source: Caselaw Access Project

author: SETH, Circuit Judge.

license: Public Domain

text:
    T. Harry HUMPHREYS, Appellant, v. AMERADA HESS CORPORATION, Appellee.
    No. 73-1305.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 14, 1973.
    Decided Nov. 16, 1973.

      James G. Davidson, Tulsa, Okl., for appellant.
    Joseph W. Morris, Tulsa, Okl. (Thomas W. Lynch, John S. Miller, and Robert S. Rizley, Tulsa, Okl., with him on the brief), for appellee.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   SETH, Circuit Judge.

This is an action for damages arising from the refusal of defendant, Amerada Hess Corporation, to deliver stock under a stock option granted in 1968 to plaintiff, T. Harry Humphreys, who is now no longer employed by the corporation. From a jury verdict and judgment in favor of the corporation, Mr. Humphreys appeals.

Appellant Humphreys, an attorney, was a longtime employee of the former Amerada Petroleum Corporation. His tenure began in 1948 and prior to his termination he held the executive position of Manager of the Land Department. In 1968, pursuant to a plan adopted by Amerada to provide additional benefits for key employees and officers, Mr. Humphreys was offered and accepted an option to purchase 1,600 shares • of the corporation’s common stock at a price of $87.70 per share.

Amerada Petroleum Corporation and Hess Oil & Chemical Corporation merged in 1969 to form Amerada Hess Corporation which is the defendant. The merger did not affect the stock option other than to cause the substitution of Amerada Hess stock for the stock of Amerada. However, following the merger the emphasis of the corporation shifted away from Amerada’s former objectives of exploration and production of oil and gas. One of the casualties of this change was Amerada’s Exploration Department which included the Land Department of which Mr. Humphreys was the Manager. Accordingly he was advised in January 1970 that his position with Amerada Hess would terminate June 30, 1970. The details of the termination were formalized in a letter dated June 9, 1970, the first sentence of which read: “In accordance with our agreement, your employment by Amera-da Hess Corporation will terminate on June 30, 1970.” The corporation agreed to pay Humphreys $35,000.00, $10,000.00 on June 30, 1970, and the balance on January 15, 1971, in return for the release and discharge of “any and all claims, demands, causes of action, or liabilities of any kind . . . arising out of [his] employment or the termination of [his] employment.” This was termination pay and not compensation for services. Mr. Humphreys acknowledged his acceptance of these conditions by signing his acceptance on the letter.

As agreed, Mr. Humphreys officially left Amerada Hess on June 30, 1970, and entered the private practice of law. He received the termination payments as scheduled, and since leaving he has performed no services for nor received any other remuneration from the corporation or any of its subsidiaries. The present controversy developed when Mr. Hum-phreys attempted to exercise his stock option in full on April 14, 1971, and was advised by Amerada Hess that by the terms of the plan under which it was granted, and the terms of the option itself, it had expired three months after Mr. Humphreys’ termination of employment. The date when the option expired is thus the basic issue.

Appellant advances a number of constructions of the stock option and plan which might enable him to exercise the option when he sought to do so and to prevail in this action. Most of these are possible only by an unnatural construction of the relevant language, and we find them to be without merit. We deem it necessary to consider only the contentions relating to the possible effects of his continuing tenure as Assistant Secretary to various subsidiary corporations of Amerada Hess to extend his eligibility to exercise the option. The contract is governed by the laws of Oklahoma.

As a function of his duties as Manager of the Land Department, Mr. Hum-phreys was designated “Assistant Secretary” of a number of wholly owned subsidiary corporations. These corporations existed primarily to facilitate business transactions in foreign countries, and the offices carried no additional duties or salary. They were evidently simply titles which enabled Mr. Humphreys to execute on behalf of these corporations the various instruments for which the Land Department otherwise had responsibility. The appointments in such positions were made in June 1969 for the following year or until his successor was duly appointed and qualified. Although the record leaves the matter unresolved, it will be assumed for the sake of argument that Mr. Humphreys was never formally replaced in all of these offices and thus technically held some of them on April 14, 1971, when he attempted to exercise his option.

Appellant’s argument involves the following provisions of the option instrument:

“2. Exercise of Option. This option may be exercised by the Optionee in whole or in part, at any time or from time to time during the term of the option, provided, however, that this option may not be exercised (i) during the one year period commencing the date hereof, (ii) except as provided in paragraphs 3 and 4, at any time unless the Optionee is then an employee of the Corporation or of a Subsidiary, .
“4. ■ Termination of Employment. In the event of the termination of the employment of the Optionee, other than by reason of death, he may . exercise this option at any time within three months after such termination but not after five years from the date of granting hereof,

In addition he cites the following paragraph of the stock option plan:

“3. Eligibility. Options may be granted only to key employees (which term as used herein includes officers) of the Corporation and of its present and future subsidiary corporations.

Relying on these provisions, Mr. Hum-phreys argues that because he was nominally Assistant Secretary of various subsidiary corporations at the time he attempted to exercise the option, he was an “employee” of the corporation as the term was defined in the plan and hence eligible to exercise the option. He then challenges the definition of the term “employment” with which the trial judge instructed the jury, asserting that it did not encompass the full breadth of the term as used in the option.

Traditional rules of contract interpretation accord primary significance to the mutual intent of the parties, as it existed at the time the contract was formed. Where the contract is in writing and the language is clear and unambiguous, such intent must be determined from the words used. Oklahoma has expressly recognized these principles in its statutes and the trial court so ruled. Okla.Stat.Ann. tit. 15, §§ 152-154 (1966). Our reading of the stock option plan adopted by Amerada and the option granted to appellant Humphreys convinces us that nominal officers of either the parent or subsidiary corporations were never intended to be included, nor was the term “employment” ever intended to include tenure in such nominal offices. The plan is captioned “Incentive Stock Option Plan for Key Employees of Amerada Petroleum Corporation and Its Subsidiaries.” The record indicates that while Mr. Humphreys may formally have held the title of Assistant Secretary of various subsidiary corporations, he performed no official services or functions for any of these corporations following his departure from Amerada Hess on June 30, 1970. Such titles were simply expedients by which he could accomplish his former duties as Manager of the Land Department. In no sense could Mr. Humphreys have been considered a key employee or officer after the June 30, 1970, termination.

The appellant as one of his principal points urges that the trial court improperly instructed the jury as to the meaning of “employment” or “employee” generally, and as used in the stock option agreement. The instruction given was a definition which stated: “An employee is one who is under the control of, performs services for and is paid by an employer for those services.” The appellant urges that the instruction was not proper because he was in an executive capacity and had “. never been under the control of Amerada, insofar as the details of work performed.” We find no merit in this position as any person in the position of Mr. Humphreys was under the direction of Mr. Hammond, the head of the Exploration Department, and of other officers of the Corporation. He was an “employee” of the company. The right to control was present, and this is sufficient. Phoenix Savings & Loan, Inc. v. Aetna Casualty & Surety Co., 427 F.2d 862 (4th Cir.). By his acceptance of the letter of June 9, 1970, from Mr. Hammond, who was the next in authority above him, his “employment” was expressly terminated on a stated date. He received no compensation for services rendered after the termination date. Thus the instruction was in accordance with the general use of the term, and in accordance with the usage in exhibits.

We also hold that the instruction complained of was in accordance with the stock option. It was there combined with the term “officers.” As quoted above, paragraph 3 of the option as to eligibility states that they “ . may be granted only to key employees (which term as used herein includes officers) of the Corporation . . . .” It is apparent from the record that the options were for key employees. This was the main purpose and aim. The parenthetical reference to “officers” was to clarify the scope of the fundamental eligibility term. Being a key employee was the basic consideration. The trial court conveyed "to the jury this fundamental requirement when it instructed that the mere fact a person was an officer, without more, did not necessarily mean that he was an employee. This instruction was directed to appellant’s contention that even if he was but a nominal officer of a subsidiary, he was eligible to exercise the option. The instruction was proper under the proof submitted. See 2 Fletcher Cyc. Corps. § 266. The issue of employment was properly submitted to the jury under this and the other challenged instructions.

Mr. Humphreys also argues that the 1969 merger and consequent termination of the Land Department were extraordinary and unforeseen circumstances not provided for in the option. As such he would have us apply the rationale of Langer v. Iowa Beef Packers, Inc., 420 F.2d 365 (8th Cir.), to hold that the option remained in force despite the termination. We have carefully studied Langer and its companion case in the Iowa Supreme Court, Hilgenberg v. Iowa Beef Packers, Inc., 175 N.W.2d 353 (Ia.), and conclude that neither case applies to the instant facts. The terms of Mr. Humphreys’ option adequately anticipated and provided for the possibility of the termination of his employment without cause. He received notice of his prospective termination some six months before it became effective, and the option provided an additional three months following termination in which it could be exercised. He therefore had ample time in which to make his election, had he wished to do so.

The judgment is affirmed.


author: SWYGERT, Chief Judge. STEVENS, Circuit Judge

text:
    Mary Jeanne ROSE, Plaintiff-Appellant, v. BRIDGEPORT BRASS COMPANY et al., Defendants-Appellees.
    No. 72-1196.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 28, 1973.
    Decided Oct. 26, 1973.
    Norman P. Metzger, Ronald Elberger, Indianapolis, Ind., for plaintiff-appellant.

      Michael R. Maine, Charles L. Whistler, Keith C. Reese, Indianapolis, Ind., Carl Frankel, Pittsburgh, Pa., Michael H. Gottesman, Washington, D. C., for defendants-appellees.
    Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
   SWYGERT, Chief Judge.

Mary Jeanne Rose filed in the district court a complaint against Bridgeport Brass Company, the United Steel Workers of America, and Local 4266 of the same union. Citing provisions of Title VII of the Civil Rights Act of 1964, and of a collective bargaining agreement entered into by the Company and the Local, Rose sought damages for and in-junctive relief from sex discrimination allegedly practiced to her detriment by the Company. An additional claim was that the defendant labor organizations had not, as to her, fulfilled their mutual duty of fair representation. After the defendants had filed motions to dismiss, and after the district judge had elected under Rule 12(b) of the Federal Rules of Civil Procedure to treat these as summary judgment motions, summary judgment was entered against Rose on all facets of her complaint. The propriety of this summary judgment is what Rose questions on appeal.

I

In her complaint, Rose sets out the following facts: On or about October 15, 1969, Rose held the job classification of blanking press operator within Department 359 of the company. On that date, due to illness and an order from her doctor, she was granted an authorized leave of absence from her employment. Over a year later, on October 28, 1970, Rose sought to return to work, having obtained on that date a work release from the Company doctor for light duty involving the physical lifting of no more than forty pounds. The Company informed her that no jobs were available anywhere in the plant. Two days later, the Company laid off some forty-seven employees of Department 359 on the basis of their junior plantwide seniority. More senior employees from other departments were awarded the jobs thereby vacated. At least two of the vacancies in Department 359 were given to employees of the male sex despite the fact that they were lower on the plant-wide seniority ladder than Rose. She made no attempt to secure these positions, having been told by the Director of Industrial Relations, Robert Stultz, that the Company viewed her to be an “inactive employee” without a right to the open jobs.

The complaint goes on to state that the award to less senior men of jobs created by the October 30 layoff was sexual discrimination in violation of law and contract. Rose complains, too, that she would have been permitted to return to her job as a blanking press operator on October 28, had not the Company, sometime during the interim of her sick leave, redefined the job classification of blanking press operator to include what had formerly been the tasks of both a blanking press operator and a blanking press helper. The new job required a worker capable of lifting eighty pounds, far more than Rose was allowed to lift by the terms of her work release. The reclassification, according to Rose, was undertaken by the Company “willfully and intentionally to make it physically impossible for her and other members of the female sex to perform the tasks required under the new job classification,” again, a violation of contract and statute by the Company. In support of the claim, the complaint reveals that Department 359 had in 1969 approximately thirty female employees out of an approximate total workforce of seventy-five; of these women, at least twenty-three had been blanking press operators. In October of 1970, by contrast, the Department employed twelve women out of a contingent of forty, two of whom were blanking press operators. Finally, Rose complains of the failure of the Company under the collective bargaining contract to allow her on October 28 to displace the least senior employee in the plant from some job other than blanking press operator.

The complaints made about the Union and the Local are these: Rose filed grievances through the Local according to procedures established under Article 19 of the collective bargaining agreement, which set up a five-step sequence for the processing of grievances. The third step was reached on November 17, and the fourth on December 16, two days after Rose had filed a complaint against the Company, the Union and the Local with the Equal Employment Opportunity Commission which alleged, in part, that Rose had not “been fairly rep-ersented [sic] in good faith by the Union.” At the conclusion of unsuccessful discussions at the fourth stage of the grievance machinery, a representative of the Union stated that he would not take the grievance to the fifth step — namely binding arbitration — because he did not personally believe that Rose had been the victim of discrimination by the Company. When, on January 5, 1971, Rose suggested to the president of the Local that the Union was not behind her, he replied: “That’s right!”

Rose, on January 13, 1971, went on to file an affidavit with the National Labor Relations Board, accusing the Company and the labor organizations of sex discrimination in violation of section 8 of the National Labor Relations Act. Rose also complained to the Indiana Civil Rights Commission on February 3, 1971. Neither plea resulted in any agency action, however; the Regional Director of the NLRB felt that evidence of discrimination was not sufficient to justify his issuance of a complaint, and the Indiana agency declined jurisdiction. Rose subsequently was informed on March 24, 1971 that an arbitration of her grievance was to take place on April 2, 1971. At that proceeding, the representatives of the labor organizations did not raise the issue of sex discrimination though, Rose states, “that was the basis of her grievance filed on November 2, 1970.” The complaint concludes that these events show that the. Union and the Local had “not used their best offices and efforts to resolve plaintiff’s grievance based on sex discrimination contrary to Article 19 and Article 3, Section 1 of the collective bargaining agreement” and 42 U.S.C. § 2000e-2(c).

In response to the complaint, the Company filed a motion to dismiss for lack of jurisdiction of the subject matter because, in part, Rose had elected and been denied relief through arbitration before filing her complaint. Attached to the motion was an affidavit executed by Robert Stultz, which included as an exhibit a written decision of the arbitrator who heard and rejected the contractual grievance of Rose which the Union and the Local had finally taken to arbitration. According to Stultz, Department 359 had been closed down in January 1970; its personnel were either reassigned to jobs in other departments or were placed on layoff status. Those employees on layoff were recalled to work in other departments strictly on the basis of their plantwide, not departmental, seniority. Department 359 was reopened on a limited basis in May 1970, with a complement of sixteen employees chosen on the basis of their plantwide seniority. When Rose applied for work as a blanking press operator on October 28, 1970, she, according to Stultz, was denied the position (1) because she was not physically qualified for the job, and (2) because her plantwide seniority did not entitle her thereto. Rose was again denied a job on October 30 — after a general layoff at the plant which required a reassignment of jobs to the most senior employees- — because the company felt that an employee on leave of absence, like Rose, was not contractually entitled to receive a reassigned job following a layoff.

The arbitration decision attached to the Stultz affidavit reveals that the arbitrator was fully in agreement with the position of the Company as to the events of October 30. With respect to Rose’s earlier attempt to regain her job as a press operator, the arbitrator found:

In Section 3 of Article 18 the only specific reemployment right of returnees from sick leave within one year is to be restored to the jobs “they occupied immediately prior to their absence ... if appropriate and they are otherwise qualified.” In the instant ease this contractual option was unavailable (1) because the job had been shutdown on January 16, 1970, and (2) Mrs. Rose was no longer qualified, to perform the work because of the weight-lifting restriction.

The arbitrator likewise found that Rose was not entitled to some other job on October 28:

Since the specific contract provision is inapplicable, we must turn next to the past practice of the parties. The parties have developed a practice based in part at least upon the language of the last sentence of the first paragraph of Section 3 of Article 18. It was agreed at the hearing that if the returnee from sick leave is unable to return to his or her former job, he or she is permitted to bid upon a posted job or to take an open job which in either event he or she is qualified to perform. In the present case no job was posted when Mrs. Rose sought to return to work on October 23, 1970. Neither was there an open job on that date. Accordingly, on that date her status continued as an employee on sick leave.

The Company relied in large part upon the contractual interpretations of the arbitrator in its motion to dismiss. Citing United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), and the rest of the Steelworkers trilogy, it argued that the arbitrator’s findings were binding upon Rose, and that, without a contractual right to the jobs she sought, Rose could not have been discriminated against.

The Union and the Local, too, filed a motion to dismiss. They apparently adopted the affidavits of the Company, for their motion, sans affidavits, mirrors that of the Company. The only contention made therein which has the slightest pertinence to Rose’s charge of inadequate representation by reason of sex discrimination was that the same charge had been made and pursued by Rose to a decision against her before the general counsel of the NLRB.

On November 12, 1971, approximately five months after Rose filed her complaint, the district judge ruled that the pending motions to dismiss were, in effect, motions for summary judgment, and ordered the parties to submit further evidence in support of their motions. Rose filed a cross-motion for summary judgment, supported by an affidavit, on December 13, 1971.

On January 6, 1972, the district court denied the cross-motion and entered a summary judgment for all defendants, evidently on the ground that arbitration had disposed of Rose’s claim in its entirety. This appeal followed.

II

It is apparent on the face of the summary judgment entry that the district judge may have misconceived his function.

Its concluding passages state:

The plaintiff has not maintained the burden of proof of all of the essential elements of the complaint and the alleged facts thereof by a preponderance of the evidence.
* * #
The plaintiff has failed to prove that the defendants discriminated against the plaintiff because of her sex in the Labor Agreement in issue or in the administering of such contract.

Rose, however, did not carry a burden of proof on the motions of the defendants for summary judgment. In ruling on a motion for summary judgment, a district court is charged by Rule 56 of the Federal Rules of Civil Procedure with determining whether or not the “pleadings, . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Our cases have uniformly placed upon the mov-ant for summary judgment the burden of establishing the absence of a genuine issue of material fact. Carter v. Williams, 361 F.2d 189, 193 (7th Cir. 1966); Motoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 576 (7th Cir. 1961). The burden is not lightly discharged.

“On a motion for a summary judgment the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, all doubts are resolved against him, and his supporting affidavits and depositions, if any, are carefully scrutinized by the court.” Albert Dickinson Co. v. Mellos Peanut Co., 179 F.2d 265, 268 (7th Cir. 1950), citing Walling v. Fairmont Creamery Co., 139 F.2d 318, 322 (8th Cir. 1943) (emphasis added). With these principles in mind, we turn to examine the pleadings and affidavits upon which summary judgment was granted below.

We read Rose’s complaint to state four claims, three against the Company and one against the Union and the Local. Rose accuses the Company of violating her seniority rights on October 28 by not allowing her to displace the least senior employee in the plant, of discriminating against her as a woman on October 28 by refusing to reinstate her to her former job as a press operator by reason of a weight restriction on that job which was instituted for a discriminatory purpose, and of violating her seniority rights on October 30 by refusing to give her a job opened up by a plantwide layoff. The first claim is based, apparently, on Rose’s rights under the collective bargaining agreement; the second and third make reference to both the contract and 42 U.S.C. §§ 2000e-2(a) (1) and (2). The claim against the labor organizations is that they failed to employ their best efforts to aid her in redressing these actions of the Company, thereby violating their contract with the Company and 42 U.S. C. §§ 2000e-2(c)(1) and (2).

The Company would have us uphold summary judgment as to Rose’s claim of a discriminatory job reclassification on the ground that an affidavit executed by Stultz and presented in opposition to Rose’s cross-motion for summary judgment makes clear beyond contradiction that the sole reason of the Company for having realigned the duties of a blanking press operator was the promotion of economy. According to Stultz, the Company was having difficulty in early 1970 in bidding competitively on government contracts for brass cups, the product of Department 359. The job of a blanking press operator was reclassified to reduce the number of employees necessary to run the operation by twenty-five to thirty percent, thus making operation more economical.

Is it true, as the Company argues, that Rose “failed to make an issue on a single one of these facts”? App. Br. at 16. We think not. Her complaint and her affidavit in support of her cross-motion for summary judgment reveal that twenty of thirty-six positions of press operator in Department 359 were held by women when, on October 15, 1969, Rose began her authorized leave of absence. At that time the Department employed 75 workers. When Rose sought reinstatement in October, 1970 .the Department, to her knowledge, had a complement of forty employees, twelve of whom were females. Of these, however, only two held jobs as press operators. Assuming that the total number of press operator positions remained proportionately the same as it had been a year before, it is apparent that the ratio of female press operators to the total number thereof dropped markedly from .555 to .104 during the course of the year. This surely raises the possibility that the job reclassification had a discriminatory effect.

Furthermore, Rose called into question the economic motivations of the Company in her affidavit:

Prior to the job reclassification and reopening of Department 359, one (1) Blanking Press Helper was employed to assist every two (2) Blanking Press Operators. The Helper’s job included lifting and dumping tubs full of “cups” or bullet casings which weigh approximately 80 pounds and putting the metal with the press.
After the job reclassification, the helpers were reduced in number to one (1) for every four (4) presses and the press operators undertook the function previously carried out by the helpers of dumping the tubs. To do so required the operator to leave his post and walk around the machine to check the tub and, when necessary, to empty it.
When I began work as a press operator, I was told never to leave my position in front of the press while it was operating because a defect in the metal could cause a breaking of the machine. Operators, who are now required-to leave the machine regularly, either leave it operating and thus risk a breakdown or turn it off and thus temporarily halt production.
I cannot say of my personal knowledge whether or not this arrangement has contributed to greater cost economy and increased efficiency of operation. Information as to increased efficiency is within the control of the Bridgeport Brass Co. (emphasis supplied).

Given these allegations — which at least impugn the justification of the Company —we would be loath to hold that no doubt exists as to whether the job reclassification was motivated purely by economic considerations. The summary judgment on this portion of the complaint is accordingly reversed.

The other two claims of Rose against the Company bear no uncertainty as to any material fact. Both were submitted to an arbitrator and decided adversely to Rose. On October 28, the arbitrator later found, Rose had no contractual right to displace an active employee of the company. The arbitrator also found that Rose, on October 30, continued in the status of an employee on sick leave despite the layoffs that occurred on that date, and that the jobs opened by the layoffs were not open to her. The Company insists that these determinations are binding on Rose and that she cannot now reassert what are essentially the same claims by casting them as violations of her civil rights prohibited by Title VII of the Civil Rights Act of 1964. Rose argues in opposition that her current claims of sex discrimination are different from the grievances she put before the arbitrator. Alternatively, she appears to argue by citation of Hutchings v. United States Industries, Inc., 428 F.2d 303 (5th Cir. 1970), that the arbitral award should not preclude her Title VII suit even if the issues she now raises are identical to the ones which the arbitrator ruled upon. . We reject her views.

Rose has made no Title VII claim relating to the general failure of the Company to reinstate her on October 28. After setting forth the discriminatory reclassification of her former job by the Company and her resultant failure to regain that position, the complaint of Rose states:

She was not allowed by the defendant Bridgeport Brass Co., however, to exercise . . . her seniority rights to displace the last senior employee in the plant as . required under the Article 18, Section 3 of the collective bargaining agreement.

We are cited no authority which supports the view that Rose may in a federal court relitigate contractual claims which she made before and had decided by an arbitrator; the trial judge was right to grant the‘Company a summary judgment on this aspect of the case. Rose, however, did complain that the inaction of the Company on October 30 was a Title VII violation, and we must reach the merits of her legal argument on that claim.

The factual basis for the claim is exactly the same as the foundation of the analogous contractual claim made to the arbitrator, namely, that male employees with less seniority than her were given jobs on October 30. The arbitrator ruled that Rose, whether more senior or not, had no right to the jobs. It is possible to accept this proposition and assert, nonetheless, that Rose may have been subject to discrimination by the Company? We think not. The Company would have violated the collective bargaining agreement had it given Rose a job on October 30, and it would have done so at the expense of another employee. If what the Company did was required by the contract, and if the contract itself is not discriminatory, the Company could not have discriminated against Rose no matter what its subjective motivation.

As is thus apparent, Rose must be found to have a right to challenge the contractual ruling of the arbitrator if she is to succeed on her claim of discrimination. This she cannot do. It has been settled beyond peradventure that a federal court may not upset the findings of a labor arbitrator insofar as they involve interpretations of a collective bargaining agreement. To allow a contractual claimant who has lost at arbitration an opportunity to relabel his claims to state civil rights violations and secure their readjudication this time in a federal court, is to erect a deterrent to arbitration by employers in clear contravention of national labor policy. The cases which Rose cites do not persuade us to take an opposite view. Rios v. Reynolds Metals Co., 467 F.2d 54 (5th Cir. 1972), is fully in agreement with our position, for the Fifth Circuit there recognized a limited power in a district court to defer to an arbitral award where, among other things, “the contractual right coincides with rights under Title VII . . . , [and] the factual

issues before [the district court] are identical to those decided by the arbitrator.” 467 F.2d at 58. See also Nuest v. Westinghouse Air Brake Co., 313 F. Supp. 1228, 1234 (S.D.Ill.1970); Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1223-28 (1971); cf. Page v. Curtiss-Wright Corp., 332 F.Supp. 1060, 1067-1068 (D.N.J.1971). Nor is Hutchings v. United States Industries, Inc., 428 F.2d 303 (5th Cir. 1970), an authority to the contrary. As the Rios court recognized, 467 F.2d at 55, Hutchings was a case where “the rights and remedies at issue in the grievance or arbitration proceeding and the rights and remedies at issue in the Title VII case differ [ed].” 428 F.2d at 314 n. 10 Finally, we conclude that our decision in Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969), is inapposite, for the pertinent holding of that case was that an employee need not forego an arbitration of his contractual grievances to obtain redress in a federal court for violations of Title VII based on the same acts which formed or would form the factual predicate for the contractual grievances. We noted in Bowe that different remedies were available to a federal court and to an arbitrator.

While we recognize that there is a burden placed on the defendant who must defend in two different fora, we also note that there may be crucial differences between the two processes and the remedy afforded by each. . [A] s with unfair labor practice cases, in a case involving an alleged breach of a contract brought before an arbitrator, the arbitrator may consider himself bound to apply the contract and not give the types of remedy which are available under the statute. Conversely, an action in court may not be able to delve into all the ramifications of the contract nor afford some types of relief available through arbitration, e.g., back pay prior to the date of the statute. 416 F.2d at 715.

We do not deviate from Bowe by the decision we have made today. Had Rose won at arbitration, we would not have held her barred from bringing the instant suit, provided, of course, that relief beyond that awarded by the arbitrator was sought.

The summary judgment on the second and third claims or Rose against the Company is accordingly affirmed.

Ill

The crux of the claim which Rose makes against the Union and the Local is not that they failed to press her claims of sex discrimination, but that they were reticent to press her contractual claims and might not have taken them to arbitration had she not filed discrimination claims with the EEOC and the NLRB. Since the claim is essentially one of discriminatory reticence —being based on either or both 42 U.S. C. § 2000e-2(c) and the doctrine of fair representation espoused in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L. Ed.2d 842 (1967) — proof of it would entail a showing that the Union and the Local would have moved more quickly to arbitration had Rose been a man. On a review of the record, we conclude that Rose failed to adduce facts on this essential point.

After Rose had filed her complaint against the Union and the Local with the NLRB, that agency conducted an investigation. It concluded:

The charge that the Union has dis-criminately failed to process the Charging Parties’ grievance is completely rebutted by the fact that it has processed and is currently processing their only recently filed grievance to arbitration. To the extent that charging parties claim the Union is acting in bad faith, they have not adduced a scintilla of evidence in support thereof. Exhibit K to complaint.

Rose made no response by affidavit to this finding, and her complaint holds not even an assertion that a man would have received better treatment than she by the defendant labor organizations. As to the Union and the Local, the summary judgment is accordingly affirmed.

The judgment is affirmed in part and reversed in part.

STEVENS, Circuit Judge

(dissenting in part).

Although it is .unfortunate that the district court incorrectly characterized the deficiencies in plaintiff’s case as a failure to maintain the burden of proof by a preponderance of the evidence — a characterization plainly inappropriate for disposition of a summary judgment motion — I am nevertheless persuaded that his ruling was correct. I join in Judge Swygert’s analysis of the contract claims and the claims against the Union. However, with respect to the statutory claim of sex discrimination by the company, I do not agree that any issue of fact requiring a trial has been raised.

Three different factors have combined to produce the effect which plaintiff asserts is illegal. First, the task of lifting brass cups produced by the blanking press requires sufficient strength to handle a weight of 80 pounds. Plaintiff is not physically qualified to do that work. Thus, this is not a situation comparable to the rule in Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir. 1969), which excluded all females from a particular job category because some could not do the work. A rule which limits eligibility for a job to persons physically qualified to perform the work is not discriminatory even if fewer members of one sex have the requisite physical characteristics.

Second, at a time when plaintiff was absent on sick leave, the defendant terminated the operation of Department 359. The uncontradicted evidence indicates that the reason for this action was economic; the work being done in that department was then unprofitable. Plaintiff has adduced no evidence tending to prove that the closing was motivated by a discriminatory purpose.

Third, while plaintiff was still on leave, the department was reactivated with a smaller work force. Instead of using one helper for every two press operators, the new arrangement required only one helper for four presses because the operator was assigned the responsibility for removing the. heavy brass cups. In consequence, the number of employees in the department was significantly reduced. As a result of the reassignment of a portion of the helper’s duties to the operators, the operator was required either to stop the machine occasionally or to leave the normal operating position briefly to handle the heavy brass cups. The change therefore involved some slight increase in the risk of an operating breakdown, but it is undisputed that the change effected significant savings in the cost of operating the department'.

The three factors discussed so far include no evidence that any of the actions taken by the company were motivated by an intent to discriminate against the plaintiff or against female employees. Support for the discrimination charge is predicated entirely on the fact that the operating changes resulted in a change in the relative number of females employed in the department and employed as blanking press operators.

Unquestionably, statistical or demographic evidence often provides persuasive and reliable evidence of illegal discrimination. It may raise a reasonable inference of subjective bias, or it may prove that a non-job related requirement has a discriminatory effect which is illegal even if it was unintended. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. In this ease, however, neither inference is reasonable nor, indeed, in my opinion, permissible. There is no dispute about the fact that the operating changes did produce economies, the fact that physical strength is related to job performance, or the fact that there are relatively fewer females than males with the physical strength required for this particular job. I am therefore not persuaded that this record contains any evidence supporting an acceptable inference of sex discrimination.

In sum, I agree that a non-random distribution of jobs between males and females may raise an inference of discrimination. But if the record contains an uneontradicted credible explanation of business factors which naturally produce such a non-random distribution, I do not see how those predictable consequences can properly be accepted as evidence of a secret discriminatory motive. For if this statistical evidence is sufficient, then logically any ratio other than 50-50 may require a jury trial of a claim alleged by a member of the disfavored sex.

I therefore respectfully dissent insofar as the summary judgment entered by the district court is reversed.

      . 42 U.S.C. § 2000e-2, subsections (a) and (c).

      . This is brought out in a later affidavit. The complaint itself states that the Department employed ten woman of forty employees, none of whom were press operators.

      . Tlie first of these reasons does not correspond to the position taken by Stultz that Rose was refused the job of blanking press operator because of her lack of plantwide seniority. The affidavit of Stultz, in fact, contradicts the arbitrator’s justification, for Stultz makes it clear that the job of blanking press operator was in operative existence when Rose applied for it on October 28.

      . United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L.Ed.2d 1409 (1960) ; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

      . The Company does not argue that Rose would not have been entitled to the job of blanking press operator on October 28 even if it had not reclassified the job. Nor could it, at least on its motion for summary judgment, for Stultz and tbe arbitrator do not agree as to what the other reason might be. See note 3, supra, and 6 J. Moore, Federal Practice 2170 n. 28 (1971).

      . An assumption which favors the Company to some extent, for the complement of blanking press helpers had been reduced in number by the job reclassification.

      . 20 -T- 36.

      . 2 A- (36(40 — 75)).

      . Rose also notes that thirty out of the 1969 complement of Department 359 were women, while only twelve were employed therein in 1970, a ten percent drop from forty to thirty percent. This is a much less significant shift in female complement than that revealed by concentrating solely on the press operator position, but we do not find it as relevant as the latter figure, for it may be that the other positions held by women were less fulfilling in wages than the press operator position or were less desirable in some other fashion cognizable under 42 U.S.C. §§ 2000e-2(a)(1) and (2).

      . Rios also required as a condition to deferral that the district court find that “the arbitration proceeding was fair and regular and free of procedural infirmities.” 467 F. 2d at 58. Rose argues that this condition was not met by the arbitration at issue, since “the Union did not present all of Rose’s case to the arbitrator.” Accepting, arguendo, the Rios requirement, we cannot agree that it went unfulfilled. The crucial passage of Rose’s complaint is this: “During the arbitration hearing, no representatives of the defendant labor organizations raised the issue of sex discrimination although that was the basis of her grievance filed on November 2, 1971.”
      Her own exhibits, however, belie this statement. The grievance form which Rose submitted on November 2, 1970, filed as Exhibit E to her complaint, made no mention of sex discrimination in connection with her deprivation of contractual seniority rights. The only claim of sex discrimination was this:
      Nature and contents of contract is discriminatory in its referral to men, beginning with Art. 2, 3rd paragraph, and continuing through Art. 21, Sec. 2.
      All of her other complaints fall under the heading “Contract violation.” If, moreover, she had complained to the labor organizations that the contractual violations of the Company constituted sex discrimination, those organizations could not have erred by pressing, first, the issue of whether the. Company had violated the contract, for a finding for the Company on that point would remove the foundation for the discrimination claim. The defendant labor organizations, moreover, did not err in failing to argue that the Company’s rfeading of the contract, if correct, was nonetheless sexually discriminatory as to Rose, for Rose clearly did not complain to them that the reinstatement provisions of the contract were discriminatory on their face or as applied in violation of Article 3, Section 1 of the contract.

      . In' Hutchings, an employee and his union had taken to arbitration a grievance that the employer had, in violation of contract, abolished a position to which the employee would otherwise have been entitled. The arbitrator determined that the employer had justifiably eliminated the job in view of a “sharp reduction of work load and work force” in the department in which the employee worked. Hutchings v. U. S. Industries, Inc., 309 F.Supp. 691, 692 (E.D.Tex. 1969). A contractual claim of racial discrimination was not pressed before the arbitrator, and his decision indicates that considerations of racial animus did not enter into his assessment of the employer’s motivation.
      In Hutchings, then, the arbitrator’s finding that the employer was not required by its labor contract to keep the disputed job open did not necessitate a conclusion that the employee could not have been discriminated against. If the employer would have kept the job open for a white employee, a Title VII violation existed without reference to the contract. Here, however, the Company was required by its contract to give jobs created by layoff to employees other than Rose, and — absent a discriminatory contract — the Company could not have discriminated by conforming to its agreement with Rose’s representatives.

        Hutchings also involved a second incident of employee-management conflict, one which had been resolved without going to arbitration. Not only was it doubtful that a claim of racial discrimination had been resolved in the grievance process, there was, further, no possibility of deferral to an arbitrator’s decision, a situation which fails to call into play the national labor policy expressed in the Steelworkers trilogy. See Parmer v. National Cash Register Co., 346 F.Supp. 1043, 1049 n. 5 (S.D.Ohio 1972).

      . A conclusion which disposes, too, of Rose’s reliance on Parmer v. National Cash Register Co., 346 F.Supp. 1043 (S.D.Ohio 1972), a case which relied on Bowe for the propositions that an employee need not elect one or the other of his dual remedies under Title VII and arbitration, and that the collective bargaining process need not be exhausted before a Title VII suit is brought.

      . No “crucial differences” exist in this case between the arbitral and district court processes. That the arbitrator found the facts correctly is undisputed, and the fact that he was not an Article III judge is not a difference we deem crucial.

      . We do not decide whether, in this event, the Company would be bound in the district court by the findings of the arbitrator.

      . See note 10, supra.

      . The portions of plaintiff’s affidavit which are read to “impugn the justification of the company” merely indicate that the management decision to effect a significant cost reduction involved a minimal increase in the risk of an operating breakdown. A management decision to accept that risk as the price of reducing costs does not constitute evidence of sex discrimination.

      . In this case the majority relies on plaintiff’s affidavit, as well as the numerical evidence, but as I have explained in note 1, supra, I find nothing in the affidavit supporting either an inference of sex discrimination or inference that the company’s explanation for the changes was contrived.


author: TRASK, Circuit Judge:

text:
    ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, v. Ellis ARMSTRONG, Commissioner, Bureau of Reclamation, et al., Defendants-Appellees. ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, and The Sierra Club, Plaintiff-Appellant, v. Ellis ARMSTRONG, Commissioner, Bureau of Reclamation, et al., Defendants-Appellees.
    Nos. 72-2997, 72-3170.
    United States Court of Appeals, Ninth Circuit.
    Nov. 9, 1973.

      John A. Edginton (argued), Graham & James, San Francisco, Cal., Michael W. Palmer (argued), Thomas J. Graff, the Environmental Defense Fund, Berkeley, Cal., Harry D. Page, Paul A. Dezurick, Graham & James, San Francisco, Cal., for plaintiffs-appellants.
    Edmund B. Clark, (argued), Dept. of Justice, Washington, D. C., Thomas J. Shepard, (argued), Robert C. Morrison, Neumiller, Beardslee, Siegert, Glahn, Shepard & Greene, Stockton, Cal., Kent Frizzell, Asst. Atty. Gen., Dept. óf Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., David E. Golay, Asst. U. S. Atty., San Francisco, Cal., Richard W. Dickenson, County Counsel, Michael N. Garrigan, Deputy County Counsel, Stockton, Cal., Douglas N. King, George R. Hyde, Dept. of Justice, Washington, D. C., Paul R. Haerle, Joseph A. Darrell, Thelen, Marrin Johnson & Bridges, P. H. McCarthy, Jr., McCarthy, Johnson & Miller, San Francisco, Cal., D. Steven Blake, Sacramento, Cal., for defendants-appellees:
    Before HASTIE, TRASK and CHOY, Circuit Judges.

       Honorable William H. Hastie, United States Circuit Judge for the Third Circuit, sitting by designation.

   TRASK, Circuit Judge:

This is another case challenging the adequacy of an Environmental Impact Statement (EIS) under the provisions of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (NEPA). The statement was filed because a public works project known as the New Melones Dam across the Stanis-laus River in California constituted a “major Federal action” which would significantly affect the quality of the human environment. The dam was originally authorized by Congress under the Flood Control Act of 1944 and reauthorized under the Flood Control Act of 1962, 76 Stat. 1180, as a multi-purpose project with benefits of flood control, irrigation, fish and wildlife enhancement, power generation and water quality control. The diversion tunnel, a 25 million dollar project, had been substantially completed at the time this action was filed and was therefore not the subject of requested relief. The main construction contract had not been let and this action concerns that contract and the completion of the project. An injunction pending the resolution of this appeal has stayed further project action.

The principal plaintiff is Environmental Defense Fund, Inc. (EDF), joined by eleven rafting companies engaged in the business of conducting commercial raft trips on the white water reaches of the Stanislaus River, two individuals who allege that their raft and kayak trips will be injured by the proposed construction, and one individual who alleges his mining claim will be destroyed. Defendants are the Secretary of the Interior, the Commissioner of the Bureau of Reclamation, the Secretary of the Army and various officers of the Corps of Engineers.

The matter has been before the District Court on two occasions. On the first hearing the court determined that:

1. The plaintiffs’ request for a preliminary injunction should be denied.
2. A supplemental EIS should be submitted by the government discussing the uses of the water produced as the “conservation yield” of the project. This EIS was to be submitted to other concerned agencies and to the public inviting comment within 30 days after submission.
3. The final revised EIS should be submitted to the Council on Environmental Quality and to the court and thereafter a second hearing was to be held, with the court retaining jurisdiction of the matter pending final hearing. Environmental Defense Fund, Inc., et al. v. Ellis Armstrong, Commissioner, Bureau of Reclamation, et al., 352 F.Supp. 50 (N.D.Cal.1972).

A second EIS was promptly prepared entitled “Supplemental Data on Use of Conservation Yield,” and circulated as required, and the final revised EIS submitted to the Council on Environmental Quality (CEQ) and to the public. At the continued hearing before the District Court on March 9, 1973, both the EDF and the Sierra Club waived any objections to a failure to comply with the filing or circulation requirements set out in the CEQ guidelines, and the court proceeded to consider the question of the adequacy of the revised EIS for the New Melones Project.

The County of Calaveras, the Calaveras County Water District, San Joaquin County Flood Control and Water Conservation District, County of Stanislaus, County of Tuol-umne, City of Escalón, City of Riverbank, City of Modesto, City of Oakdale, City of Ripon, City of Stockton, Salida Sanitary District, Reclamation District 2075, San Joaquin River Water Users Company, Federal Land Bank Association of Modesto, Federal Land Bank Association of Stockton, Stanislaus River Flood Control Association, Del Rio Golf and Country Club, Gerald Barton, Mae Giovanetti, John Hertle, Manuel Macedo, Paul A. Philbin, Raymond Arroquy, Donald R. Fairchild, William Jiminez, Mountain Counties Water Resources Association, Associated General Contractors of California, Inc., California State Conference of Operating Engineers and State Building and Construction Trades Council of California.

Three objections were made to the adequacy of the EIS in its final form. The first was that the supplemental portion dealt only with the conservation yield. This argument was rejected summarily by the court upon the ground that the conservation yield was precisely that to which the trial court had directed the government to address its comments.

• [1, 2] Second, complaint was made that the final EIS did not assign priorities of need for the conservation yield, and did not discuss alternate sources of supply and the facts regarding the current water supply in the Central Valley Project of which this dam was alleged to be a part. On this latter issue, the trial court held that it was not the task of the EIS to examine all possible alternative sources of water supply but only those that are reasonable with regard to the project under examination. This was done. We agree with and affirm the judgment of the trial court that the EIS was in fact adequate. As to the assignment of priorities, the trial court pointed out that there was a time lag of at least eight years between the commencement of construction and the aceu-mulation of the conservation pool. It would be improvident to make a priority commitment now for needs which might be vastly changed when the water became available. The court’s conclusion, to retain jurisdiction throughout the project’s development, provides sufficient protection for all parties. The evidence of available water supply without New Melones, and thus the project’s need, was in no real conflict. There was a dispute as to the evaluation of that evidence. The court found, and we agree, that correctly interpreted the conservation yield of the project could be used now and would clearly be needed by the time the project becomes operational.

The third challenge to the final statement was for the reason that alternatives for the project were not sufficiently set forth. Yet in the original statement before supplementation, there was a discussion of alternative reservoir sites (original EIS at 73); alternative reservoir sizes at the New Melones site; alternatives to the planned operation such as releases downstream to enhance fisheries and water quality and to meet the demands of other nearby service areas; and alternatives to constructing the reservoir itself, such as channel and levee improvements, floodplain management and abandonment of the project. Again, prior to the initiation of the conservation function of the pool, the Bureau of Reclamation, charged with operation, proposes to prepare another supplementary statement covering the impact of the use of its water supply.

The District Court theréupon found that the Environmental Impact Statement as revised complied fully with the requirements of NEPA and denied relief to the plaintiffs.

Two questions are before us on this appeal. The first is the matter of appellate review of the decisions of the District Court upon the issues raised there. The second is the effect of a decision of the California State Water Resources Control Board (SWRCB), numbered 1422, which was issued shortly after this appeal was taken.

Each of the parties to this appeal appears to advocate that the standard for appellate review of a trial court decision on the adequacy of the EIS' is the “clearly erroneous” test under section 52(a) of the Federal Rules of Civil Procedure. An examination of the Act, and of the cases decided under it, does-not support such a conclusion. More often the courts look to the provisions of the Administrative Procedure Act, 5 U.S. C. § 706(2)(A), Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973); Silva v. Lynn, 482 F.2d 1282 (1st Cir. 1973). We do likewise here.

The EIS as revised has been reviewed on appeal and we agree with the judgment of the District Court as to its adequacy under NEPA requirements, as measured by 5 U.S.C. § 706(2) (A).

The final question is one which has developed pending the appeal. In the trial court the plaintiffs had contended that before proceeding with construction the government must obtain permits from the SWRCB. In 1960 the federal defendants had filed applications for permits to appropriate water from the Stanislaus River by direct diversion and by storage. The applications were made pursuant to section 1200 et seq. of the California Water Code and section 8 of the Federal Reclamation Act of 1902, 43 U.S.C. § 383. Between 1960 and 1972 the Bureau of Reclamation had sought delays in order to negotiate differences, but in 1972 the SWRCB forced the matter to hearing, which was the posture of the ease when this litigation was decided on March 16, 1973. See Environmental Defense Fund, Inc. v. Armstrong, 356 F.Supp. 131, 140 (N.D.Cal.1973); Environmental Defense Fund, Inc. v. Armstrong, 352 F.Supp. 50, 58 (N.D.Cal. 1972). On April 4, 1973, the SWRCB issued its Decision 1422, granting the requests sought by the Bureau of Reclamation in part and imposing conditions. It is not known at this time whether the Bureau has taken any further action with respect to the decision of the State Board.

This decision was promptly made known to both the responsible agency and to the CEQ for, under date of April 17, 1973, a letter was written by Russell E. Train, Chairman of the Council to Kenneth E. BeLieu, Under Secretary of the Department of the Army, calling attention to it. The suggestion of Chairman Train that another supplemental draft EIS be prepared and circulated calls for careful consideration. We turn then to Decision 1422 of the SWRCB for an answer to that question.

After describing the project, the decision notes the protests to the applications filed by the irrigation districts and public agencies pointing out that “most of the protestants now have no objection to the project.” Their principal concern, it states, is in the “manner in which the project will be operated.” The plaintiffs in this case were, of course, also protestants before the Board; their protests, as indicated, go beyond those of the public corporations and agencies.

The Board first considers the amount of water that should be released to satisfy requirements for achieving and maintaining water quality objectives (pp. 11-13). It concludes that the Board should reserve jurisdiction for the purpose of revising water release requirements for water quality objectives.

Use of the conservation yield for irrigation or other consumptive uses is next discussed (pp. 13-20), and the Bureau is criticized for failing now to present evidence of a specific plan to use the conservation yield for designated consumptive uses. The Board points out, however, that the record contains “substantial evidence that the full conservation yield of the New Melones Project, and more,” will eventually be needed in the counties of the Stanislaus River Basin. It then proceeds to balance the undefined needs for impoundment against the adverse consequences of impoundment including injury to white water boating, stream fishing and . other stream-related activities, and decides that permits should prohibit impoundment for additional consumptive purposes until further order of the Board. It further provides that permits for consumptive purposes outside the basin counties should be subordinate to beneficial uses within the counties. The restriction of use of the water to satisfy existing and anticipated intra-basin needs before export was already a part of the project authorization.

Releases for preservation and enhancement of fish and wildlife are next discussed (pp. 20-21) concluding with a decision that permits should require the release of up to 98,000 acre feet per an-num for maintenance of fish and wildlife with jurisdiction reserved to revise these releases “upon reviewing the results of further studies.”

Releases for consumptive uses to satisfy dry year criteria are mentioned but no specifics are stated.

Hydroelectric Power Development is the next item reviewed (pp. 21-24). In considering storage for power the Board’s opinion becomes obscure. It begins by saying that because there is considerable question as to the need for storage of water “in the proposed quantities for purposes other than the generation of power,” it will determine whether the project’s “power benefit alone” will justify storage in addition to that presently needed for other purposes. Measured by this yardstick it concludes that the adverse recreational effects on stream fishing, white water boating and wildlife weigh more heavily than the need for power and thus the requested storage may not be allowed in full. It acknowledges that this reduction in storage will reduce the annual electrical energy production and admits that the opportunity to contribute to the solution of present power supply problems should not be overlooked, but notes that the project .was not proposed as a means of alleviating the power shortage. It makes plain also that “as the demand for water for consumptive uses increases and storage for those uses is authorized, storage for power purposes will also be considered.” It notes that if the Bureau eventually substantiates the need for storage for consumptive use purposes out-of-basin large quantities of delivery power will be needed and the development of the full power potential of New Melones should be considered.

The summary of the Board is as follows: (in part)

“The public interest requires that the use of the Stanislaus River for whitewater boating, stream fishing and wildlife habitat be protected to the extent that water is not needed for other beneficial uses. Therefore, although there is a demonstrated need for the full yield of the project in the four basin counties at some time in the future, but for which no contracts have been negotiated, and in view of the adverse effect the proposed reservoir will have upon these recreational uses, impoundment of water to satisfy that need should not be permitted at this time. Instead, the Board should retain jurisdiction over the permits for the purpose of approving incremental appropriations for consumptive use up to the quantities covered by the applications when the need for the water is substantiated.
* * * * * *
“Beneficial use of project water can be made for the generation of power. However, preservation of the existing upstream reach of the river for recreation values conflicts with increased storage for power purposes. Therefore, storage for power generation should be approved, but limited to the amount authorized for other project purposes.”

The order approves the applications in part and provides that the requested permits issue subject to conditions and limitations stated. The conditions and limitations are with respect to the manner in which the project is to be operated. It imposes no restriction upon the size of the construction project or the ultimate capacity of the dam as planned by the Bureau. It reduces the quantity of water to be appropriated under Application 19303 from the 2,420,000 acre feet per annum by storage, as requested, to the quantity, not to exceed 1,420,000 acre feet per annum, which can beneficially be used for power purposes. It reduces the quantity of water to be appropriated under Application 19304 for irrigation, domestic, municipal, industrial, fish culture, recreation and water quality control purposes from the 2,-420,000 acre feet per annum by storage to a maximum of 1,420,000 acre feet per annum and states in this regard that “[u]ntil further order of the State Water Resources Control Board, the water shall be used only for preservation and enhancement of fish and wildlife, recreation and water control purposes.” Paragraph four of the order continues with reference to permits under applications 14858 and 19304 and authorizes use of water therein approved for consumptive uses in Stanislaus, Calaveras, Tuolumne and San Joaquin Counties and invites a petition to amend to include other areas where necessary.

Assuming that the order as outlined is final, is not modified in further proceedings and is binding upon the federal agency, Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), the federal agency has obtained permission to construct the project as planned but its operation is limited by the decision to a reduction of one-half of its proposed capacity for storage for power purposes. By such a reduction the recreational uses are preserved. Jurisdiction is retained to permit an increase in actual storage should a justifiable need be demonstrated.

The decision makers, Corps of Engineers and Bureau of Reclamation, are fully aware of the order, its effect and its implications. The Bureau of Reclamation was the applicant before the State Board in the proceeding which resulted in Decision 1422. The Chairman of the Council of Environmental Quality also has the decision. It does not affect the trial court’s decision with respect to the adequacy of the EIS upon the project as planned to be built and to operate. It does affect the operation of the project by protecting those who have objected on behalf of white water enthusiasts, stream fishermen and wildlife interests. It is subject to modification by its own terms upon change of conditions and recognizes that “there is a demonstrated need for the full yield of the project” at some time in the future. Therefore, the summary states that the Board “should retain jurisdiction over the permits for the purpose of approving incremental appropriations when the need for the water is substantiated.”

There appears agreement that the project cannot be completed in any event until some eight to ten years from date of beginning of construction. How the water and power needs may change during that period is problematical. Litigation is now pending to determine wheth- • er and to what extent the order of the Board rnay be binding upon the federal defendants.

The District Court has twice examined the adequacy of the EIS assuming optimum operating conditions as projected by the authorizing agency and has held that it is adequate as revised and supplemented. We have examined those proceedings .carefully and agree with the District Court. The NEPA has served its purpose. It has stimulated a full examination of all objections, adverse consequences, alternatives and, with the decision of the SWRCB, possible operational limitations. It now becomes a question of project justification in the light of all known and possible consequences. Future changes which may have a significant effect upon the environment, not heretofore examined, may be brought to the attention of the District Court under its reserved jurisdiction.

We affirm the judgments of the District Court and vacate all orders granting injunctions by this court.

      . Intervenor on the side of the plaintiffs is The Sierra Club.

      . Intervenors on the side of the defendants are:

      . In the meantime this court issued a temporary injunction restraining construction which was later continued in effect after final disposition in the District Court until this appeal could be determined.

      . The second opinion of the District Court in this matter is reported in 356 F.Supp. 131 (N.D.Cal.1973). Attention is invited to both opinions for the details of the controversy which is discussed generally herein, and for the excellent discussion by the court of the legal issues involved.

      . Where the question is the threshold jurisdictional test of whether the Act applies or does not apply, the standard is whether the plaintiff has alleged facts which, if true, show that the proposed project would materially degrade any aspect of environmental quality. Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1972). Compare Hanly v. Kleindienst, 471 F.2d 823, 829 (2d Cir. 1972), using the “arbitrary and capricious” standard, and the cases cited at 471 F.2d 823, 829 n. 9.
      Where the Act creating the Agency has established a special standard of review, that standard will of course apply. Scenic Hudson Reservation Conference v. Federal Power Commission, 453 F.2d 463, 467 (2d Cir. 1971).

      . 5 U.S.C. § 706(2) (A) provides in pertinent part:
      “ . . . [T]he reviewing court shall — ■ * * * * *
      “(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
      “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . .”

      . But see Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280 (9th Cir. 1973), which uses 5 U.S.C. § 706(2) (D) as the appropriate standard, permitting appellate review of findings and conclusions found to be “without observance of procedure required by law.” Under the circumstances of this case, either test would lead to the same result.

      . The official position of the Bureau of Reclamation with respect to the authority of SWRCB over it was made known to the trial court by telegram from James R. Smith, Assistant Secretary of the Interior, in response to a request from the trial court. 352 F.Supp. 50, 59 n. 2. The position in substance was that the Bureau was not subject to terms and conditions imposed by a state agency.
      We take judicial notice of the fact that on June 12, 1973, the Attorney General of California filed an action, Docket Number 73-0984, in the United States District Court for the Northern District of California on behalf of the SAVRCB against the Secretary of the Interior and the Commissioner of Reclamation to establish whether the state agency may impose conditions upon the federal agency. On July 20, 1973, the case was transferred to the United States District Court for the Eastern District of California, where it is now pending.
      We are also advised by the appellant, Sierra Club, in its opening brief that the obligation, if any, of the Bureau of Reclamation to comply with orders of the State Water Resources Control Board is presently subjudice in Central Valley Eastside Project Assn. v. SWRCB, (E.D.Cal.Civ. No. S2582) ; and in Kern County Water Agency v. SWRCB, (E.D.Cal.Civ. No. S2583).

      . “EXECUTIVE OFFICE OF THE PRESIDENT
      Council on Environmental Quality 712 Benson Place, N.W. Washington, D. C.
      “Dear Mr. BeLieu:
      “I am writing in regard to the New Melones Reservoir project being proposed by the Corps of Engineers. The project is now before the U.S. Court of Appeals for the Ninth Circuit on the issue of NEPA compliance.
      “The outcome of the State Water Resources Control Board deliberations on New Melones water rights has been a central question in the case. The Board issued Decision 1422 on April 4, 1973, getting out the States’ position on water rights. The Bureau of Reclamation was granted water rights pefmits, but subject to 25 limitations and conditions. These conditions will have significant impact on the operation of the New Melones Reservoir, and might well impair full effectuation of the project purposes.
      “We have reviewed Decision 1422 along with the final environmental impact statement and its supplement. It appears to us that the Board’s decision constitutes a significant new development, requiring some further response by the concerned Federal agencies before irreversible actions are taken on the project as originally proposed. In particular, we would like to know the views of the Corps of Engineers and/or the Bureau of Reclamation on the following issues:
      “1. If Decision 1422 is ultimately accepted as controlling on the water rights issue, what effect does the decision have on the environmental analysis conducted in the existing impact statement?
      “2. What arrangements has the Bureau of Reclamation or the Corps of Engineers made to reassess the alleged benefits of the project against the potential environmental costs in light of Decision 1422?
      “3. Since The Bureau of Reclamation is challenging State jurisdiction over the water rights issue, does this mean that the project as originally designed depends on a favorable outcome of this legal challenge? If so, what provisions are being made for accommodating the project to an unfavorable decision (upholding the State’s jurisdiction) if that eventually should occur?
      “We think that a supplemental draft environmental impact statement would be [sic] logical vehicle for discussing these questions and the implications in general of Decision 1422 — particularly if the environmental analysis conducted in the original statement is found to be significantly affected by the Decision. It is important that some response to the issues raised by the Board’s decision be prepared and circulated for review by interested parties prior to further action. In this connection it may be appropriate to request postponement of the present litigation until the agencies involved have had an opportunity to conduct such a reappraisal.
      “I look forward to hearing from you soon. Please give me a call if you have any questions or wish to discuss the matter.
      “Sincerely,
      “/s/ Buss “Bussell E. Train “Chairman
      “Honorable Kenneth E. BeLieu Under Secretary Department of the Army Washington, D. C. 20310”

      . Beferences to pages of the SWBCB decision are to the decision as reprinted in the appendix to the Defendants’-Intervenors’ brief.

      . “The record contains substantial evidence that the full conservation yield of the New Melones Project, and more, will eventually be needed in Tuolumne, Calaveras, San Joaquin and Stanislaus Counties (BT 145-147, 1131). These four counties include substantial areas in the Stanislaus Biver basin and are considered by the Bureau to be entitled to preference in the use of project water, based on the provisions of Public Law ST-874 and the California County of Origin Law (Water Code Sec. 10505) (BT 144). The Board agrees, as explained later in this decision.
      “The limited unappropriated water resource of the State should not be committed to an applicant in the absence of a showing of his actual need for the water within a reasonable time in the future. When the evidence indicates, as it does here, that an applicant already has a right to sufficient water to meet his needs for beneficial use within the foreseeable future, rights to additional water should be withheld and that water should be reserved for other beneficial uses. In this ease, existing surplus supplies .that are available to the Bureau should be utilized before storage is allowed in New Melones Beservoir to satisfy demand for more water in service areas outside of the four basin counties.
      “Although the full conservation yield of the project will be required for future development of the four basin counties, no facilities have been planned up to now to serve project water in these counties and no contracts have been negotiated for such service. The record is not clear how soon water user agencies will be ready to execute any such contracts.
      “The lack of evidence that New Melones Project water will be needed for consumptive use outside the four basin counties for many years to come, if ever, or that it will be used within those counties at any definite time in the future, raises substantial doubt whether permits should be issued to impound more water in New Melones Reservoir, at least at this time, than is needed for satisfaction of prior rights and non-consumptive purposes — protection and enhancement of fish and wildlife, water quality, recreation and generation of power.*
      * * * * *
      “* Permits to impound water for flood control are not required and were not requested.” Brief for Defendant-Interve-nors County of Calaveras, App. A at 16-17, Decision 1422, State Water Resources Control Board.

      . “[B]efore initiating any diversion of water from the Stanislaus River Basin in connection with the operation of the Central Valley Project, the Secretary of the Interior shall determine the quantity of water required to satisfy all existing and anticipated future needs within that basin, and the diversion shall at all times be subordinate to the quantities so determined.” 76 Stat. 1163, 1191.

      . We do not read the National Environmental Protection Act to give to the courts the ultimate authority to approve or disapprove construction of a properly authorized project where an adequate EIS has been prepared and circulated in accordance with the NEPA requirements. There has been some uncertainty in the views of other courts upon this issue. Compare Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D. C. 380, 463 F.2d 783, 786-787 (D.C.Cir.1971), with Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir. 1972). See also Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D. C. 5, 458 F.2d 827, 833 (D.C.Cir.1972) ; City of New York v. United States, 344 F.Supp. 929, 940 (E.D.N.Y.1972) ; Hanly v. Klein-dienst, 471 F.2d 823, 840 (5th Cir. 1972) (Friendly, J. dissenting). We have taken the view that final judgments of project justification are not subject to review in an action to consider the adequacy of an EIS statement under NEPA. Jiearilla Apache Tribe of Indians v. Morton, 471 F.2d 1276, 1279-1280 (9th Cir. 1973). Congress in reauthorizing the project and in determining whether to proceed in the light of the EIS must consider many other factors in addition to the environmental effects. Those questions are not before us and properly so.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John M. ROSINSKI, Defendant-Appellant.
    No. 73-1023.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 1, 1973.
    Decided Dec. 4, 1973.

      Martin I. Reisig (Court appointed), Detroit, Mich., on brief, for defendant-appellant,
    Ralph B. Guy, Jr., U. S. Atty., Michael D. Gladstone, Asst. U. S. Atty., Detroit, Mich., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and KRUPANSKY, District Judge.

       The Honorable Robert B. Krupansky, United States District Judge for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

Defendant-appellant, John M. Rosin-ski, was indicted for aiding and abetting another in an attempted robbery of the Self-Reliance Federal Credit Union, located at the corner of Tarnow and Michigan in the City of Detroit, a violation of 18 U.S.C. § 2113(a) and (d). He was found guilty by a jury and was sentenced to 10 years imprisonment.

On review appellant contends that:

1. The verdict is contrary to the weight and sufficiency of the evidence ;
2. The prosecutor denied him a fair trial by misleading the Court resulting in a co-defendant being called as a Court’s witness;
The Court committed reversible error by permitting the prosecution to introduce evidence of a co-defendant's guilty plea. 3.

In the case of United States v. Conti, 339 F.2d 10 (6th Cir. 1964), this Court held:

In considering a contention by an appellant that the evidence is insufficient to support a judgment of conviction, an appellate court will reverse the judgment if it is not supported by substantial and competent evidence, but will not disturb a conviction supported by such evidence. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L.Ed. 680, rehearing denied, 315 U.S. 827, 62 S.Ct. 637, 86 L. Ed. 1222; United States v. Knight, 336 U.S. 505, 508, 69 S.Ct. 704, 93 L. Ed. 845; United States v. Decker, supra, 304 F.2d 702, 705, C.A. 6th. In making such a determination the Court must take that view of the evidence with inferences reasonably and justifiably to be drawn therefrom most favorable to the Government, without weighing the evidence or determining the credibility of the witnesses. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Battjes v. United States, 172 F.2d 1, 5, C.A., 6th; Kowalchuk v. United States, 176 F.2d 873, 876, C.A. 6th; Apel v. United States, 247 F.2d 277, 279-280, C.A. 8th; N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292,-300, 59 S.Ct. 501, 83 L.Ed. 660.

Applying the criteria above set forth, the Court is of the opinion that a sufficient quantum exists to support the jury’s findings that the defendant aided and abetted in the attempted robbery of the federally insured credit union. Accordingly, this Court will not substitute its judgment for that of the jury.

In considering appellant’s second and third assignments of error, the Court finds that the Assistant United States Attorney requested the Court to call Jerry Steca, appellant’s co-defendant as a Court witness for the reason that “ . . . Government does not want to be put into the position that it would attest to his credibility and therefore be burdened with his testimony, so the Government does not want to call this witness.” Thereupon the Court called Jerry Steca as its witness over the objection of defendant’s counsel. The substance of his testimony was that on March 20, 1969, he pleaded guilty to the charge of attempted armed robbery of the Self-Reliance Federal Credit Union at Tarnow and Michigan Avenue in Detroit on December 28, 1968. The effect of Steca’s testimony was to place before the jury evidence of the substantive offense, namely that:

1. An attempt was made to rob the Self-Reliance Federal Credit Union ; and
2. The crime was attempted while the perpetrator was armed with a dangerous weapon.

Thereafter, upon cross-examination by defendant’s counsel, Steca testified that defendant Rosinski took no part in the attempted robbery.

Steca’s testimony was preceded by the following admonition to the jury:

The Court: Ladies and gentlemen of the jury. Mr. Zanglin on behalf of the Government has asked the Court to call the next witness, one Jerry Ste-ca. The Court has granted that request and will call Mr. Steca as the Court’s witness. Now this means that neither side, either Mr. Zanglin or Mr. Barbara for the defense, vouches for his credibility and it gives both sides the right to cross-examine him.

It is apparent that the district court was fully aware of the circumstances surrounding the Assistant United States Attorney’s request concerning the witness Steca as well as the limited purpose for which such witness was to be called. The district court fairly and adequately instructed the jury as to the consideration to be given Steca’s testimony in the following language:

The fact that a co-defendant pleads guilty is not evidence of the guilt of any other defendant or that the crime charged in the indictment was committed. The guilt or innocence of the defendant still on trial must be determined by you, the jury, solely on the evidence introduced in the trial of this case. The defendant on trial here, John Rosinski, is entitled to an independent consideration by you of the evidence as it relates to his alleged participation in the alleged offense contained in the indictment.

Accordingly, this Court concludes that the appellant’s second and third assignments of error are without merit, and further, that the proceedings failed to disclose any federal constitutional violation in use of the testimony of appellant’s co-defendant Steca. Farmer v. Kropp, 445 F.2d 5 (6th Cir. 1971). The judgment of the district court is affirmed.


author: PER CURIAM:

text:
    Robert E. QUARLES et al., Plaintiffs-Appellants, v. OXFORD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.
    No. 72-3534.
    United States Court of Appeals, Fifth Circuit.
    Nov. 9, 1973.
    Rehearing and Rehearing En Banc Denied Feb. 6, 1974.

      Lewis Myers, Jr., Oxford, Miss., for plaintiffs-appellants.
    Will A. Hickman, Oxford, Miss., for defendants-appellees.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
   ON PETITION FOR REHEARING

PER CURIAM:

■ Appellees’ • petition for rehearing is hereby granted and accordingly our opinion of July 16, 1973 is withdrawn in favor of the one below.

Oxford’s otherwise successful recently desegregated school system is plagued by a transportation problem: hundreds of elementary school children must travel more than a mile and a half to school across dangerous terrain. As relief supplementary to its desegregation order of January 8, 1970, appellants requested the court below to order free transportation for all grade school children residing more than 1.5 miles from their assigned schools. The trial court found that the desegregation order had not increased the children’s transportation burden, nor had it distributed the burden unequally. Therefore, the court denied appellants’ transportation request, and we affirm.

Oxford presents a situation unlike any encountered before by this circuit in a desegregation suit. According to the trial court’s findings, which we cannot say are clearly erroneous, Oxford’s black population is scattered throughout the town, albeit in the form of a number of black neighborhoods and not in homogeneous integration. Because of its schools’ locations in relation to the town’s children, Oxford historically has employed busing as a tool for operating its school system. Many children, black and white, live beyond walking distance from their schools.

All went well until September 1969, when poor finances forced the school board to discontinue busing all students who lived within the city limits of Oxford. The trial court specifically found that busing was not ended for racial reasons. Although free public busing ended, the children’s transportation needs continued. Consequently, private groups began busing students for a fee, a charge which worked a significant hardship on large impoverished families.

A January 8, 1970, desegregation order required all grade school children in Oxford to attend two formerly white schools. Those in grades one through three were assigned to Bramlett, and those in four through six would attend Oxford Elementary. The transportation burden of elementary students as a whole was not increased. The burden was redistributed as some students found themselves closer to their new schools while others were farther away. The redistribution did not affect one race more than the other. The need for bus transportation that existed before desegregation remained unchanged.

Despite the absence of free busing the desegregation scheme has been a success. The Oxford schools’ attendance rate is ninety-five percent, and the unitary school system enjoys wide public support. Private busing continues to fill the need for school transportation; its expense falls entirely on students’ parents instead of the community as a whole. Consequently, the trial court found, “[cjertain black parents in large families experience economic hardship because of the cost incurred weekly for private transportation of their children to school.”

At the trial plaintiffs showed that, under the desegregation plan, some black school children reside beyond walking distance (1.5 miles) from their schools, and that the danger and the distance involved necessitate private busing. Private busing creates a financial hardship on some black families. Since this court has said in United States v. Greenwood Municipal Separate School District, 5th Cir. 1972, 460 F.2d 1205, that black students are not to shoulder the burden of desegregation, and in other cases that black students assigned to schools out of their neighborhoods and more than 1.5 miles from home are entitled to free transportation as part of the desegregation plan, plaintiffs contend that Oxford’s school district must provide free busing. We find this analysis superficially appealing but unpersuasive.

The facts of this case require us to decide whether a desegregation order must include free busing to fill a transportation need that is not related either to segregation or to the court’s order dismantling segregation. The answer to this problem lies in three cases: Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; United States v. Greenwood Municipal Separate School District, 5 Cir., 1972, 460 F.2d 1205; and Brown v. Board of Education of City of Bessemer, Alabama, 5th Cir. 1972, 464 F.2d 382.

We must point out that busing as a constitutional right is not an issue in this case, contrary to defendant’s rhetoric. Segregated schools violate the pupils’ right to equal protection of the law. When that right is violated, students may ask the federal district court for relief; the court uses its equity powers to mold relief that will restore students’ constitutional rights in a manner appropriate to the school system and city before the court. Swann, supra, 91 S.Ct. at 1276.

Swann also tells us that busing is a tool the chancellor may use to implement a desegregation plan and must use when the plan will otherwise fail. In that case the Court found that busing would be necessary to effectuate the court-ordered majority-to-minority transfer plan.

Bessemer likewise required busing because it was necessary to implement the court-ordered desegregation plan. The district court’s desegregation order included a majority-to-minority transfer plan and school attendance based on geographic zones. The order contained one important caveat. If a student lived more than 1.5 miles farther from his assigned high school than from the other high school, and if transportation were not available to him at a moderate cost, he could attend the other, nearer high school. The court did not provide for free busing. Thus its failure to provide free busing emasculated the desegregation plan; anyone could plainly see that without free transportation many students would elect to stay at their old one-race high school rather than travel farther to a new integrated high school.

Following Swann and Bessemer we must order free busing for Oxford if it is necessary to disestablish the old dual school system. Oxford’s experience shows that free busing is not “necessary” in the sense that the desegregation plan will fail without it. On the contrary, the system is now entirely unitary and the attendance rate is ninety-five percent. While the school board’s decision to place the cost of busing on individual parents may be debatable, the plan does work. We do not face here the questions that would arise if busing’s cost forced many children to stay home and dropped the attendance rate significantly.

Making a desegregation plan work is not the only factor a court should consider in deciding whether busing is necessary. In United States v. Greenwood Municipal Separate School District, 5th Cir. 1972, 460 F.2d 1205, the district court’s noncontiguous zoning plan compelled black elementary students to leave their nearby neighborhood black school and attend a white school two miles away without the aid of free busing. The appellate court disapproved and required free busing, saying “[n]o legitimate reason is put forth for forcing them and their parents to shoulder the burden of eliminating these vestiges of segregated schools in the circumstances present here.” 460 F.2d at 1207. From this we conclude that when a court acts to order desegregation, it is required to supply free transportation to offset any significant increase in travel requirements falling on one race or the other as a result of the order.

In the instant case, by contrast, the trial court found that its desegregation order left some white students and some black students closer to elementary school than before, while other blacks and other whites found themselves farther away. Neither race suffered an increase in its transportation burden. The overall transportation burden was not increased but was redistributed with equal effect on each race. If one race does not face an increased transportation burden as a result of desegregation, Greenwood does not require busing.

Considerations of fairness might mandate free busing where a desegregation plan significantly increased the total distance students in the community must travel to school, even though the increase affected both races. For example, a plan might require all students in the community to travel farther to school, with the average increase per student being five miles per day. In that case the court has imposed a significant new burden, and it would be appropriate for the court to order busing that would alleviate the burden it has created. In the instant case, however, the trial court found that “desegregation was accomplished without a noticeable increase in the burden of students in elementary grades getting to school as compared with that in attending dual schools operated in the freedom-of-choice area.” Thus we cannot require busing on this ground.

The Oxford plan treats both races impartially. It does not increase the total travel requirement, but redistributes it evenhandedly. In short, the transportation problems faced by Oxford students have nothing to do with desegregation. There is no nexus between desegregation and Oxford’s transportation problems. If Oxford citizens dislike the present distribution of busing costs, they must seek redistribution in the legislative arena.

We emphasize that Oxford presents a most unusual situation. The court’s desegregation order has been implemented effectively without free busing, and the order increased neither the general transportation burden nor the transportation burden of either race. Were any of these facts different, free busing would be required. We do not hold that school boards may avoid the obligation to provide free busing simply by arranging private busing financed at student expense.

In view of the unique circumstances present in this case, the decision of the district court is affirmed.