author: ADAMS, Circuit Judge.

text:
    BETHLEHEM MINES CORPORATION, a West Virginia corporation, v. UNITED MINE WORKERS OF AMERICA et al., Appellants.
    No. 71-2004.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 1, 1972.
    Decided Feb. 12, 1973.
    Rehearing En Banc Denied April 20, 1973.
    Resubmitted Under Third Circuit Rule 12(6) on April 23, 1973 as a Result of an Order of April 20, 1973.
    Rehearing Denied April 24, 1973.

      Eugene A. Creany, Ebensburg, Pa., Edward L. Carey, Washington, D. C., Lloyd F. Engle, Jr., Melvin P. Stein, Kuhn, Engle & Blair, Pittsburgh, Pa., for appellants.
    Donald B. Heard, Kathleen A. Merry, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for plaintiff-appellee; Wm. J. Tattersall, Daniel C. Mills, Jr., Bethlehem, Pa., Bethlehem Mines Corp., of counsel.
    Before BIGGS, ADAMS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

In this appeal, defendant Local 1368 challenges an order of the district court adjudging it in civil contempt.

Plaintiff, Bethlehem Mines Corp., brought suit under section 301 of the Labor-Management Relations Act of 1947 against the United Mine Workers of America, District No. 2, and Local 1368. Alleging an illegal strike in violation of the collective bargaining agreement, Bethlehem Mines sought to compel the defendants to return to work and to arbitrate the dispute.

On February 18, 1971, the district court held a hearing on plaintiff’s application for a temporary restraining order and, after noting that the involved employees had returned to work, decided to take no action other than to retain jurisdiction. On February 26, 1971, after anotherwork stoppage, the district court held a further hearing and entered a temporary restraining order enjoining the strike and directing arbitration of the dispute. On March 4, 1971, the temporary restraining order was continued until March 9, 1971. After further proceedings, the district court, at a hearing on March 9, 1971, orally continued the temporary restraining order as a preliminary injunction, without objection from the defendants. Defendants neither moved to vacate the temporary restraining order or the preliminary injunction continuing it, nor did they file an appeal.

On May 26, 1971, the district court, on plaintiff’s motion, issued a rule to show cause why defendant Local 1368 should not be adjudged in civil contempt because of further work stoppages. Hearing on this motion was continued. On August 19, 1971, however, after another work stoppage, plaintiff filed a second motion for a rule to show cause and a motion for adjudication of civil contempt.

On August 23, 1971, the district court held a hearing on the motions filed on August 19. The next day the district court filed a memorandum and findings of fact and conclusions of law, dated August 23, 1971, and a memorandum and order adjudging defendant Local 1368 in civil contempt.

Both in briefs and at oral argument, Local 1368 has mounted its assault on the district court’s order holding it in civil contempt, principally upon two grounds: (1) because of the Norris-LaGuardia Act the district court lacked the power to grant injunctive relief and erred in ruling that, under Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), it had such power; (2) the district court did not have jurisdiction because it failed to make required findings of fact and conclusions of law in support of the preliminary injunction.-

Although the Federal Rules of Civil Procedure provide for the filing of findings of fact and conclusions of law in support of an order granting a preliminary injunction, a failure to do so simultaneously with the decree does not deprive a court of jurisdiction and of power to adjudge in civil contempt those violating such order. Cf. United States v. Ingersoll-Rand Co., 320 F.2d 509 (3d Cir. 1963).

The Norris-LaGuardia Act’s restriction on federal court power to grant injunctive relief in labor disputes is, in the posture of the present case, not controlling with respect to the question whether the court has the power to hold a defendant in contempt for refusing to obey its order. While the Norris-LaGuardia Act delimits the power of federal courts to issue injunctions, it does not remove federal jurisdiction to adjudicate controversies properly before the court. Even assuming, arguendo, that the district court may be ultimately deemed without power to grant a particular form of relief, that does not imply that the court is entirely without jurisdiction to determine, by an appropriate hearing, whether to consider the matter at all.

In this case, to ascertain whether it had the power to grant injunctive relief, the district court had to examine the applicability of the Norris-LaGuardia Act and the Supreme Court’s decision in Boys Markets, swpra. The court certainly had jurisdiction to make that determination. And after the district court held that, under Boys Markets, it had the power to grant injunctive relief, any disagreement with that holding should have been settled by the orderly process of appellate review, not by purposeful disobedience of an order rendered by a court of competent jurisdiction. Under these circumstances, to permit by an appeal of the contempt citation an attack upon the basic order that was violated would undermine respect for legal process. Thus, the district court had jurisdiction to enter its orders in this case, at least jurisdiction sufficient to uphold an order of civil contempt.

At oral argument and in supplemental briefs, it was suggested that the district court’s non-compliance with F.R.Civ.P. 58 may require reversal in this case. That rule states in part: “Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth. . . . ” Here, the district court entered a temporary restraining order and later continued it orally as a preliminary injunction. Since the temporary restraining order had expired by its own terms when the preliminary injunction was granted, if defendant violated anything, it must have been the preliminary injunction. It was contended at oral argument that the preliminary injunction, never set forth on a separate document, was ineffective and that Local 1368, therefore, violated no valid court order.

Rule 58, however, was intended primarily to clear up the uncertainties of determining when, for the purpose of appellate review, there is a final, appeal-able judgment. See e.g. United States v. Chambers, 429 F.2d 410 (3d Cir. 1970); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir. 1970); Pure Oil v. Boyne, 370 F.2d 121 (5th Cir. 1966); cf. Healy v. Pennsylvania R. Co., 181 F.2d 934 (3d Cir. 1950); In re D’Arcy, 142 F.2d 313 (3d Cir. 1944). In addition, the purpose of Rule 58 is to insure that parties know what is required of them, that the public has notice of the entry of judgments, and that an appellate court has sufficient information upon which to base its review.

Under the facts of this case, none of these purposes of Rule 58 would be thwarted. There is no question involved of the time for filing an appeal or of any other matter dealing with an appeal. Defendant never attempted to appeal the granting of preliminary relief, nor has it alleged that it was in any way prevented from doing so. Moreover, the mere fact that the preliminary injunction was not in writing and set forth in a separate document has not been claimed, and, in the context of the present dispute, would not appear to prejudice anyone.

The parties were present in court, either personally or by counsel, during the hearings on the temporary restraining order, when the preliminary injunction was granted, and also in subsequent conferenees with the judge. Because the oral preliminary injunction simply continued the earlier temporary restraining order which was set forth in a separate document, the record makes clear that the parties were fully aware of the existence and content of the injunction. No objection was made by the defendant to the granting of injunctive relief, nor was any appeal ever filed. Under these circumstances, we would be exalting form over substance if we were to hold that in failing to enter the preliminary injunction on a separate document, the district court thereby rendered itself powerless to adjudge violations in civil contempt. Accordingly, on the basis of the facts in this case, the failure to set forth the preliminary injunction order in a separate document did not preclude an adjudication of civil contempt.

It should be stressed that Local 1368 pursued here a course of conduct in the clear belief, as the court below found, that such action would violate a valid court order. The integrity of the judicial process demands compliance with court orders until such time as they are altered by orderly appellate review.

The concept of “a government of laws and not of men,” describes a critical quality of our political society. So strongly did the framers of the Constitution determine to secure a reign of law that they conferred unusual safeguards on the judicial office. No one, no matter what his position, nor how virtuous his impulse, was to be a judge in his own case.

No type of dispute is more meet for judicial resolution than one calling into question the power of a court to decide. Jurisdictional controversies áre hardly appropriate for final determination by the self-interest of a party.

Plaintiff here sought the aid of a court in circumstances attended with some doubt. Only when a court so obviously journeys outside its prescribed range as to be usurping judicial form may an order issued by it be disregarded. Whether a party may be called to the bar of justice is not for that party, himself, to decide.

If a court had been clearly deprived of the power to act in a ease, it, of course, could not overcome such lack of power by a baseless or superficial inquiry into the question. Such would be a mere pretext. But that clearly was not the case here. And, in such circumstances, the direction of the court must be sustained, else we would risk rejecting the requirements of the judicial process.

By deliberately disobeying the district court, the defendant attempted to take upon itself the power to determine what is law and, in doing so, subjected itself to civil contempt.

An order affirming the judgment of the district court will be entered.

OPINION SUR PETITION FOR REHEARING

Appellants, United Mine Workers of America, et al., have petitioned for a rehearing of this Court’s decision of February 12, 1973, that affirmed a judgment of civil contempt in the amount of $500.-00. They rely primarily upon the ground that the panel failed to perceive a now-proffered distinction between criminal and civil contempt that, it is argued, affects the power of a court to punish for contempt when the validity of the underlying order is questioned.

Insisting that the panel erred in concluding that the validity of the underlying order is not, in the circumstances of this case, a condition precedent to the proper affirmance by this Court of the judgment of civil contempt, appellants quote the following language from United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), in support of their position:

“It does not follow, of course that simply because a defendant may be punished for criminal contempt for disobedience of an order later set aside on appeal, that the plaintiff in the action may profit by way of a fine imposed in a simultaneous proceeding for civil contempt based upon a violation of the same order. The right to remedial relief falls with an injunction which events prove was erroneously issued, (citing cases) and a fortiori when the injunction or restraining order was beyond the jurisdiction of the court. ... If the Norris-LaGuardia Act were applicable in this case, the conviction for civil contempt would be reversed in its entirely.” 330 U.S. at 294-295, 67 S.Ct. at 696 (emphasis changed) (citations and footnotes omitted).

Appellants, however, apparently misapprehend the important distinction between this dictum in United States v. United Mine Workers and the present ease. In the Supreme Court case, appeals were taken not only from the judgment of contempt, but also from the underlying order which the defendants had disobeyed. In the present case, the appellants neither objected to nor appealed from the underlying order, the preliminary injunction.

It is with this distinction in mind that the above quotation must properly be read. Viewed in this way, the Supreme Court was saying only that if the underlying order is reversed or vacated during the orderly course of appellate review, then a judgment of civil contempt, though not criminal contempt, must also be set aside. Thus, the Supreme Court described the kind of order to which it was referring as: “an order later set aside on appeal” and “an injunction which events prove was erroneously issued. ...” 330 U.S. at 295, 67 S.Ct. at 696.

Any doubt that the Supreme Court was distinguishing civil contempt from criminal contempt only for the purpose of cases in which the disobeyed order was “later set aside on appeal,” can be dispelled by a careful examination of the cases cited by the Supreme Court to support the proposition that “[t]he right to remedial relief falls with an injunction which events prove was erroneously issued. . . . ” 330 U.S. at 295, 67 S.Ct. at 696.

Of the cases cited by the Supreme Court, Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 86 F.2d 727 (2d Cir. 1936) (per curiam), is a good example of the kind of situation to which the Supreme Court was referring. The others are set out in the margin. In Salvage, the Second Circuit considered an appeal from an order adjudging the defendant in civil contempt for violating a preliminary injunction. The Second Circuit had held in a companion case decided the same day, in which the defendant appealed the underlying order, that the preliminary injunction was invalid. In the civil contempt appeal, the court, therefore, reversed the judgment of civil contempt on the ground that:

“It is true that the reversal of the decree does not retroactively obliterate the past existence of the violation, yet on the other hand it does more than destroy the future sanction of the decree. It adjudges that it never should have passed; that the right which it affected to create was no right at all. To let the liability stand for past contumacy would be to give the plaintiff a remedy not for a right but for a wrong, which the law should not do.” 86 F.2d 727.

It is clear from this statement that the court based its reasoning upon the fact that the underlying order, upon which the judgment of civil contempt rested, had been reversed on appeal, for in practically the same breath it declared: “It is indeed abundantly well settled that a defendant may not dispute the validity of an injunction upon a motion to punish him for contempt.” Id.

In ,the present case, the appellants would have us hold that even though they “may not dispute the validity of an injunction upon a motion to punish [them] for contempt” id., they should be permitted to so attack the preliminary injunction, which they have not appealed directly, on review of the judgment of civil contempt. Such is not the law. Appellants made no objection to the order granting injunctive relief, nor was any appeal ever filed from such order. Under these circumstances, and in view of the above interpretation of the Supreme Court’s United Mine Workers case and cases cited therein, the appellants will not be heard to attack the validity of the preliminary injunction upon this appeal of the judgment of civil contempt.

Because of our previous holding that the district court did not lack jurisdiction of the parties and of the subject matter at least sufficient to grant preliminary injunctive relief the present inquiry is at an end.

An order will be entered denying the petition for rehearing by the panel.

      . Local 1386 has argued that Emery Air Freight Corp. v. Local 295, 356 F.Supp. 974, (E.D.N.Y., 1972) (Emery II), on remand from, Emery Air Freight Corp. v. Local 295, 449 F.2d 586 (2d Cir. 1972) (Emery I) bears upon the issues presented in this appeal. In Emery I, the Second Circuit examined a factual situation similar to that in the present case, except that there the union appealed the underlying preliminary injunction as well as the order of civil contempt. The court reversed the preliminary injunction as improper under the Norris-LaGuardia Act and the Boys Markets case, and set aside for reconsideration by the district court the order of civil contempt that had been issued without a prior hearing.
      The Second Circuit specifically left open for consideration by the district court the question which we address here: “Since compliance with the Norris-LaGuardia Act is a ‘jurisdictional’ requirement, say appellants, the district court had no ‘jurisdiction’ to enter the orders they allegedly ignored and, therefore, the contempt must be set aside. The questions raised by appellants . . . are substantial. However, we need not decide these delicate issues. ...” 449 F.2d at 592.
      On remand, in Emery II, the district court reconsidered the order of civil contempt and in a rather conclusory statement held: “This Court has fully reconsidered this matter in the light of the strong suggestions of the Circuit Court and concludes that the district court had no original jurisdiction.” 356 F.Supp. at 976. Although Emery II lends authority to Local 1368’s position in the present case, we decline to follow it since the absence of supportive reasoning for the district court’s conclusory statement does not convince us that the Emery II court appreciated the distinction between jurisdiction to adjudicate a controversy and power tó grant a particular form of relief. This is in contradistinction to our holding that the district court in the present case did not lack jurisdiction to adjudicate the controversy and to adjudge Local 1368 in civil contempt.

      . See United States v. United Mine Workers of America, 330 U.S. 258, 307, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (Frankfurter, J. concurring).

      . The panel did examine and uphold the district court’s jurisdiction to enter the preliminary injunction.

      . Cf. United States v. United Mine Workers, 330 U.S. at 361 n. 26, 67 S.Ct. at 729 (Rutledge, J., dissenting) (“if an injunction is reversed on appeal”).

      . The Court cited in the text: Worden v. Searls, 121 U.S. 14, 7 S.Ct. 814, 30 L.Ed. 853 (1887); Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 86 F.2d 727 (2 Cir. 1936); S. Anargyros v. Anargyros & Co., 191 F. 208 (C.C.N.D.Cal.1911).
      In footnote 61, the Court also cited, as providing some support, Leman v. Krentler-Arnold Co., 284 U.S. 448, 453, 52 S.Ct. 238, 76 L.Ed. 389 (1932); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 451-452, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Bessette v. W. B. Conkey Co., 194 U.S. 324, 329, 24 S.Ct. 665, 48 L.Ed. 997 (1904); McCann v. New York Stock Exchange, 2 Cir., 80 F.2d 211, 214 (1935), cert. denied, 299 U.S. 603, 57 S.Ct. 233, 81 L.Ed. 444 (1936).

      . Although cited by the Supreme Court, most, but not all of these cases, see note 3, supra, present analogous situations. In Worden, the defendants appealed from the final decree, not just the contempt decree, and thus the Court stated: “We have jurisdiction to review the final decree in the suit and all interlocutory decrees and orders.” 121 U.S. at 25, 7 S.Ct. at 820.
      In Krentler-Arnold, the Court distinguished criminal contempt from civil contempt solely for the purpose of determining whether a federal court located in Massachusetts which had jurisdiction over a Michigan corporation, the plaintiff, during the proceedings that resulted in the grant of injunctive relief for the defendant, lost such personal jurisdiction for the purpose of a later civil contempt proceeding merely because the company committed the alleged contemptuous acts in Michigan, not in Massachusetts.
      In Gompers, the Court, distinguishing civil from criminal contempt, declined to enter a decree of civil contempt since the parties had settled the dispute and, therefore, the plaintiff did not require such relief.
      In Bessette, the Supreme Court stated that in a civil contempt case, if it is concluded on appeal from the final order of the case that the underlying order was erroneous, “[Tjhere would in most cases be great propriety in setting aside the punishment which was imposed for disobeying an order to which the adverse party was not entitled.” 194 U.S. at 329, 24 S.Ct. at 667.
      The original order in Anargyros had been reversed on appeal; therefore, the court reversed the judgment of civil contempt.

        McCann involved a situation in which the plaintiff, who was harassing the defendants, violated a preliminary injunction restraining him from doing so. The Second Circuit, in an opinion by Learned Hand, reversed the judgment of contempt, because it was unclear whether the district court had held the plaintiff in civil or criminal contempt. Far from undermining the panel’s decision in the present case, McCann supports the present disposition, for Judge Hand stated, after suggesting that the underlying preliminary injunction was erroneous: “Although, as we have indicated, that order was erroneous, the plaintiff was nevertheless bound to obey it, provided the judge had jurisdiction. We think that he did have jurisdiction and that the plaintiff was bound to obey, until the order was vacated or reversed.” 80 F.2d at 214 (citations omitted). It is interesting to note that this statement and the indication that the underlying order was erroneous were essentially gratuitous, since no appeal had been taken from the preliminary injunction.

      . Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 86 F.2d 725 (2d Cir. 1936) (L. Hand, J.), cert. denied, 308 U.S. 599, 60 S.Ct. 131, 84 L.Ed.2d 501 (1939).

      . In addition to the cases cited in note 3, supra, see Jacksonville Paper Co. v. Tobin, 206 F.2d 333, 335 (5th Cir. 1953); Securities and Exchange Comm. v. Okin, 137 F.2d 862 (2d Cir. 1943); Metallizing Engineering Co. v. B. Simon, Inc., 67 F. Supp. 566, 569-570 (W.D.N.Y.1946);
        cf. Republic Electric Co. v. General Electric Co., 30 F.2d 99 (3d Cir. 1929); see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599 (1949), part of the Jacksonville Paper Co. litigation, see 206 F.2d 333, in which the Supreme Court held, inter alia, that an adjudication of civil contempt would be proper even though it was at least questionable whether the administrative order upon which the district court’s violated injunction was based was not within the administrator’s statutory authority and that the injunction was ambiguous. 336 U.S. at 195-197, 69 S.Ct. at 501 (Frankfurter, J., dissenting). The Court noted, however, that “[T]liere was no appeal from [the district court’s injunction].... [T]here was a, method of relief apart from an appeal. Respondents could have petitioned the District Court for a modification, clarification or construction of the order. But respondents did not take that course either. • They undertook to make their own determination of what the decree meant. They knew they acted at their peril.” 336 U.S. at 192, 69 S.Ct. at 500. But cf. Hyde Construction Co. v. Koehring Co., 388 F.2d 501, 511 (10th Cir. 1968), in which the court permitted an attack upon the underlying order because it was a temporary restraining order which is generally not subject to challenge through direct appeal.


source: Caselaw Access Project

author: TAMM, Circuit Judge:

license: Public Domain

text:
    ALLIED INDUSTRIAL WORKERS, AFL-CIO LOCAL UNION NO. 289, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cavalier Division of Seeburg Corporation and Cavalier Corporation, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAVALIER DIVISION OF SEEBURG CORPORATION and Cavalier Corporation, Respondent. CAVALIER DIVISION OF SEEBURG CORPORATION and Cavalier Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 71-1775, 71-1999 and 71-2030.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 21, 1972.
    Decided Jan. 12, 1973.
    Reconsideration Denied Feb. 12, 1973.

      Mr. George H. Cohen, New York City, with whom Messrs. John S. Williamson, Jr., New York City, and Kenneth R. Loebel were on the brief, for petitioners in No. 71-1775.
    Mr. Steven R. Semler, Atty., N. L. R. B., with whom Mr. Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., was on the brief for petitioner in No. 71-1999 and respondent in Nos. 71-1775 and 71-2030.
    Mr. Nathan Lewin, Washington, D. C., with whom Mr. Martin D. Minsker, Washington, D. C., was on the brief, for petitioners in. No. 71-2030, respondent in No. 71-1999 and intervenor in No. 71-1775.
    Before TAMM, Circuit Judge, WADE H. McCREE, Jr., Circuit Judge (for the Sixth Circuit), and MacKINNON, Circuit Judge.

       Sitting by designation pursuant to 28 U.S.C. § 291(a) (1970).

   TAMM, Circuit Judge:

In this consolidated statutory review proceeding under the National Labor Relations Act, the parties place in issue the Labor Board’s finding that Cavalier Division of Seeburg Corporation and Cavalier Corporation [hereinafter collectively “Employer” or “Company”] engaged in unfair labor practices in violation of § 8(a)(5), (3) and (1) of the Act, 29 U.S.C. § 158(a)(5), (3) and (1) (1970), by withholding accrued vacation pay from employees during the course of a strike, by discharging several employees for alleged misconduct during the strike, by eventually refusing to bargain with Allied Industrial Workers, AFL-CIO Local Union No. 289 [hereinafter “Local 289” or “Union”] and supply certain requested information to the Union, and by unreasonably delaying the reinstatement of strikers following their unconditional offer to return to work after the strike. Moreover, the parties challenge the Board’s finding as to the date that the strike was converted from an economic strike into an unfair labor practice strike. Having carefully considered the arguments advanced by the parties, with one modification indicated below we grant the Board’s application for enforcement of its order.

I. Facts

The Company and Local 289 had a bargaining relationship commencing with the Union’s first certification in 1955. Successive collective-bargaining agreements ensued, the most recent of which expired on July 13, 1969. A series of unfruitful bargaining sessions then transpired, culminating in a union membership vote to strike. The strike, economic in origin, began on July 21, 1969, and was destined to last until February of the following year. Several incidents which occurred during and immediately after the strike are the subject of this appeal.

A. Withholding Vacation Pay

On May 1, 1969, the Company posted a notice stating that employee vacations would be taken during the first two weeks in August. The notice was posted pursuant to the terms of the collective-bargaining agreement, which further provided that employees would be entitled to vacation pay each year in lieu of an actual vacation. While the Company maintained some discretion under the agreement in setting the precise dates, the vacation period was required to fall between June 15 and September 1. By letter to the Union dated July 28, 1969 — one week after the strike began ■ — the Company indicated that it had decided to delay commencement of vacations because of intervening events over which it had no control. The letter stated that the Union would be notified when a new decision concerning the vacation schedule had been reached. At the next bargaining session, held on or about July 31, the Union raised the topic of vacation pay. A Company representative stated that the letter spoke for itself, that no vacation could be rescheduled until after the strike, and that the matter of vacation pay would have to be decided later. The Union pressed the issue at the next bargaining session, held on August 5, asserting that the Company had a legal obligation to give the employees their vacation pay. The response was that “[t]he Company is not legally obligated to subsidize the strike.” Finally, on August 11, the Union president and a group of employees confronted Company officials with the same demand, to which the Company president responded “we are not going to pay the vacation pay until the strike is over.” The controversy remained unabated, the Company refusing vacation pay to both working and striking employees until October 30, at which time the sums were paid.

B. Suspension and Discharge of Employees

Between the August 5 session and November 12 there was a bargaining hiatus. During that period several incidents occurred involving employees Fletcher,Brewer, Snyder, Tarpley, Creek and Rollins.

Some union members who previously had reported to strike returned to work. Among them was George Smith. Smith and several other nonstriking employees formed a car pool for the purpose of transportation to and from work. On the afternoon of September 23, as they were leaving the plant in Smith’s car and with Smith driving, they were followed for some time by a car containing Union president Fred Fletcher and two striking employees, Vernon Brewer and Edward Snyder. No threatening gestures, horn blowing or interference of any kind occurred between the groups. Ultimately, Smith pulled into the driveway of a parking lot opposite the home of one of the occupants of his car. Fletcher followed suit, stopping his car about thirty or forty feet away. Nothing transpired for about half a minute, at which point the doors of Smith’s car were abruptly opened and the occupants rushed to the front seat. It appeared to Fletcher that someone was sick in Smith’s car. Fletcher then started his car and drove off, unaware that the driver of the other car had died of a heart attack. On September 25, Fletcher, Brewer and Snyder were notified by letter from the Company that they were suspended pending investigation for misconduct. Ultimately, on August 10, 1970, the latter two individuals were discharged on the ground of misconduct during the strike.

Whether by design or coincidence, more than the usual number of pickets appeared to picket on the morning of November 3, 1969. By the time nonstriking employees began to report to work, conditions had deteriorated considerably. Stones were thrown, obscenities and invectives uttered, and threatening gestures made by the strikers. At issue is the alleged misconduct of two picketing employees, Lora Creek and Barbara Tarpley. On the morning in question Tarpley and Creek shouted obscenities at people entering the plant and, on one occasion, yelled to an employee that they would “get” her. One of the two individuals also threw down a picket sign at or near an automobile entering the plant. In addition, they, occasionally joined hands on the sidewalk, thereby forcing employees to walk around them in order to enter the plant. Tarpley and Creek continued to strike and picket until the strike ended, at which point they requested reinstatement and unconditionally expressed their desire to return to work. The Company failed to respond in any manner until September 2, 1970, at which point the two individuals were informed by separate letters that they were discharged for misconduct during the strike.

Also discharged for allegedly participating in and leading a secondary boycott, by letter dated February 13, 1970, in response to his application for reinstatement, was striker Leonard Rollins. Toward the end of October, 1969, at about the same time the Company began hiring permanent replacements for striking employees, Rollins became involved with a local civil rights leader, Reverend H. H. Wright. On or about October 5, following a meeting between Rollins and Reverend Wright, the details of which are undisclosed, the latter addressed a regular meeting of the Union. He expressed concern to the attending members over the hiring of replacements, inferring that this was part of a conspiracy against laborers and poor people. At a November 18 press conference, Rollins and Reverend Wright jointly announced the formation of a coalition between the two allegedly victimized groups to help those who had been “dismissed” by the Company. Rollins, while not mentioning the word “boycott,” did draw attention to the fact that the Company’s sole product was “co6lers” for Coca-Cola and that the “Coca-Cola industry” was its sole buyer. Reverend Wright supplemented that statement by urging the public to buy no more Coca-Cola.

Several marches directed at convincing the public not to buy Coca-Cola were subsequently organized by the Reverend Wright and participated in by Rollins. One such march directly involved a customer of the Company, and during that episode the marchers interfered with ingress and egress to the Coca-Cola Bottling Company in Chattanooga. Finally, a handbill was distributed from the Union hall which found its way into the streets of Chattanooga urging the public to support the strike by refraining from purchasing Coca-Cola. The handbill could not be attributed to the leadership of the Union or to any other individual. Rollins, a rank and file member of the Union, participated in such activities without the sanction of the Union. Indeed, the International president of the Union specifically ordered the officers of the Union not to participate in boycott activities, an order which they heeded, and it was never established that the Union itself was directly involved in such activities.

C. Refusal by the Company to Bargain and Events that Followed

The parties met in bargaining sessions on August 5 and again on November 12, 1969. On December 2, the Union requested by letter to the Company that further bargaining ensue. The Company replied by letter on December 4:

[P]lease be advised that we must at this time defer your request for further bargaining pending disposition by the National Labor Relations Board of the petition which has been filed, apparently raising a question concerning representation. When this matter has been resolved, we shall act accordingly.

The Company’s board chairman testified to several additional factors influencing his decision to terminate bargaining although these were apparently not communicated to the Union at that time. First, he testified that 357 individuals were reporting to work, compared to 307 remaining strikers (some of whom had apparently found employment elsewhere) . Second, he testified to personal knowledge of “overwhelming sentiment” among the working employees to no longer be represented by the Union, although no evidence as to the identity of those expressing such sentiment or their number was proffered.

On February 7, 1970, the Union notified the Company that the strike was ended and by letter requested reinstatement on behalf of all striking employees, indicating their willingness to return to work immediately and unconditionally. The Union also requested on that day that the Company supply it with certain information regarding employees who were presently filling production and nonproduction jobs, all job openings as of February 7, and other related matters. The Company responded to both requests on February 10, acknowledging termination of the strike but refusing to furnish the information because “We can perceive no legal duty to grant your request at this time,” and refusing to reinstate striking employees on the ground that more information was needed. Specifically, the Company indicated, its belief that some striking employees had obtained work elsewhere, others had moved out of the area, and still others did not desire to return to work, thereby raising questions concerning the Company’s reinstatement responsibilities. The Company then requested that the Union furnish it with a list of previous strikers who had not made application for reinstatement individually or who desired to preserve their rights with the Company. The letter concluded by stating:

If we do not receive such a list within a reasonable time, we will assume that none other than those who have made individual application desire to preserve such rights as they may have at Cavalier.

By letter dated February 18, 1970, the Company informed the employees who had been on strike that they must notify the Company individually of their willingness to return to work in order to be reinstated. Thereafter some employees who complied with this request were reinstated. The Union renewed its request of February 7 by letter dated February 27, and the Company replied on March 2 that such an “unconditional offer to return to work on behalf of striking employees is quite obviously too broad and inaccurate to be relied upon.”

II. Conclusions by the NLRB

To this point we have outlined the findings of the Trial Examiner which are of a purely factual nature and which were adopted by the Board. 192 N.L.R.B. No. 37 (1970). Not only are these findings supported by substantial evidence on the record as a whole, 29 U.S.C. § 160(e) and (f) (1970) and Administrative Procedure Act § 10(e), 5 U.S.C. §§ 701 and 706 (1970), but they are essentially uncontested by the parties for purposes of this appeal. We proceed now to consideration of whether the conclusions of law by the Board are warranted by the evidence. In agreement with the Trial Examiner, the Board found that the Company violated § 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970), by refusing to bargain with the Company and furnish it with information. It also found that refusal to pay accrued vacation pay was a violation of § 8(a)(3) and (1) of the Act as was the discharge of employees Fletcher, Brewer, Snyder, Creek and Tarpley. Contrary to the Trial Examiner, the Board found no violation by the Company in suspending employees Fletcher, Brewer and Snyder pending investigation of the incident in question, but it did find a violation of § 8(a)(3) and (1) in the discharge of Rollins, the alleged participant in a secondary boycott. Finally, the Board and Trial Examiner were in agreement that the Company further violated § 8(a)(3) and (1) by unreasonably delaying the reinstatement of unfair labor practice strikers following their unconditional offer to return to work on February 7, 1970. The Board, however, modified the Trial Examiner’s finding that the strike was converted to an unfair labor practice strike on July 29, 1969, substituting therefor December 4, 1969. The Board entered an order requiring certain affirmative and negative acts by the Company directed at effectuating its holding.

III. Conclusions

A. Withholding Vacation Pay

The Company’s challenge to the Board’s finding that it violated § 8(a)(3) and (1) of the Act is really twofold, and we shall consider those arguments in order. It first contends that the vacation pay had not accrued prior to its payment on October 30 and that its refusal to pay therefore cannot serve as a basis for violation of the Act. The 1966 contract provided, as did its predecessors, for one or two weeks of vacation pay to employees who had completed at least one or five years of continuous service, respectively. The relevant portions of the agreement follow:

A first-year employee will receive his vacation pay upon completion of his 12 months of continuous service or at the vacation period, whichever comes last. His vacation pay thereafter will be issued to him at the time his vacation is taken, or on the first pay period in July if no vacation is scheduled for that year.
The vacation period will be set by the Company to fall between June 15th and September 1st. Unless business reasons dictate a specific period the preference of the employees will be followed in choosing the vacation dates.
The dates chosen will be announced not later than May 1st.
Vacations are not cumulative and must be taken, or paid for, during each calendar year.

It is beyond dispute that vacation pay would accrue and become due and payable in lieu of actual vacation. The question presented is whether it accrued prior to October 30, the date when the sums were finally paid, thereby rendering the Company’s refusal to pay after successive Union demands potentially violative of § 8(a)(3) and (1). Under any one of several interpretations the answer is indisputably yes, although for reasons which will become apparent it is unnecessary for us to determine the precise date. The contract unequivocally limits the dates within which the vacation period must fall- — between June 15 and September 1. Thus, once September 1 passed there can be no doubt that the amounts were due and payable. Moreover, since the vacation period of two weeks must fall rather than begin between those dates, the deadline must be considered to fall sometime in mid-August. Finally, we feel it is likely that the pay accrued at an even earlier date. The Company had no authority to reschedule vacations after the May 1 deadline specified in the contract. When it unilaterally made the decision to do so on about July 28 it was in the midst of an economic strike that may well have been anticipated to last well beyond mid-August. The letter itself arguably may have indicated the Company’s awareness that a vacation could not be scheduled within the time limits prescribed in the collective-bargaining agreement. Thus, the employees’ rights to vacation pay in lieu of actual vacation did accrue prior to October 30.

The Company next urges that proof of antiunion motive is essential to a violation and that it did not harbor such a motive. The Trial Examiner found that the Company’s action of withholding accrued vacation pay had, indeed, been motivated by antiunion purposes. The Labor Board, while not in disagreement with this finding, held that it was unnecessary to reach the issue of motive in light of NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L. Ed.2d 1027 (1967). We feel that clarification is merited. In Great Dane Trailers, the respondent company, faced with an economic strike, refused to pay accrued vacation pay to striking employees while announcing its intention to award such benefits to working employees (which it did). A hearing before a trial examiner resulted in a finding that the company’s action constituted discrimination in the terms and conditions of employment which would discourage union membership as well as unlawfully interfere with a protected activity, thereby violating § 8(a)(3) and (1). The Labor Board adopted the conclusions but was reversed by the Court of Appeals on the ground that the company may have had any of a number of legitimate business purposes for such conduct. In the process of reversing and remanding with directions to enforce the Board’s order, the Supreme Court clarified the appropriate considerations for evaluating an alleged violation of § 8(a) (3):

[S]everal principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer’s discriminatory conduct was “inherently destructive” of important employee rights, no proof of anti-union motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is “comparatively slight,” an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate arid substantial business justifications for the conduct.

388 U.S. at 34, 87 S.Ct. at 1798. The Company mistakenly argues that since the conduct must be “discriminatory” before it can be “inherently destructive,” and since the Company refused to pay accrued vacation benefits nondiscriminatorily to all its employees, then the “comparatively slight” test enunciated in Great Dane Trailers must be applied. The Company then sets forth what it considers to be a “substantial business justification” for its conduct and contends that the Union has failed to successfully refute this evidence with proof of antiunion animus.

The Company misconstrues § 8(a) (3). That section requires “discrimination” as a prerequisite to a violation whether the conduct be “inherently destructive” or “comparatively slight,” a point which is absolutely clear in Great Dane Trailers. Not only does the requirement of discrimination not afford a basis for distinguishing between the two standards, but it also fails to afford a basis for arguing that § 8(a)(3) is inapplicable to the facts of this case. The Company argues that all cases relied upon by the NLRB for authority involve a course of conduct which discriminates between strikers and nonstrikers, citing, inter alia, Flambeau Plastics Corp. v. NLRB, 401 F.2d 128, 135 (7th Cir. 1969), cert. denied, 393 U.S. 1019, 89 S.Ct. 625, 21 L.Ed.2d 563 (1969), and NLRB v. Frick Co., 397 F.2d 956, 961-963 (3d Cir. 1968). It then argues that it did not “discriminate” since it was completely impartial between strikers and nonstrikers. While we agree that the courts above were concerned with unequal treatment of strikers and non-strikers, we do not consider that to be dispositive. A practice applied uniformly to all employees may be discriminatory and violate the Act just as a discriminatory practice may be held to be perfectly innocuous. Compare American Ship Building Co. v. NLRB, 380 U.S. 300, 312-313, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965) and United Steelworkers v. NLRB, 405 F.2d 1373 (D.C.Cir.1968) with NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). Conduct by an employer which discourages a union activity protected by § 7 may also discourage and discriminate against membership in a labor organization.

In the present case the Employer conditioned payment of accrued vacation compensation upon cessation of a union-instigated economic strike. It is unnecessary for us to tread the uneasy path between “inherently destructive” and “comparatively slight” discrimination since the Company failed to prove a substantial business justification for its conduct. See Great Dane Trailers, supra, and NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967). The Company introduced uncontradicted evidence illustrating financial problems which had recently befallen it. However, no testimony was introduced suggesting that the Company was unable to meet the financial burden of the vacation debt. In its simplist form the Company really argues that both sides anticipated economic hardship during the strike and that it was more appropriate for the Union than for the Company to absorb the loss of vacation funds even though the employees were lawfully entitled to them.

B. Suspension and Discharge of Employees

With respect to employees Fletcher, Brewer and Snyder, the Trial Examiner found that their purpose in following the automobile driven by Smith was to harass and coerce the riders in that car not to report to work, although he found no acts of physical interference whatsoever between the two vehicles. While the death of Smith was indeed unfortunate, an expert witness was totally unable to attribute it to the car following incident. The Trial Examiner noted that the Company had previously engaged in an unfair labor practice during the course of the strike by its refusal to pay accrued vacation pay, an action which “had an adverse effect . not only upon the outcome of the strike and the morale of the strikers, but against the very pocketbooks of the strikers themselves.” Applying the doctrine established in Local 833, UAW v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699 (1962), cert. denied, 382 U.S. 836, 86 S.Ct. 82, 15 L.Ed.2d 79 (1965), and NLRB v. Thayer Co., 213 F.2d 748 (1st Cir. 1954), cert. denied, 348 U.S. 883, 75 S.Ct. 123, 99 L.Ed. 694 (1954), he found that the Company had violated § 8(a)(3) and (1). The Board agreed, stating that such conduct, protected by § 7, “while not to be condoned, was not so egregious as to render them unfit for further employment, and that their discharge after the strike was therefore violative of Section 8(a)(3) and (1).”

A similar conclusion was reached with respect to employees Creek and Tarpley, who had shouted obscenities and engaged in other misconduct on the picket line.

[N]ot every incident occurring on the picket line, though harmful to a totally innocent employer, justifies refusal to reemploy a picketing employee for acts that exceed the bounds of routine picketing. Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.

Montgomery Ward & Co. v. NLRB, 374 F.2d 606, 608 (10th Cir. 1967). See also Terry Coach Industries, Inc., 166 N.L.R.B. 560 (1967), enforced, 411 F.2d 612 (9th Cir. 1969); NLRB v. Buitoni Food Corp., 298 F.2d 169 (3d Cir. 1962); NLRB v. Efco Manufacturing, Inc., 227 F.2d 675 (1st Cir. 1955), cert. denied, 350 U.S. 1007, 76 S.Ct. 651, 100 L.Ed. 869 (1955); Stewart Hog Ring Co., Inc., 131 N.L.R.B. 310 (1961); Hartmann Luggage Co., 183 N.L.R.B. No. 128 (1970), enforced as modified, 453 F.2d 178 (6th Cir. 1971); and Schott v. Metal Products Co., 128 N.L.R.B. 415 (1960). Finally, while the Trial Examiner found that employee Rollins did engage in a leadership role in conduct that ultimately extended the strike beyond the domain of his immediate employer to one entity doing business with the employer, he held that this was not a boycott within the meaning of § 8(b)(4)(i)(ii)(A) and (B) of the Act. Nevertheless he found that Rollins’ discharge was for cause, a conclusion which the Board rejected:

In all the circumstances, we find that Rollins’ conduct . . . while not to be condoned, was not so egregious as to render Rollins unfit for further employment ....

While it is true that the Board offers little support for its conclusion, we note that not present here are any remarks or materials disparaging the quality of products of the employer which might bring the case within the rationale of NLRB v. Local 1229, IBEW, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953). Nor was the handbill distributed at Union headquarters attributed to Rollins. Furthermore, the record fails to show whether any of the vending machines manufactured by the Company after the strike began were used by the Chattanooga Coca-Cola Bottling Company, nor does it show whether Rollins participated in the only march which directly involved a bottling plant.

Clearly some types of impulsive behavior must have been within the contemplation of Congress when it provided for the right to strike. See NLRB v. Wichita Television Corp., Inc., 277 F.2d 579, 585 (10th Cir. 1960), cert. denied, 364 U.S. 871, 81 S.Ct. 113, 5 L.Ed.2d 93 (1960); NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). It is not unusual to become involved, as we are today, in balancing the employees’ right to organize and bargain collectively against the employer’s right to maintain order and respect and the public’s right to safety. See, e. g., Local 833, UAW, supra, 300 F.2d at 703 n. 10 and NLRB v. Thor Power Tool Co., supra, 351 F.2d at 58. This involves consideration of such opaque factors, many of which depend upon a sifting of conflicting testimony in an attempt to envision the totality of circumstances, as whether the misconduct “is so violent or of such serious character as to render the employee unfit for further service,” NLRB v. Illinois Tool Works, 153 F.2d 811, 816 (7th Cir. 1946); whether such misconduct constitutes “a trivial rough incident” or occurs in “a moment of animal exuberance,” Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293, 61 S.Ct. 552, 85 L.Ed. 836 (1941); whether the employer’s unlawful acts were serious or provocative, Local 833, UAW, supra, 300 F.2d at 703; and whether reinstatement would effectuate the policies of the Act, id. at 703. As the court in NLRB v. Thor Power Tool Co., supra, 351 F.2d at 587, aptly summarized:

Initially, the responsibility to draw the line between these conflicting rights rests with the Board, and its determination, unless illogical or arbitrary, ought not be disturbed.

We find that the Labor Board’s conclusions in these matters were neither arbitrary nor illogical and, with one exception, decline to comment further.

The one particularly troublesome matter involves the suspension two days after the car following incident of employees Fletcher, Snyder and Brewer “pending investigation for misconduct.” While the suspension letter indicated no specific reason for such action, the Company concedes that it was largely meant “to advise the Company’s other employees . . . that misconduct resulting in death would not be tolerated . ” The fact that the re-' suiting death was apparently the primary reason for suspension leads us directly to the case of NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964), In Burnup & Sims it was incorrectly brought to the employer’s attention that two employees who were attempting to organize the respondent company’s plant had threatened to dynamite the plant if they did not receive collective bargaining authorization. They were forthwith discharged. After finding that the employees were engaged in an activity protected by § 7, the Court held:

Over and again the Board has ruled that § 8(a)(1) is violated if an employee is discharged for misconduct arising out of a protected activity, despite the employer’s good faith, when it is shown that the misconduct never occurred. .
That rule seems to us to be in conformity with the policy behind § 8(a)(1). Otherwise the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees.

379 U.S. at 23, 85 S.Ct. at 172. Here the employees in question were alleged to have engaged in what may be characterized as two types of misconduct: First, merely following the Smith automobile; second, and more seriously, engaging in activity which “result[ed] in death.” It was for the latter reason that they were suspended, yet it later became clear that Smith’s death could not be attributed to these employees. As in Burnup & Sims the Company had acted under a good faith mistake of fact, and that case therefore controls.

The Company urges us to distinguish Burnup & Sims on the ground that the employees there, unlike here, were engaged in activities protected by § 7. Compare NLRB v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 865-866 (5th Cir. 1966) with NLRB v. Big Three Welding Equipment Co., 359 F.2d 77, 84 (5th Cir. 1966). While some confusion is understandable in light of the Board’s order, its conclusion is nevertheless deducible and contrary to the Company’s contention. The trial examiner apparently concluded that the three employees were not engaged in protected activity, a finding which was rejected by the Board. Although the Board addressed only the issue of whether § 8(a)(3) and (1) had been violated by the discharge of the employees when it held that the discharge was “in contravention of their rights under Section 7,” it could not in the next breath consistently conclude that the employees were disassociated from § 7 rights for purposes of the suspension. Having concluded that Fletcher, Brewer and Snyder were not disassociated from § 7 activities during the car following incident, we find the outcome to be controlled by the rational espoused in Burnup & Sims —i. e. the suspension of the three employees pending investigation was a violation of § 8(a) (1) of the Act.

We similarly reject the argument that the present case is distinguishable from Burnup & Sims in that the Board here found that the employees were engaged in misconduct, but not misconduct so egregious as to render them unfit for further employment. While we do not hold that all misconduct insufficient for dismissal is prima facie insufficient for suspension under the Burnup & Sims rationale we do note that the only other “misconduct” in which the three participated was that of following an automobile at 30 to 40 feet with no attempt to interfere or communicate. Thus, even assuming that this was the “misconduct” for which they were suspended rather than the fact that an employee coincidentally met his death, we find it insufficient to merit suspension for cause.

C. Refusal of the Company to Bargain and Events that Followed

The Company refused to comply with the Union’s December 2 request for further bargaining, stating as grounds therefor that a decertification petition was then pending with the National Labor Relations Board. Indeed, such a petition had been filed by an unknown number of dissident employees on December 1, although it was immediately suspended by the Board pending the outcome of the unfair labor practice proceeding.

The Union was originally certified in 1955 and recertified in 1962 as well as by subsequent execution of a series of collective-bargaining agreements. After its first year of certification a rebuttable presumption of the union’s majority status exists. Unless the employer can prove that the union in fact no longer enjoys a majority, it can only overcome the presumption upon a showing of “sufficient evidence to cast serious doubt on the union’s continued majority status.” Stoner Rubber Co., Inc., 123 N.L.R.B. 1440, 1445 (1959). The pertinent standard has been interpreted to require both a reasonable basis in fact for the doubt and good faith by the employer. See, e. g., Lodges 1746 and 743, IMW v. NLRB, 135 U.S.App.D.C. 53, 416 F.2d 809, 812 (1969), cert. denied, 396 U.S. 1058, 90 S.Ct. 751, 24 L.Ed.2d 752 (1969); NLRB v. Frick Co., 423 F.2d 1327, 1330 (3d Cir. 1970). The naked showing that a decertification petition has been filed, with no indication of the number of signatories or other related matters, is an insufficient basis in fact for refusing to bargain since it establishes no more than that the petition was supported by the requisite 30% “showing of interest.” Wabana, Inc., 146 N.L.R.B. 1162, 1171 (1964). In the present case the Employer attempted to bolster this evidence by testifying that on December 4, the date on which it refused to bargain, more persons were crossing the picket line to work than were striking. It has been held time and again, however, that an employee’s return to work during a strike does not provide a reasonable basis for presuming that he has repudiated the union as his bargaining representative. See, e. g., NLRB v. Easton Packing Co., 487 F.2d 811, 814 (3d Cir. 1971); NLRB v. Frick Co., supra, 423 F.2d at 1333-34; and NLRB v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1091 (8th Cir. 1969). Compare Terrell Machine Co. v. NLRB, 427 F.2d 1088, 1090 (4th Cir. 1970), cert. denied, 398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970). Absent supporting evidence it may mean no more than that he was forced to return to work for financial reasons or that he did not support the strike in question. See, e. g., NLRB v. Frick Co., supra, 423 F.2d at 1333. Finally, the Employer’s testimony to the effect that he had personal knowledge of “overwhelming sentiment” against the Union, with no indication of the number or identity of workers expressing such views nor any other corroboration, is no more than a “self-serving assertion,” NLRB v. Little Rock Downtowner, Inc., supra, 414 F.2d at 1091, which adds nothing to the preceding evidence. While we must consider the totality of such evidence in determining whether the employer had a reasonably grounded good faith doubt as to the Union’s majority status, we note that on two previous occasions within the course of the strike the Employer had engaged in unfair labor practices: First, by withholding accrued vacation pay; and second, by suspending employees Fletcher, Brewer and Snyder. As found by the Trial Examiner and supported by the evidence, these actions contributed to the loss of Union support and, when considered with the foregoing, preclude any possibility that the Company maintained a good faith doubt as to the Union’s continued majority status. See NLRB v. A. W. Thompson, Inc., 449 F.2d 1333, 1336 (5th Cir. 1971), cert. denied, 405 U.S. 1065, 92 S.Ct. 1497, 31 L.Ed.2d 795 (1972). We note additionally that refusal to furnish the Union with information essential to its bargaining obligation is yet another indication of bad faith. United Steelworkers v. NLRB, 132 U.S.App.D.C. 103, 405 F.2d 1373 (1968). We think the Board’s conclusion that the Company violated § 8(a)(5) and (1) of the Act by refusing to bargain on and after December 4 is amply supported by the record.

D. Conversion into an Unfair Labor Practice Strike

The Board found that by refusing to bargain with the Union on December 4, 1969, in violation of § 8(a)(5) and (1) of the Act the Employer prolonged the strike and consequently it converted as of that date into an unfair labor practice strike. It is undisputed that the strike was economic in nature at its outset. The Union takes issue with the standard applied by the Board in determining which of several unfair labor practices converted the strike. The Union, relying upon an isolated passage from Teamsters Local 992 v. NLRB, 138 U.S.App.D.C. 312 427 F.2d 582 (1970), contends that a strike is converted if the unfair labor practice in question merely “aggravates” rather than “prolongs” it. The issue involved in Teamsters Local 992 was whether substantial evidence supported the Board’s finding that a unilateral decision by the employer to increase wages by fourteen cents per hour converted an economic strike into an unfair labor practice strike. While it is true that the court referred to “aggravate” and “prolong” disjunctively, reliance upon such usage is misplaced as the following passage indicates :

“[W]here a strike which initially involved no unfair labor practice is prolonged or aggravated by an employer’s unfair labor practice, the same rule applies as where the strike is the result of an unfair labor practice, and the employer is bound to reinstate all strikers . . . . ”
Once it is shown that an employer’s unfair labor practice is a significant factor in a strike, the burden is “on the Company to show that the strike would have continued even if it had [not committed its unfair labor practice] .”

427 F.2d at 587. Thus, it is abundantly clear that the court in Local 992 was concerned with the effect of such practices on the longevity of the strike and not merely with whether the unfair labor practices aggravated the strike. This is consistent with the great weight of authority.

It has been uniformly ruled and is now well settled that to entitle employees to reinstatement because of unfair [labor] practice of the employer, after a strike has been declared, it must appear that the practice prolonged the strike; and this necessarily follows from the fact that only then can it be that any part of the unemployment for which reinstatement is the remedy has resulted from a violation of the Act.

NLRB v. James Thompson & Co., 208 F.2d 743, 749 (2d Cir. 1953) (footnote omitted). Accord, Electrical Workers Local 613 v. NLRB, 328 F.2d 723, 726 (3d Cir. 1964); Drivers Local 662 v. NLRB, 302 F.2d 908, 911 (D.C.Cir. 1962), cert. denied, 371 U.S. 827, 83 S.Ct. 48, 9 L.Ed.2d 65 (1962); NLRB v. Jackson Press, Inc., 201 F.2d 541, 546 (7th Cir. 1953). Having concluded that the Board applied the appropriate standard, we find the Board’s determination that the strike was, in fact, prolonged by the refusal to bargain to be supported by substantial evidence on the record as a whole. NLRB v. Frick Co., 397 F.2d 956, 964 (3d Cir. 1968). We therefore conclude that the order of the Board should be modified with regard to the suspension of employees Fletcher, Brewer and Snyder in accordance with this opinion, and so modified we grant the Board’s application for enforcement of its order.

      . 29 U.S.C. § 151 et seq. (1970).

      . The decision and order of the three-member panel of the National Labor Relations Board, empanelled pursuant to § 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b) (1970), is reported at 192 N.L.R.B. No. 37 (1970).

      . During the course of the proceedings before the Labor Board, Cavalier Division of Seeburg Corporation ceased to exist and Cavalier Corporation, which had previously been a sales branch, assumed its obligations and operations. There is no issue raised as to successorship and for purposes of this appeal they are treated as one and the same party.

      . Both parties concede that the impediment to negotiations was a combination of the Company’s recent financial problems and the effect of inflation on the employees’ real wages.

      . The Company’s practice was apparently to close down the entire plant for the two-week vacation period so that all employees, save a skeleton maintenance crew, would be on vacation at the same time.

      . With regard to employee Fletcher, see note 19, infra.

      . While Rollins was a past president of Local 289 and was still considered to be a leader by many union members, he apparently no longer held any union office.

      . In fact the Company engaged in the manufacture of soft drink vending machines which are purchased by the various Coca-Cola bottling companies throughout the United States.

      . The letter refers to a petition for decertification filed by some dissident union members which raised certain questions concerning representation. The petition was immediately suspended pending the outcome of the present proceedings before the NLRB.

      . 29 U.S.C. § 158(a) (1970) provides in relevant part:
      (a) It shall be an unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.

      . 29 U.S.C. § 158(a)(3) (1971) provides in relevant part:
      (a) It shall be an unfair labor practice for an employer—
      (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ....

      . Most significantly, the Company was ordered to cease and desist from those activities which were held to be violations and to offer reinstatement to the six discharged employees at the same or substantially equivalent positions with certain rights to back pay; to do the same for all employees who were on strike after December 4, 1969, on whose behalf an unconditional request for reinstatement was made by the Union; to make such employees whole for any loss of earnings suffered from February 12, 1970; and, upon request, to bargain collectively with Local 289 as the exclusive bargaining representative of the employees and make available to it certain information.

      . The relevant clause is as follows:
      Article 9, Section 1. An employee will be entitled to 1 week of vacation pay each year upon completion of 1 year of continuous service and 2 weeks of vacation pay for each year upon completion of 5 years of continuous service provided he has worked 1040 hours in the twelve-month period prior to the vacation date and is in the Company’s employ at the time the vacation period ' begins.

      . See also § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1970); and NLRB v. C & C Plywood Corp., 385 U.S. 421, 427, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967).

      . The Company asserts as authority for its interpretation of the clauses in question a 1962 strike of 5 weeks duration wherein the Company rescheduled vacations. Not only was that situation dissimilar from the present one in several respects, but we also feel it is of little value since the terms of the 1966 contract are clear and unequivocal in this respect and since we do not consider one dissimilar situation occurring seven years prior to this dispute to establish “past practice.” The further argument that the Union somehow acquiesced in this interpretation prospectively by failing to bring an unfair labor practice charge in 1962 is devoid of any merit.

      . See also Wonder State Manufacturing Co. v. NLRB, 331 F.2d 737, 738 (6th Cir. 1964); Majestic Molded Products, Inc. v. NLRB, 330 F.2d 603, 606 (2d Cir. 1964); NLRB v. Frick Co., 397 F.2d 956, 962-963 (3d Cir. 1968); and Texaco, Inc., 179 N.L.R.B. 989, 993 (1969). See generally Christensen and Svahoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality, 77 Yale L.J. 1269 (1968).

      . Here, when the vacation pay demands were first made and refused, virtually all of the plant personnel were out in support of the strike and no serious effort was made to keep the plant in operation. The refusal to pay, as found by the Trial Examiner and not refuted by the Board, was diseriminatorily motivated. The fact that it was ultimately paid and paid to both strikers and nonstrikers does not remove the discriminatory taint — it was paid at a time when, according to the testimony of the Company, more individuals were working than striking and the plant was substantially operational once again. At that point the Company was obviously less concerned with the strikers than with satisfying and retaining the services of former strikers.

      . Indeed, even if the Company had succeeded in such an assertion it would still be held to have violated § 8(a) (3) and (1) on the basis of the Trial Examiner’s conclusion, unrefuted by the Board’s holding and supported by substantial evidence on the record as a whole, that the Company possessed the requisite antiunion motive to overcome a showing of substantial business justification. Moreover, even ' were we to accept the Company’s logic and find no “discrimination” within the meaning of § 8(a)(3), the Trial Examiner’s findings with respect to motive would support an independent violation of § 8(a)(1). See, e. g., NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964).

      . Actually, Fletcher was discharged by letter dated April 14, 1970, for certain picture-taking activities on the picket line. This, of course, makes it quite impossible for him to have been discharged again on August 10, 1970, for participation in the car following incident, absent an intervening reinstatement. The Board, affirming the Trial Examiner, held that the initial discharge of Fletcher was violativeof § 8 (a) (3) and (1) of the Act since it was not the type of conduct which warrants refusal to reinstate, a conclusion which is not challenged in this appeal. The Company does contend, however, that had it not suspended Fletcher for the picture-taking activities, it would have suspended him for the car following activities. We are not permitted to review hypothetical issues and hence are forced to limit our holding to the discharge of Brewer and Snyder, although we do note that absent circumstances which distinguish Fletcher’s conduct from that of the former two individuals, we cannot comprehend how such a discharge could be considered to be innocuous.

      . Rollins denied participation in that march.

      . Brief for Cavalier Division of Seeburg Corp., and Cavalier Corp. at 36.

      . Having found that the Company was obligated to bargain with the Union, we similarly hold, in agreement with the Board and the Trial Examiner, that failure to furnish to the Union, upon request, information necessary to fulfill its bargaining obligation resulted in an additional violation of § 8(a)(5) and (1). See Kayser-Roth Hosiery Co., Inc., v. NLRB, 447 F.2d 396 (6th Cir. 1971).

      . The issue, of course, is of significance to the parties in that unfair labor practice strikers are entitled to reinstatement regardless of whether the employer has replaced them, Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S.Ct. 349, 100 L.Ed. 309 (1956), while economic strikers are entitled to reinstatement only if they have not been permanently replaced, NLRB v. MacKay Co., 304 U.S. 333, 346, 58 S.Ct. 904, 82 L.Ed. 1381 (1938).

      . The Board, affirming the Trial Examiner, also found that the employer violated § 8(a) (3) and (1) by repeatedly refusing to accept the Union’s unconditional offer on behalf of its employees to return to work, but instead insisting upon information to which it had no legal right. We affirm for reasons clearly set out in our recent decision of Retail Store Union v. NLRB, 466 F.2d 380, 385 (D.C.Cir. 1972).


author: PER CURIAM.

text:
    UNITED STATES of America v. Wilbur JONES, Appellant.
    No. 72-1479.
    United States Court of Appeals, District of Columbia Circuit.
    Nov. 28, 1972.
    Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.
   ORDER

PER CURIAM.

On consideration of appellant’s motion for leave to file a non-conforming pleading, it is

Ordered by the Court that the motion is granted and the Clerk is directed to file appellant’s lodged motion for release on non-financial conditions pending appeal, and appellee's lodged opposition thereto. On consideration of the foregoing, it is

Further ordered by the Court that appellant’s aforesaid motion for release on non-financial conditions is denied.

Chief Judge BAZELON would grant the motion for release on non-financial conditions pending appeal and may file an opinion at a later date.


text:
    UNITED STATES of America, v. Claude L. SMITH, Appellant. UNITED STATES of America, v. James P. JARVIS, Appellant.
    Nos. 72-1593, 72-1600.
    United States Court of Appeals, District of Columbia Circuit.
    Nov. 21, 1972.
    Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.
   ORDER

PER CURIAM.

On consideration of appellant’s (Jarvis) motion to amend application for bail pending appeal, of appellants’ (Smith and Jarvis) motions for bail pending appeal, and of the opposition filed with respect thereto, it is

Ordered by the Court that appellant’s (Jarvis) motion to amend application for bail pending appeal is granted, and, it is Further ordered by the Court that appellants’ (Smith and Jarvis) motions for bail pending appeal are denied.

Chief Judge BAZELON dissents from the foregoing order and may file an opinion at a later date.


author: BAZELON, Chief Judge,

text:
    UNITED STATES of America v. Wilbur JONES, Appellant. UNITED STATES of America v. Claude L. SMITH, Appellant. UNITED STATES of America v. James P. JARVIS, Appellant.
    Nos. 72-1479, 72-1593 and 72-1600.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 18, 1973.
    Messrs. Robert Gray and Nathaniel P. Breed, Jr., were on the pleading for appellant Jones.
    Mr. Aubrey M. Daniel, III, Washington, D. C., was on the pleading for appellants Smith and Jarvis.
    Messrs. Harold H. Titus, Jr., U. S. Atty., John A. Terry and James W. Diehm, Asst. U. S. Attys., were on the pleading for appellee.
   BAZELON, Chief Judge,

dissenting:

Each of these defendants was convicted of a D.C.Code offense, and each moved for release pending appeal under D.C.Code § 23-1325(c). The trial judges denied the motions; my colleagues uphold the denials. I recognize that we are required to affirm if the trial judge’s holding is “supported by the proceedings below.” In these cases however, I do not find the denials to be properly supported; in my view the trial judges incorrectly applied the statutory formula governing release.

I.

Prior to the passage of the D.C.Code bail revisions, release for both D.C.Code and U.S.Code offenders was governed by the federal Bail Reform Act of 1966, which established a preference for release pending appeal. In passing the D. C. Court Reform and Criminal Procedure Act of 1970, Congress made clear its intention to reverse that preference; the result was D.C.Code § 23-1325, which directed the courts to take a considerably harsher stance in ruling on motions for release pending appeal.

Nonetheless, the statute does permit release in certain circumstances; it sets forth two factors relevant to the question of release:

1) The likelihood that the appellant will flee or pose a danger to persons or property; and
2) The likelihood of reversal on appeal.

In each of these cases, the trial judge considered only one of the two factors. In the Smith and Jarvis cases, the judge considered only the first factor; since he was unable to find that the defendants were not likely to flee or pose a danger, the judge did not discuss the substantiality of the appeal. Jones’ motion represents the converse; there the trial judge could not find a likelihood of reversal, and so denied release with no consideration of the risk of flight or danger. I believe that both judges erred. For the reasons set forth in Parts II and III of this opinion, I think the statute requires consideration of both likelihood of flight or danger and the substantiality of the appeal in every case.

II.

Failure to analyze the substantiality of the appeal — as occurred in the Smith and Jarvis cases — is problematic for two reasons. First, it assumes that the two statutory factors bearing on release are independent of each other. In fact, they are not independent. The likelihood that a convicted person will flee or pose a danger to persons or property is often directly related to the validity of his conviction. Thus it is normally impossible to make an adequate determination as to the risk of flight or danger without paying some attention to the strength of the appeal.

The substantiality of the appeal should be a particularly important consideration when the issues raised on appeal directly concern whether or not the defendant committed the offense for which he was convicted. The case of Smith, one of the movants here, is illustrative. Smith is appealing his conviction in the murder of Elroy Williams. This murder appears to have been a significant factor in the trial judge’s determination as to Smith’s dangerousness. But Smith’s appeal raises a doubt as to whether he committed murder at all. Since the judge failed to consider the appeal in ruling on the motion for release, he ignored factors which challenge an important premise of his decision.

Second, consideration of the appeal is mandated by the basic rationale for permitting release on appeal — the concern that a person may be confined under an erroneous judgment while the appeal is pending. Because of this concern, judges should be more receptive to a motion for release where the movant raises substantial doubt about the validity of his conviction. “[W]here compelling grounds for reversal are to be argued, this court has been especially reluctant to deny release pending appeal.”

The D.C.Code provisions do not preclude such consideration. The legislative history indicates that the preference for detention in the code stems from the presumption that a conviction is “correct in law” and that a person who has been sentenced to jail is “dangerous.” Where the appeal raises substantial doubt about the conviction, these presumptions, and the preference for detention, are diminished. “There may be an offsetting consideration where the appellate court can discern that the papers demonstrate . . . that [appellant’s] claims are so substantial as to undercut any presumption that might attach to the verdict and judgment as indicators that he is guilty of the violence charged in the case at bar.” Banks v. United States, 134 U.S.App.D.C. 254, 259, 414 F.2d 1150, 1155 (1969) (Leventhal, J., dissenting.)

Obviously the trial judge cannot make this kind of analysis if he fails to review the substantiality of the appeal.

III.

The problem posed by the trial judge’s decision on Jones’ motion — analysis of the substantiality of the appeal, but failure to consider the likelihood of flight or danger — is that such a failure provides an incomplete record for the appeltate court. Under D.C.Code § 23-1325 (d), this court must make a de novo finding as to the likelihood of reversal in reviewing motions for release. If we should find the appeal does raise a substantial question likely to result in reversal, we will need some information on the risk of flight or danger in order to rule on the motion for release. Where the trial judge makes no finding on this point, remand may be necessary. Such action is inefficient, unnecessary, and, as I said recently in United States v. Stanley, an impermissible infringement on the movant’s personal freedom.

IV.

For these reasons I believe proper consideration of motions for release under D.C.Code § 23-1325(c) requires analysis of both statutory factors in every case. Applying this analysis to the three motions at hand, I would dispose of them as follows:

Smith — Claude L. Smith was convicted of second degree murder and carrying a deadly weapon. The convictions arose out of an argument on July 3, 1971, in which Smith shot and killed Elroy Williams, using a gun he had obtained shortly before from James P. Jarvis.

Smith's defense at trial was self-defense; he maintained that he had shot Williams only after Williams lunged at him with a razor. The closest eyewitnesses on this crucial issue were two friends of Smith, Jerome Jackson and Frank Twitty. Both had accompanied Smith to the fatal confrontation with Williams. However, neither was charged by the government or even threatened with charges in connection with the shooting during the nine months between the incident and the trial.

At the trial, Jackson testified for the government that Williams did not have a razor when he was shot. Twitty was apparently prepared to testify that Williams did. Before Twitty took the stand, however, the prosecutor met him outside the courtroom and threatened him with prosecution if he testified for the defense. As a result, Twitty exercised his Fifth Amendment privilege and did not testify.

The prosecutor maintained that his talk with Twitty was a manifestation of his duty “as an officer of this court” to warn the witness of a potential prosecution. This is a questionable proposition. The language used was apparently more of a threat than a warning; and the prosecutor’s zeal to do his duty did not extend to Jackson, who was apparently given no “warning” before testifying for the prosecution. In effect, the prosecutor made a selective grant of immunity which preserved a significant piece of prosecution testimony but obstructed the defense’s exculpatory proof.

“The right to offer the testimony of witnesses . . . is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). The prosecutor’s interference with that right raises a substantial question as to whether he has carried out the duties imposed on him under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Since we have not yet received the government’s brief or heard oral argument in this case, I cannot say with certainty that the prosecutor’s conduct compels a reversal. However, the Fourth and Ninth circuits have held, in somewhat analogous circumstances, that prosecutorial action making witnesses unavailable to the defense constitutes a denial of due process of law. This court has explicitly recognized the difficult problem raised by a selective grant of immunity such as that given here. Thus I believe there is a sufficient question on appeal to meet the statutory requirement for release.

As to the likelihood of flight or danger, I note that Smith has extensive family ties in the community; he has been employed by his father, and will continue to be if released; he has a good record of appearance during previous periods of release; and none of his convictions pri- or to this one involved a “dangerous crime” or “crime of violence” under D.C.Code § 23-1331(3) and (4).

In light of these factors, and the likelihood of reversal on appeal, and recognizing that the questions raised on appeal tend, in Judge Leventhal’s phrase, to “undercut any presumption that might attach to the verdict and judgment as indicators that he is guilty of the violence charged in the case at bar.” I think Smith’s release on appropriate conditions is justified under the statute.

Jarvis — James P. Jarvis, Smith’s co-defendant, was convicted of second degree murder and carrying a deadly weapon. The government’s theory was that Jarvis aided and abetted Smith in the murder of Williams. Obviously the prosecutor’s obstruction of the defense’s case raises the same likelihood of reversal in Jarvis’ appeal that it raises in Smith’s.

Although Jarvis has a number of disorderly conduct and other misdemeanor convictions, there is no indication in his record that he would pose a danger to the community if released. Prior to his conviction he ran two businesses in the District of Columbia. His attorney has made impressive arrangements for Jarvis to live and work with his step-father in a stable atmosphere pending the appeal. This evidence, together with the doubt as to Jarvis’ guilt of the present charges, creates a convincing case that Jarvis is not likely to flee or pose a danger if he is released under appropriate conditions.

Jones — Wilbur Jones was convicted of manslaughter in the shooting of Garland Shorter. On April 14, 1971, Jones saw Shorter and two other men tampering with a car in front of Jones’ home. Taking a shotgun, Jones went outside and told the three to leave. An argument ensued, and Jones walked back toward the house. When he reached the porch, he turned and fired one shot which killed Shorter. After instructing a child in the house to call the police, Jones fled the scene. He turned himself in to the police about an hour later.

Jones’ defense at trial was self-defense; he said that he fired the shot because he had seen Shorter pull a gun. The only eyewitness other than Jones was a twelve-year-old girl. Although she appeared as a government witness, she first testified that Shorter did pull a gun on Jones; under questioning by the prosecutor, she said there was no gun; on further questioning, she reversed and contradicted herself several times. It came out during the questioning that she had given statements prior to the trial to police officers and to a public defender attorney. In one statement, she said Shorter had a gun; in the other she said he did not.

Jones contends on appeal that this evidence is not sufficient to meet the government’s burden of eliminating all reasonable doubt to the question of self-defense. United States v. Bush, 135 U.S.App.D.C. 67, 416 F.2d 823 (1969); Kelly v. United States, 124 U.S.App.D.C. 44, 361 F.2d 61 (1966). It is obvious from the trial transcript that this point troubled the trial judge as well; eventually, however, he resolved his doubts in favor of the government and allowed the case to go to the jury. Although I have reached no final view of the matter (the government’s brief has not yet been filed), I believe the trial judge’s decision raises a substantial question.

The Bush case, supra, is similar to this one. There, as here, the government could produce only one witness (other than the accused) who saw the shooting. There, as here, the witness testified that the decedent brandished a weapon just before he was shot by the defendant. There, as here, the witness was confronted with a prior statement which “in one respect appeared to be in conflict with his testimony.” On that basis, this court held that the jury could not reasonably have negated the possibility of self defense. “Such a finding must have been based upon speculation, surmise, and the repudiation by the government of the case made by its own witnesses.” 135 U.S.App.D.C. at 69, 416 F.2d at 825.

In Jones’ case, the repeated contradictions by an obviously confused and frightened twelve-year-old witness render her testimony all but meaningless. Thus the only evidence the jury had to refute Jones’ version of the shooting was whatever negative inference they might have drawn from the prosecutor’s attacks on Jones’ credibility. Accordingly, there is a substantial question whether the case was sufficient to go to the jury. In a recent narcotics case, this court stated:

While it may be that the jury was well within its province in discrediting appellant’s version of what happened, the necessity remains for the Government to have adduced proof adequately supporting the jury’s verdict.

The trial judge’s order denying the motion for release indicates that one reason he let the case go to the jury was the evidence that Jones concealed his gun and fled the scene after the shooting. This court has repeatedly noted that flight is an “unreliable indication” which may be “explained by terrorized innocence as well as by a sense of guilt.” Flight evidence is a particularly weak reed in Jones’ case, since he instructed someone to call the police immediately after the incident and turned himself in approximately one hour later. This tenuous corroboration does not seem to eliminate the substantial question concerning the sufficiency of the evidence in this case.

There remains the question of the likelihood that Jones will flee or pose a danger if released pending appeal. As stated above, the trial judge made no reference to this question in denying the motion for release. Although in many cases such an omission would require a remand, that is not necessary here. For one thing, there is some information in the record concerning the defendant's residence, employment, and criminal record. More important, the trial transcript indicates that the trial judge permitted Jones to be released pending sentencing. Under D.C.Code 23-1325(b), that ruling required the judge to find “by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or to the property of others.” This is, of course, precisely the finding required to authorize release pending appeal.

In light of this finding by the trial judge, and in light of the substantial doubt raised by the appeal as to Jones’ guilt, I believe his motion for release pending appeal should be granted.

      . The cases are discussed individually in Part IV of this opinion.

      . D.C.Code § 23-1324 (b).

      . 80 Stat. 215 (1966), as amended, 18 D.C. 170, at 174, 469 F.2d 576, at 580 (1972).

      . United States v. Stanley, 152 U.S.App.D.C. 170, at 174, 469 F.2d 576, at 580 (1972).

      . 84 Stat. 473 (1970).

      . See H.R.Rep. No. 91-907, 91st Cong., 2d Sess. 185-87 (1970).

      . The pertinent subsection provides that a person who has been convicted and sentenced “shall he detained unless the judicial officer finds by clear and convincing evidence that (1) the person is not likely to flee or pose a danger to any other person or to the property of others, and (2) the appeal . . . raises a substantial question of law or fact likely to result in a reversal or an order for a new trial.” D.C.Code § 23-1325 (c). (Emphasis added.)

      . It was that considerable difference that prompted this court's opinion in United States v. Thompson, 147 U.S.App.D.C. 7, 452 F.2d 1333 (1971). We noted there that thg DU.Code bail provisions single out a “powerless, voteless minority” — the residents of the District of Columbia — for special, and harsher, treatment. Such classification, we said, “must be subjected to the strictest possible review.” Applying that strict scrutiny to Thompson’s motion, we held that a limiting interpretation of the statute was necessary to avoid unconstitutional discrmination.
      Although Thompson did not concern the situation presented here — application of the D.C.Code bail provision to D.C.Code offenders — that opinion is instructive in this context. In Thompson we recognized that the discrimination imposed by the harsher release conditions may be permissible when Congress is dealing with local crimes unique to D.C.
      Not all of the offenses in the D.C.Code are uniquely local in character. United States v. Bland, 153 U.S.App.D.C. 254, at 256, note 3, 472 F.2d 1329, at 1331, note 3 (1972) (Statement of Bazelon, C. J.). Acting under its “special maritime and territorial jurisdiction,” Congress has enacted federal statutes covering many of the “street crimes” included in the D.C. Code. To treat a “local” offender more harshly than a “maritime or territorial” offender who has committed a similar offense may constitute the same unjustifiable discrimination that concerned the court in Thompson. Therefore, in cases involving D.C.Code provisions that are substantially similar to U.S.Code offenses, this court may be required to interpret the D.C.Code bail provisions in such a way as to avoid unconstitutional discrimination.

      . Smith and Jarvis were tried as codefendants ; thus their motions for release were both made to the same judge.

      . In his “Statement of Reasons Pursuant to Rule 9(b),” the judge did make a generalized statement that he could not recall any “substantial error” in the trial of Smith and Jarvis. He did not deal with any of the specific points of error raised by the appellants. He stated that such a discussion was unnecessary.

      . The fear is that the defendant will be “unnecessarily incarcerated and separated from his family.” Banks v. United States, 134 U.S.App.D.C. 254, 257, 414 F.2d 1150, 1153 (1969). Cf. Bandy v. United States, 81 S.Ct. 197, 5 D.Ed.2d 218 (Douglas, Circ. Justice, 1960). Although these cases arose under U.S.Code bail provisions, the possibility of unnecessary incarceration exists regardless of the bail statute being applied.

      . United States v. Long, 137 U.S.App.D.C. 275, 277, 422 F.2d 712, 714 (1970).

      . H.R.Rep. No. 91-907, 91st Cong., 2d Sess. 186-87 (1970). The report also suggests that detention is favored because of “whatever deterrent effect remains in the criminal law.” Whatever deterrent effect there is can certainly not be protected by incarcerating people who have not been validly convicted.

      . 152 U.S.App.D.C. 170, 469 F.2d 576 (1972) (dissenting opinion). Stanley involved a motion for release under the U.S. Code, but the delay caused by a remand to complete the record should be avoided regardless of which' statute governs the case. .

      . Where the trial judge’s decision is not supported by the proceedings below, this court is authorized to remand or to release on recognizance, bond, or conditions. D.C.Code §§ 23-1324(b), 23-1321(a).

      . D.C.Code § 22-2403.

      . D.C.Code § 22-3204.

      . With the jury absent from the courtroom, Twitty was questioned on this by defense counsel and the court:
      [Defense Counsel] : Do you remember telling me, sir, that you had been told by the Assistant United States Attorney, Mr. Hoffman, in this matter, that if you testified, you were told this yesterday, that if you testified in this case you would be charged with CDW, obstuction of justice, and as a principal in a murder?
      [Twitty] : You’re right.
      THE COURT: Did he say you could be, or would be?
      [Twitty] : Would be.
      T. 242-43.

      . Bray v. Peyton, 429 F.2d 500 (4th Cir. 1970).

      . United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971).

      . In Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531 (1966), the court held that the government could not be compelled to grant immunity to a defense witness. However, the opinion noted that “We might have quite different, and more difficult, problems had the Government in this case secured testimony from one eyewitness by granting him immunity while declining to seek an immunity grant for [a defense eyewitness] . . . .” The Earl case involved statutory immunity procedures under 18 U.S.C. § 1406 (1964) ; the situation in the present case is analogous, although statutory immunity is not involved.

      . Banks v. United States, 134 U.S.App.D.C. 254, 259, 414 F.2d 1150, 1153 (1969) (dissenting opinion).

      . D.C.Code § 22-2403.

      . D.C.Code § 22-3204.

      . D.C.Code § 22-2405.

      . 135 U.S.App.D.C. at 69, 416 F.2d at 825. Apparently, however, the witness in Bush held to his testimony from the stand even when confronted with the prior statement.

      . United States v. Harling, 150 U.S.App.D.C. 87, 89, 463 F.2d 923, 925 (1972).

      . United States v. Harris, 140 U.S.App.D.C. 270, 435 F.2d 74, note 48 (1970), citing United States v. Vereen, 139 U.S.App.D.C. 34, 429 F.2d 713 (1970) and Austin v. United States, 134 U.S.App.D.C. 259, 414 F.2d 1155 (1969).

      . Austin v. United States, supra note 34, 134 U.S.App.D.C. at 261, 414 F.2d at 1157.

      . Jones is a resident of the District of Columbia; T. 197; he was employed prior to being convicted and again after the conviction while released pending sentencing. Sentencing T. 2. His criminal record consists of “one year he served back in . the early 50’s.” Sentencing T. 2.