearly and distinctly. The trial court’s findings are only clearly erroneous if they were based (1) on a belief that Isakson’s claimed intention to test the constitutionality of the Fair Housing Act showed an intent to violate the Act, or (2) on the finding that the Bowers incident standing alone evidenced a pre-Act pattern or practice. We must be absolutely certain that the trial court’s findings were not tainted by a belief that Isakson’s challenge to the constitutionality of the Act was probative of an intent to violate the Act. If this theory prevailed, no one could verbalize constitutional rights or theories. If the trial court found a violation because of Isakson’s constitutional opin-ionativeness, this finding' is repugnant to the First Amendment. We are constantly vigilant lest the non-conformist be chilled in the expression of ideas, and we must be just as watchful of any idea-tional concept, regardless of its source or content.

We recognize that the specificity and exactitude of a blueprint is not essential to findings of a violation of the Act. We remand for clarity to be certain that Isakson’s public declaration of a constitutional opinion did not become the basis for a finding of a violation and that the trial court’s decision was thus not sullied by an impermissible inference. Therefore, in reconsidering its order, the District Court may not consider appellants’ challenge to the constitutionality of the Fair Housing Act as probative of a violation of the Act. If it again finds that appellants' activities violate the Act, it should then grant injunctive relief only upon a finding that appellants participated in a pattern or practice of violating the Act or upon a finding that appellants have denied a group of persons rights granted by the Act. We express no opinion as to the appropriate determination of this matter on remand. We merely direct the District Court to enter fresh findings of fact and conclusions of law, not inconsistent with this opinion.

Remanded.

      . 42 U.S.C. § 3613 (Section 813, Civil Rights Act of 1968)
      SEC. 813(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by this title, or that any group of persons has been denied any of the rights granted by this title and such denial raises an issue of general public importance, he may bring a civil action in any appropriate United States district court by filing with it a complaint setting forth the facts and requesting such preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for such pattern or practice or denial of rights, as he deems necessary to insure the full enjoyment of the rights granted by this title.

      . In addition, the District Court found that allegations concerning statements made by one of Northside Realty’s sales agents were irrelevant because those statements, even if proved, would not represent the sales policy of Northside Realty. The District Court also found that the allegations of one of the government’s witnesses were not proved, not that they were “perjured” as appellants continually and erroneously state in their brief.

      . The District Court issued the following injunction:
      NOW THEREFORE, pursuant to the foregoing Findings of Fact and Con-elusions of Law, IT IS ORDERED, ADJUDGED AND DECREED that the defendants Northside Realty Associates, Inc., Ed A. Isakson, all the corporate defendant’s officers, employees, brokers, agents and all persons in active concert or participation with any of them are enjoined from:
      (1) Failing or refusing to negotiate for the sale of any dwelling, and from making any dwelling unavailable to any person because of race, color, religion, or national origin;
      (2) Discriminating against any person in the terms, conditions, or privileges of purchase of a dwelling; or in the services or facilities connected with such sale or purchase or with real estate brokerage, because of race, color, religion or national origin;
      (3) Representing, explicitly or im-plicity, to any person because of race, color, religion or national origin, that any dwelling is unavailable for sale or inspection when such dwelling is, in fact, available;
      (4) Discriminating against any person or persons on account of race, color, religion or national origin with respect to engagement of his services by defendants or any of them ;
      (5) Failing or refusing to cooperate with any broker or any representative of any corporate or individual broker, with respect to the sale or negotiation for sale of any dwelling, because of the race, color, religion, or national origin of the broker, the sales person, or the client on whose behalf such available dwellings are being sought, or because of racial occupancy patterns in any place or area.
      IT IS FURTHER ORDERED that the defendants shall forthwith adopt and implement the following affirmative program to assure nondiscriminatory treatment of Negroes and to correct the effects of their past discriminatory practices and image:
      (1) The defendants shall, within 30 days of the entry of this Order, conduct an educational program for its sales personnel and other agents and employees to inform them of the provisions of this decree and their duties under the Fair Housing Act. Such a program shall include the following:
      (a) A copy of this decree shall be furnished to each salesperson and other employee ;
      (b) By general meeting or individual conference, the defendants shall inform each salesperson and other employee of the provisions of this decree and of the duties of the company and its agents and employees under the Fair Housing Act.
      (2) Throughout the calendar years 1972 and 1973, the defendants shall maintain separate records on each inquiry from potential buyers and/or sellers who are identified or are identifiable as members of the Negro race. E'ach record should include the following information :
      (a) the inquirer’s name;
      (b) the services requested or desired;
      (c) the services actually rendered;
      (d) the name of the person and the office handling the inquiry or transaction ;
      (e) the date of the initial inquiry;
      (f) the date the service, if any, was rendered ;
      (g) if no service was rendered, the reason therefor.
      The defendant shall maintain these records as permanent files of the company for three years from this date unless further ordered by this Court. Furthermore the defendants shall make these records available for inspection by a representative of the Attorney General of the United States at six-month intervals during 1972 and 1973.

      . See note 1, supra.

      . Appellant also urges that the District Court failed to make findings with respect to material issues required by Rule 52(a) Fed.R.Civ.P. because it failed to specifically comment on all of the evidence adduced by appellants. In light of our disposition of this matter we think it suffices to note that “Courts need not indulge in exegetics, or parse or declaim every fact and each nuance and hypothesis,” Gulf King Shrimp Co. v. Wirtz, 5 Cir. 1969, 407 F.2d 508, 516, and that “there is absolutely no indication that the trial court did not consider the evidence that appellants claim was ignored. All of the facts were admitted into evidence and the trial court’s failure to mention each and every specific item in its memorandum opinion in no way indicates that they were not considered, weighed, and rejected as inconclusive.” Ramey Const. Co., Inc. v. Local Union No. 544, 5 Cir. 1973, 472 F.2d 1127.


author: EDWARDS, Circuit Judge.

text:
    INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW and its Local 647, UAW, Plaintiffs-Appellants, v. GENERAL ELECTRIC COMPANY, INC., Defendant-Appellee.
    Nos. 72-1619, 72-1620.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 12, 1972.
    Decided March 6, 1973.
    John A. Fillion, Detroit, Mich., for appellants-cross-appellees; Stephen I. Schlossberg, Detroit, Mich., Bernard C.

      Fox, Beckman, Lavercombe, Fox & Weil, Cincinnati, Ohio, on the brief.
    J. Mack Swigert, Cincinnati, Ohio, for appellee-eross-appellant; Robert W. Maxwell II, Cincinnati, Ohio, on the brief; Taft, Stettinius & Hollister, L. S. Stek, Cincinnati, Ohio, of counsel.
    Before EDWARDS, CELEBREZZE and PECK, Circuit Judges.
   EDWARDS, Circuit Judge.

This ease involves 3,600 grievances, a major labor dispute, the memorandum agreement by which that labor dispute was settled, and the laws of this country pertaining to arbitration. Nonetheless, the efforts of the parties themselves and those of the District Judge who heard this case at the trial level have resulted in an appellate record of manageable proportions.

As the International Union, United Automobile Aerospace and Agricultural Implement Workers of America and the General Electric Company, Inc., approached the termination date of their 1963-66 labor-management agreement for the General Electric plant at Even-dale, Ohio, one of the major issues concerned how to dispose of a huge backlog of grievances which had not been resolved under two prior contracts, the then existing contract and its predecessor for the years 1960-63. Under the pressure of a possible strike, and with the mediation assistance of the United States Department of Labor's mediation service, the parties met in Washington, D. C., and ultimately on December 4, 1966, signed a memorandum agreement which in certain respects amended and in other major respects extended the 1963-66 agreement. Paragraph 4 of that memorandum agreement dealt specifically with the problem of the backlog of grievances:

4. With respect to the grievance backlog, the parties agree that active grievances at 2nd, 3rd, and 4th Steps on December 4, 1966, will be combined for the purpose of expediting processing.

The International Representative of the Union will review all unresolved grievances which were active at the 2nd, 3rd, and 4th Steps of the grievance procedure on October 17, 1966, for the purpose of eliminating and disposing from any further consideration, a substantial number of such grievances. The remaining active grievances will thereupon be referred to Step 3 of the grievance procedure set forth in Article XXII of the 1966-1969 Agreement for expedited consideration.

Should any of the grievances remain unsettled after such expedited consideration at Step 3, they will then be referred to a special committee for further efforts toward resolution. The Committee will be composed of the Manager of Union Relations, a Staff Representative, and a specialist from the Union’s International Headquarters. Such grievances as may remain unsettled after consideration by the Committee will be categorized by the Committee into one of the following categories:

A. Grievances which are (1) arbi-trable as a matter of right under the terms of the 1963-1966 collective bargaining agreement and as to which either party will determine whether it desires to proceed to arbitration and (2) arbitrable under the 1963-1966 agreement by mutual agreement.
B. Grievances which would constitute a contract violation but which are deemed to be non-arbitrable by the Company under the terms of the 1963-1966 Agreement. 'íhe Union will determine whether or not they wish to strike or proceed in court on such grievances under the terms of Section 301 of the Taft Hartley Act.
C. Non-contractual grievances. Should any of such grievances be issues upon which the Union elects to strike, it shall give ten days notice thereof to the Federal Mediation and Conciliation Service. The Company should be simultaneously notified. The grievance backlog program shall be conducted during the period January 3, 1967 through April 3, 1967, at the end of which period the Special Grievance Committee will be dissolved, and all matters connected with the issue of backlog of grievances shall be deemed settled for all purposes, excepting only such arbitration proceedings initiated or court actions which may have been filed, or any non-contractual grievances in mediation, or where notice of intent to strike has been given.

Between December 4, 1966, and April 3, 1967, the parties met and sought to resolve as many of the grievances as possible. It is clear from this record that during this period the total backlog of grievances from 1960 down to Decem-ber 4, 1966, were under negotiation and that a number of grievances from the 1960-63 period were resolved along with numbers of - grievances from the 1963-66 period.

Nonetheless, as of April 3, 1967, a formidable number of grievances still remained as to which there was no agreed-on solution and as to which the union claimed the absolute right to arbitration under the contract and the company asserted that, under the same contract, no such right existed. Thereupon the union filed suit in the United States District Court for the Eastern District of Michigan under Sec. 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a) (1970) for a decree compelling arbitration. The case was transferred to the United States District Court for the Southern District of Ohio and there was heard by a District Judge in the Western Division.

The parties then filed a stipulation classifying the grievances into six classes (plus two individual grievances grouped generally with the B2 class) and agreeing upon a typical grievance as illustrative of the class concerned. The chart below is an attempt to present the stipulation in skeleton form:

Exhibit No. Brief description of grievance Contract period during which grievance arose
Al Working in higher class 1963-66
A2 Working in higher class 1960-63
B1 Supervision or salaried personnel working on bargaining unit. 1963-66
Company says not bargaining unit work.
B2 Supervision or salaried personnel working on bargaining unit. 1960-63
. Company says not bargaining unit work. (Also 2AFN and 88E2 (past Step 4))
Cl Supervision working in bargaining unit. 1963-66
Company admits bargaining unit work, but claims is justified under contract.
C2 Supervision working in bargaining unit. 1960-63
Company admits bargaining unit work, but claims is justified under contract.

The complaint in this case was filed April 3, 1967. The parties then filed exhibits and the stipulation referred to, along with cross-motions for summary judgment. The District Judge after argument of those motions entered an extensive memorandum on November 7, 1969, deciding all issues presented, except whether or not the 1960-63 grievances covered by the B2 and C2 classifications were arbitrable. On this issue he conducted an evidentiary hearing on May 17, 1971, and subsequently decided same by Memorandum Decision of January 24, 1972. A final judgment was entered April 20, 1972.

The District Judge held that:

(1) Defendant was entitled to judgment as a matter of law with respect to grievances in the Al and A2 classifications.

(2) Plaintiffs were entitled to judgment with respect to grievances listed in the B1 and Cl classifications.

(3) Defendant was entitled to judgment as a matter of law as to the grievances listed in the B2 and C2 classifications.

He held that defendant was also entitled to judgment as a matter of law as to grievances 2AFN and 88-E2 listed in the B2 classification separately.

Some of the complications in this appeal can quickly be ' eliminated. For reasons of its own, the company has not appealed the District Judge’s order that the Cl grievances be arbitrated. Additionally, our inspection of the Memorandum Agreement of December 4, 1966, indicates that it contains no language which shows an intention of the parties to include in the “grievance backlog” the two individual grievances from the 1960-63 period which had already gone beyond step four. The backlog which the Memorandum of Settlement decided to deal with is clearly defined as “active grievances at 2nd, 3rd and 4th steps on December 4, 1966.” Hence, we affirm the Distl’iet Judge on this issue.

This then leaves us with three issues on this appeal, each of them pertaining to a class of grievances, of course. (1) The union apeals the District Judge’s decision, holding that Al and A2 grievances are not arbitrable because of his holding that there is no contract language prohibiting management from working an employee out of classification. (2) The company appeals from the District Judge’s decision holding that B1 grievances pertaining to supervisors doing work in the bargaining unit were arbitrable grievances because of ambiguity existing as the result of conflict between two terms of the 1963-66 agreement. (3) Finally, the union appeals the District Judge’s holding that under the Memorandum of Settlement of December 4, 1966, all 1960-63 grievances (A2, B2 and C2) were excluded from arbitration because of the Memorandum of Settlement’s employment of the language “under the terms of the 1963-66 agreement.” We affirm the District Judge on the first and second issues and reverse on the third.

We believe the District Judge handled and decided the first and second issues with full recognition of the strong federal preference for arbitration set forth in the Steelworkers trilogy: United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Illustrative of that preference is this language from the Worrier & Gulf case:

The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. United Steelworkers v. Warrior & Gulf Navigation Co., supra at 582-583, 80 S.Ct. at 1353. (Footnote omitted.)

THE A1-A2 GRIEVANCES

The disposition of the union’s appeal from the District Judge’s denial of an arbitration order concerning the A1 grievance classification requires some additional facts concerning the arbitration clauses in the 1963-66 labor-management contract between these parties. While the contract contains a fairly elaborate arbitration clause, it clearly does not provide for compulsory arbitration of all grievances or for that matter for an absolute no strike clause. Management’s right to reject arbitration (with specific named exceptions) is reserved in Article XXIII, paragraph 2, and the union’s right to strike in the event of the company’s refusal to arbitrate is reserved in article XXIV, paragraph 2.

Further, the 1963-66 contract does not contain the broad arbitration clause of the preceding 1960-63 contract. For reasons best known to the parties, Article XXIII dealing with arbitration in the 1963-66 contract was substantially changed to read as follows:

ARTICLE XXIII

ARBITRATION

1. Any grievance which involves the interpretation or application of this Agreement and which remains unsettled after having been fully processed pursuant to the provisions of Article XXII shall, notwithstanding the Company’s right to refuse to arbitrate grievances, as reserved in Article XXIV, para. (2), be submitted to arbitration upon written request of either the Union or the Company, provided such request is made within 30 days after the final decision of the Company has been given to the Union pursuant to Article XXII, and provided such requests directly raises an issue which is either

(a) a disciplinary penalty, consisting of a warning notice, a suspension, or a discharge, which penalty is imposed on or after the effective date of this Agreement, and is alleged to have been imposed without just cause, but not a disciplinary penalty effected under Company Policy 20.4;

or

(b) an alleged violation of one of the following provisions of this Agreement:

There follow 17 specifically enumerated articles with specific exceptions excluding arbitration in eight of them.

It thus appears that the arbitration clause in the 1963-66 contract was written with great particularity as to what was and what was not subject to arbitration. As the District Judge noted, the strong preference in the federal law favoring arbitration does not allow the courts to order arbitration of an issue which the parties have not agreed to arbitrate. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1963); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1961); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); District 50, UMW v. Chris-Craft Corp., 385 F.2d 946 (6th Cir. 1967).

The union relies upon the listing of Article VIII in the list of 17 arbitrable articles. Article VIII is, however, listed with an exclusionary clause:

Article VIII, Rates of Pay, including violation of the provisions on starting rate, transfer rate, progression, and merit increase, but excluding any issue pertaining or relating in any way to the establishment, changing or elimination of a job classification or a wage rate, or the method by which an employee is paid.

The typical grievance chose as representative of the Al and A2 classifications follows:

NATURE OF GRIEVANCE (Contract Article Violated):
Working over classification DESCRIBE SPECIFICALLY WHAT HAPPENED
(Who, When, What, Where, How, Etc.) : Flo MeMillen worked two days identifying sorting and segregating mixed parts in the C.E.O. warehouse. They do not have an inspector there THE UNION’S POSITION:
This is not an R-12 job it is an R-15 inspectors job. That she be paid R-15 pay for 16 hrs.

The exclusionary language following the listing of Article VIII as set forth above must be read as specifically excluding from arbitration the exact type of dispute over an employee working out of classification as is described in the typical grievance.

We have carefully inspected Article VIII upon which the union relies to show an ambiguity which requires arbitration. It does not contain any provision which even arguably prohibits working an employee over classification. And the union does not seek to identify any such language elsewhere in the agreement. On this issue we find no ambiguity to trigger the Warrior & Gulf rule. This issue is, we believe, governed by the settled law of John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1963):

“Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.” Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462. Accord, e. g., United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409. . . .
The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all. Id. at 546-547, 84 S.Ct. at 913.

On this issue the judgment of the District Court is affirmed.

THE B1 GRIEVANCES

The District Judge ordered arbitration of grievances classified under the B1 list attached to the stipulation of the parties. The- grievance chosen in this stipulation as typical of those on the B1 list is described as follows:

NATURE OF GRIEVANCE (Contract Article Violated):
Overtime
DESCRIBE SPECIFICALLY WHAT HAPPENED
(Who, When, What, Where, How, Etc.): Two salaried employees on 1/9/66 performed bargaining unit work on Machine No. P425. Neither Machine Operator nor Union Representative, was notified; present or aware of the operation, during this mal-practice.

Each party argues a contract provision as directly applicable. Plaintiffs rely upon Article XXV, paragraph 3, which says:

3. Supervisors or salaried personnel will not perform work on any job within the Bargaining Unit except in cases of emergency, or when no qualified employee is available, or when instructing an employee.

Defendant relies upon Article XXIII, paragraph 4(iv), which provides:

In addition, and notwithstanding any contrary provision of this Article, no issue shall under any circumstances be subject to arbitration if it pertains or relates in any way to:
(iv) the assignment of work to, or the performance of work by, persons outside the bargaining unit; . . . .

The District Judge found that the language of Article XXV, paragraph 3, was specific and the language of Article XXIII, paragraph 4(iv), was more general and gave precedence to the more specific provision thereby finding for plaintiffs on this issue.

We think that under the Warrior & Gulf rule quoted above, the District Judge’s arbitration order was appropriate because in any event the conflict between the two clauses created a clear ambiguity. Carey v. General Electric Co., 315 F.2d 499 (2 Cir.), cert. denied, 377 U.S. 908, 84 S.Ct. 1162, 12 L.Ed.2d 179 (1963). As to this issue the judgment of the District Court is affirmed.

THE B2 AND C2 “HOLDOVER” GRIEVANCES

The typical grievance selected for the B2 and C2 classifications is the same one which applied to the B1 and Cl classifications, namely, a complaint that salaried personnel were doing bargaining unit work. Thus, all that we have said concerning the arbitrability of such grievances which arose during the 1963-66 contract applies a fortiori to those grievances which arose during the 1960-63 contract, since the language of the earlier contract was more favorable to arbitrability than that contained in the later contract.

The “holdover” -grievances (ones which arose during the 1960-63 contract period) were undisposed of when that contract terminated and were still pending at steps 2, 3 or 4 of the grievance procedure on December 4, 1966. Our first question as to these grievances is: Were they still viable grievances for purposes of arbitration on that date, or had they ceased to be viable because of termination of the 1960-63 and the 1963-66 contracts?

We find no language in either contract which set any time limit upon the processing of such grievances either during or after the contract term. If we were to imply such a time limit from the fact that the contract itself had a termination date, such an implication would create insuperable difficulties in processing the last grievances through the grievance and arbitration machinery as the end of the contract approached. Obviously, as we shall see, the parties themselves did not so interpret the contract.

These grievances were ones which sought compensation to members of the bargaining unit for work allegedly done by salaried personnel in violation of Article XXV, paragraph 3:

3. Supervisors or salaried personnel will not perform work on any job within the Bargaining Unit except in cases of emergency, or when no qualified employee is available, or when instructing an employee.

In Lincoln Mills, the seminal arbitration case, the Supreme Court held that holdover grievances seeking money damages after the company had terminated operations and contracted to sell its mill properties were nonetheless “continuing controversies.” Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).

Bearing on this same issue is the language of the Court in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1963):

It is true that the Union has framed its issues to claim rights not only “now” — after the merger but during the terms of the agreement — but also after the agreement expired by its terms. Claimed rights during the term of the agreement, at least, are unquestionably within the arbitration clause; we do not understand Wiley to urge that the Union’s claims to all such rights have become moot by reason of the expiration of the agreement. As to claimed rights “after January 30, 1962,” it is reasonable to read the claims as based solely on the Union’s construction of the Interscience agreement in such a way that, had there been no merger, Interscience would have been required to discharge certain obligations notwithstanding the expiration of the agreement. We see no reason why parties could not if they so chose agree to the accrual of rights during the term of an agreement and their realization after the agreement had expired. Of course, the Union may not use arbitration to acquire new rights against Wiley any more than it could have used arbitration to negotiate a new contract with Interscience, had the existing contract expired and renewal negotiations broken down.
Whether or not the Union’s demands have merit will be determined by the arbitrator in light of the fully developed facts. It is sufficient for present purposes that the demands are not so plainly unreasonable that the subject matter of the dispute must be regarded as nonarbitrable because it can be seen in advance that no award to the Union could receive judicial sanction. See Warrior & Gulf, supra, at 582-583, 80 S.Ct. 1347, Id. at 554-555, 84 S.Ct. at 917. (Footnote omitted.)

We conclude, as obviously the parties did by their continued processing of the grievances, that the B2 and C2 grievances were viable as of December 4, 1966, when the Memorandum of Settlement was signed.

For the same reasons that the District Judge held the B1 and Cl grievances arbitrable (with our full affirmance earlier in this opinion), we now hold that the B2 and C2 grievances were arbi-trable as of December 4,1966.

This leaves the remaining question as to whether the December 4, 1966, Memorandum of Settlement represented an agreement of the parties to terminate the B2 and C2 grievances.

There is a strong dispute of background facts and interpretation as to what paragraph 4 of the Memorandum of Settlement of December 4,1966, meant to the parties to the contract in relation to the 1960-63 grievances. The District Judge originally (and we believe correctly) held that paragraph 4 was susceptible of two logical constructions: that urged by the union, and that urged by the company. He thereupon held an evidentiary hearing and resolved some of the fact problems bearing on construction of the Memorandum of Settlement.

We believe that it is clear and essentially undisputed (and the District Judge so found) that the “grievance backlog” referred to in the first part of paragraph 4 did refer to a total of some 3,600 grievances, among which were “holdover” grievances from the 1960-63 contract period. We believe that it is also undisputed (and the District Judge so found) that 1960-63 grievances were discussed and some of them were settled in the negotiations following the Memorandum of Settlement between December 4, 1966 and April 3,1967.

It is, we think, clear that the references in the first part of paragraph 4 to “grievance backlog” and “active grievances at 2nd, 3rd and 4th steps on De-cember 4, 1966” included the 1960-63 “holdover” grievances. The question then arises as to what interpretation should be given to the later provisions of paragraph 4:

Such grievances as may remain unsettled after consideration by the Committee will be categorized by the Committee into one of the following categories :
A. Grievances which are (1) arbitra-ble as a matter of right under the terms of the 1963-1966 collective bargaining agreement and as to which either party will determine whether it desires to proceed to arbitration and
(2) arbitrable under the 1963-1966 agreement by mutual agreement.
B. Grievances which would constitute a contract violation but which are deemed to be non-arbitrable by the Company under the terms of the 1963-1966 Agreement. The Union will determine whether or' not they wish to strike or proceed in court on such grievances under the terms of Section 301 of the Taft Hartley Act.

C. Non-contractual grievances.

Should any of such grievances be issues upon which the Union elects to strike, it shall give ten days notice thereof to the Federal Mediation and Conciliation Service. The Company should be simultaneously notified. The grievance backlog program shall be conducted during the period January 3, 1967 through April 3, 1967, at the end of which period the Special Grievance Committee will be dissolved, and all matters connected with the issue of backlog of grievances shall be deemed settled for all purposes, excepting only such arbitration proceedings initiated or court actions which may have been filed, or any non-contractual grievances in mediation, or where notice of intent to strike has been given.

The company’s interpretation of the language “under the terms of the 1963-66 collective bargaining agreement” is that it was designed to exclude the 1960-63 grievances.

The union’s position is that the paragraph 4 language just quoted above was employed to describe the standard by which the arbitrator would determine arbitrability.

We think the District Judge erred in undertaking to resolve this conflict. We certainly cannot say “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Thus under the prescription given us by the Supreme Court in United Steelworkers v. Warrior & Gulf Navigation Co., supra at 582, 80 S.Ct. 1347, these “holdover” grievances must be referred to arbitration in lieu of resolution in the federal court. As to this issue the District Court is reversed.

The judgment of the District Court is affirmed in part and reversed in part, and remanded for further proceedings consistent with this opinion.

      . This same ruling would be applicable to the grievances of the 01 class but for the fact that the company chose not to appeal the District Judge’s order to arbitrate as to them.

      . We note that the District Judge failed to resolve a dispute of fact as to whether this very issue (the survival of the 1960-63 grievances) was (as claimed by the company) discussed by the negotiators with the company’s interpretation of paragraph 4 being stated by its chief negotiator at the December 4, 1966, meeting or whether, as claimed in union testimony, no such issue was ever raised or talked about.