author: EUGENE A. WRIGHT, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SILVER BAY LOCAL UNION NO. 963, INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE & PAPER MILL WORKERS, AFL-CIO, Respondent.
    No. 73-1037.
    United States Court of Appeals, Ninth Circuit.
    May 22, 1974.
    Stanley Zirkin (argued), Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, NLRB, Seattle, Wash., for petitioner.
    Lawrence Schwerin (argued), of Donaldson, Hafer, Cassidy & Price, Seattle, Wash., for respondent.
    Before KOELSCH, CARTER and WRIGHT, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

The National Labor Relations Board petitions to enforce its order finding that the respondent union violated § 8(b)(1)(B) of the National Labor Relations Act [29 U.S.C. § 158(b)(1)(B)]. The Board ordered the union to cease and desist from its unlawful conduct, to post appropriate notices, and to payback pay to a supervisor terminated as a result of the union’s conduct.

We are concerned with two issues on appeal: (1) whether substantial evidence on the record as a whole supports the Board’s finding that the union violated § 8(b)(1)(B) by using the threat of a strike to restrain or coerce an employer in the selection of its “representrative for the purposes of collective bargaining or the adjustment of grievances” ; and (2) whether the NLRA authorizes an order awarding back pay to a supervisor for a purpose other than to protect the rights of employees. We remand on the issue of back pay but order enforcement of the remainder of the order.

I

The dispute arose in the plant of the Alaska Lumber & Pulp Co. at Sitka, Alaska, the employer of more than 200 men. Earl Niesen had been a member of the company’s general work force and the respondent union for more than six years. In late June 1970 the company, hoping to solve problems of excessive absenteeism, tardiness, and poor job performance, appointed Niesen supervisor of the woodroom. Niesen was selected over several foremen senior to him. Prior to his promotion he was active in the union and held the position of Standing Committee Chairman. Upon his new appointment, he resigned from the union and began a break-in period of two weeks before commencing his new duties as supervisor.

Responding to management’s encouragement, Niesen met with employees and indicated he would strictly enforce the provisions of the collective bargaining agreement with respect to absenteeism, tardiness, and job performance. The record before us indicates he succeeded in significantly improving production in the woodroom over a period of months.

Shortly after Niesen announced his intent to “crack down,” a grievance was filed against him charging misapplication of the seniority rules and harassment of the employees. The grievance was discussed at a meeting of the union-management committee. The company defended Niesen’s attempts to achieve efficient production, but indicated concern with what might be poor methods on Niesen’s part to achieve this goal. It said the complaints would be handled pursuant to the contract.

Approximately six months later another employee filed a grievance against Niesen, claiming that Niesen pushed him during a dispute in the latter’s office. Another meeting of the union-management committee was convened, and the union indicated that it wanted Niesen relieved of his duties as supervisor. The company responded in writing that the dispute had become serious enough to escalate the grievance to the next step in the adjustment of complaints.

The next day, a petition was circulated calling for a “Strike vote Earl Niesen woodroom case.” A strike vote, not sanctioned by the International Union, was conducted at two special meetings of union members. The union representative told the 210 men in attendance that a strike vote would be taken in order to demonstrate to the company that the entire work force was supporting the union leadership in the Niesen matter. The representative discounted the likelihood of a strike actually occurring. The employees voted to strike, 178 to 29.

At a union-management meeting the company expressed concern that a strike was imminent, and it offered to train Niesen for one week and to put an overseer in with him. The union rejected this offer. The next day the union documented off-job incidents of violent conduct by Niesen. The company responded with a proposal to have Niesen act only through foremen, thereby avoiding all direct contact with employees “until conditions return to normal.” The union rejected this because they did not want Niesen “anywhere near our people” and because the proposal was unilateral in nature. Negotiations broke down and the company advised the International Union representative that it would accede to the union’s request to discharge Niesen because the company could not “take a strike.” Niesen was then terminated.

The Board concluded that the union violated § 8(b)(1)(B) by demanding upon threat of a strike that Niesen be removed from his supervisory position. The union claims the strike vote was only a “show of strength,” and that it wanted Niesen terminated only because of his propensity for violence. There is substantial evidence in the record as a whole, however, to support the administrative law judge’s findings, adopted by the Board, that the fear of strike did in fact coerce the company’s decision to terminate Niesen, and that it was Niesen's vigorous enforcement of work rules, rather than his propensity for violence, that prompted the union’s conduct.

II

To remedy the results of this unlawful conduct, the Board issued a cease and desist order, ordered the union to post notices stating that it had no objection to Niesen’s employment as supervisor, and ordered the union to make Niesen whole for any loss of earnings. The union argues vigorously that the back pay award should be stricken, claiming that it is “unauthorized, inappropriate and unprecedented.” The Board responds that the award is valid and proper under § 10(c) of the Act, 29 U.S.C. § 160(c), which empowers the Board, upon finding that an unfair labor practice has been committed,

. to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this sub-chapter: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him. . . .

It has long been recognized that supervisors are not entitled to the protection afforded “ordinary employees” under the Act, and that “as to supervisors there can be no such thing as a discriminatory discharge or an unfair labor practice.” NLRB v. Fullerton Publishing Co., 283 F.2d 545, 551 (9th Cir. 1960); see 29 U.S.C. § 152(3); NLRB v. Bell Aerospace Co., 416 U.S. 267, 274 n. 4, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974).

Despite the exclusion of supervisors from the Act’s protection, courts 'have on several occasions upheld Board awards of back pay to supervisors as appropriate remedial relief under § 10(c). Each of the cases we have been able to find, however, seems predicated on the determination that such relief is necessary to protect the rights of employees. For example, courts have upheld Board orders directing reinstatement with back pay to supervisors who were disciplined for refusing to engage in unfair labor practices. Such relief has been deemed proper where it has been found that a supervisor’s discharge “interferes with, restrains and coerces the rights of ordinary employees in violation of Section 8(a)(1) of the Act.” NLRB v. Talladega Cotton Factory, 213 F.2d 209, 217 (5th Cir. 1954); NLRB v. Brookside Industries, Inc., 308 F.2d 224, 228 (4th Cir. 1962).

Similarly, courts have upheld Board awards of back pay to supervisors who were disciplined because they testified adversely to the employer in Board proceedings. This relief has not been given because of the supervisor’s support of a union, since such conduct by supervisors is not protected. Rather, it has been defended as necessary to an employee’s right to vindication through effective administrative proceedings, “and a witness’ fear of reprisal is incompatible with that effective administration.” NLRB v. Electro Motive Manufacturing Co., 389 F.2d 61, 62 (4th Cir. 1968); NLRB v. Southland Paint Co., 394 F.2d 717, 720 (5th Cir. 1968). The failure to protect supervisors who are discharged for testifying at a Board proceeding would tend

. . . to dry up legitimate sources of information to Board agents, to impair the functioning of the machinery provided for the vindication of the employees’ rights and, probably, to restrain employees in the exercise of their protected rights.

NLRB v. Electro Motive Manufacturing Co., supra.

The present ease, involving a violation of § 8(b)(1)(B), is concerned with vindicating the rights of employers, not employees. The usual remedy in such a case is a cease and desist order and the posting of a notice by the union. The Developing Labor Law 859 (C. Morris ed. 1971). We have not found one case or Board decision in which a supervisor was awarded back pay as a result of an 8(b)(1)(B) violation. Thus the order before us appears to be a departure from a consistently followed Board policy of not making such awards.

It is not clear that the Board fully considered this apparent departure from its prior decisions. In affirming without opinion the decision of the administrative law judge, the Board failed even to mention the issue of back pay. Moreover, the judge’s decision made no effort to justify this seemingly unprecedented relief.

This situation is similar to that in NLRB v. International Union of Operating Engineers, Local 925, 460 F.2d 589 (5th Cir. 1972). There the Fifth Circuit considered a case where the Board affirmed without opinion a decision of the trial examiner that assessed personal liability for back pay against a union official. As here, that ruling appeared to be a departure from Board policy and, again as here, the Board proffered no explanation for the result until it finally defended it in briefs at the appellate level. The Fifth Circuit Concluded, as do we here, that the issue should be remanded to the Board for further consideration.

The Supreme Court has recently made clear that the Board may announce new principles in an adjudicative proceeding. NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). We agree with the Fifth Circuit, however, that “ [n] evertheless, the Board may not depart, sub silentio, from its usual rules of decision to reach a different, unexplained result in a single case.” NLRB v. International Union of Operating Engineers, Local 925, supra at 604.

Therefore, without reaching the question of whether the Board has exceeded its statutory authority, we vacate that portion of the Board’s order awarding back pay to supervisor Niesen and remand to the Board for further proceedings.

If the ruling was inadvertent, the matter will stop there. If the Board is still of the opinion that [Niesen is entitled to back pay], the facts which distinguished this case from the Board’s prior decisions should be articulated. If this case represents a change in Board policy, the new policy should be explicated. Only then can this court properly consider respondents’ contention that the Board has exceeded its statutory authority.

NLRB v. International Union of Operating Engineers, Local 925, supra at 605.

Enforced in part, remanded in part.


source: Caselaw Access Project

author: LUCAS, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Terry CURRAN, Defendant-Appellant.
    No. 72-3180.
    United States Court of Appeals, Ninth Circuit.
    May 28, 1974.

      J. David Franklin (argued), Odorico, Franklin & Herring, San Diego, Cal., for defendant-appellant.
    Thomas M. Coffin, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

       Honorable Malcolm M. Lucas, United States District Judge, Central District of California, sitting by designation.

   OPINION

Before DUNIWAY and TRASK, Circuit Judges, and LUCAS, District Judge.

LUCAS, District Judge:

Two men, Garcia and Lovio, drove across the United States border in a Ford Pinto about 5:55 p. m. on June 1, 1972. Because this car was listed as a possible stolen car on a computer printout, it was stopped at the Calexico, California, Port of Entry. A customs agent, Wilburn Sears, searched the vehicle and found marijuana debris beneath the back of the front seat. Sears let the vehicle and its occupants go; but he and another agent, Louis Richenberger, followed it at a distance. They kept the car under surveillance as the men traveled to El Centro, California.

The Pinto first stopped at 302 Holton Road, El Centro, where customs agents had made a purchase of narcotics some time previously. Agent Sears saw the men leave the car, but he could not see whether they entered the house. After fifteen minutes the car departed.

The car went to 1916 Cooley Road, El Centro, and the occupants stayed there from five to ten minutes. Then they drove around El Centro for fifteen to twenty minutes and stopped at a hospital, where they stayed an hour. After that they went back to the Cooley Road address.

From Cooley Road they traveled to Kaibab Apartments in El Centro. A suspected smuggler parked near them, but the surveillance agents had no reason to believe that he and the car’s occupants were then engaged in smuggling.

After leaving the Kaibab Apartments, the men drove the Pinto onto Interstate 8 and proceeded west. The trailing officers followed them about 35 miles. Near Jacumba, California, the officers stopped the car because they had heard over the radio that a load of contraband drugs had been delivered to 1916 Cooley Road, where the Pinto had stopped twice. The Pinto’s occupants were identified as Garcia and Lovio together with a third person, Garcia’s brother. A cursory examination of the car revealed nothing. Letting the Garcias and Lovio go, the agents went back to the Cooley Road area.

When they arrived, they joined a team of officers who had gone to the Cooley Road area because of the information about the contraband drugs. The information itself had come from an informer’s tip. At 9:30 that evening the confidential informant had told Delbert Polish, an agent of the Bureau of Narcotics and Dangerous Drugs, that 50 to 60 kilograms of marijuana had been brought to 1916 Cooley Road. The informant had described the delivery car, a white Dodge, and its driver. He also told Polish that the marijuana would be shipped out of Cooley Road in small quantities. Polish had reason to believe in the informant’s reliability because the informant had provided accurate information on three prior occasions. After the tip, agents from the Bureau of Narcotics and Dangerous Drugs, the Customs Agency Service, and the Imperial County Sheriff’s Office kept watch over the house at 1916 Cooley Road.

Between 10:00 p. m. and midnight three cars left the house and the agents stopped them. In the first car, driven by Carlos Bowker, agent Robert C. Walker of the Bureau of Customs found one marijuana seed. The second one, driven by Robert E. Gross, Jr., was not searched, according to Agent Guillermo Ortiz of the Bureau of Narcotics and Dangerous Drugs. But the third car, driven by Stanley H. Lewis, contained three kilograms of marijuana, which was found by a customs agent named Cavitt.

At some time before midnight, the surveillance crew decided to raid the Cooley Road house. Shortly after midnight the officers moved. While other agents covered the exits, Wilburn Sears and Robert Walker approached the front door, which was opened by Ronald J. Greenlee and the defendant, Michael Terry Curran. After the agents had obtained identification from Greenlee and Curran, Agent Sears smelled a faint odor of warm, unburnt marijuana. Sears walked past Greenlee and Curran and into the house. He went through one room, containing a bed, and into a second one. There he saw a table containing marijuana debris and a paper bag. As Sears got close to the bag, he observed marijuana in it.

Arresting Greenlee and Curran, the agents proceeded to search through the house. In a cupboard they-found about 50 kilograms of marijuana, and in a tire they found some more marijuana.

Greenlee, Curran, and others were brought before the United States District Court for the Southern District of California. Curran was under a charge of violating 21 U.S.C. § 841, which forbids possession of a controlled substance with intent to distribute it. Marijuana is classified as a Schedule I Controlled Substance by 21 U.S.C. § 812(c)(1)(c) (10). The offense is a felony carrying a maximum term of five years or a fine of $15,000 or both. 21 U.S.C. § 841(b)(1) (B).

The defendants moved to suppress the marijuana found at the El Centro house. The motion was the subject of an exhaustive hearing on August 9 and 10, 1972, before Judge Howard B. Turrentine. At that hearing, Sears and other members of the surveillance party testified. During the hearing, Curran requested the production of reports made by Agent Polish. The judge denied this on the ground that the Jencks Act, 18 U.S.C. § 3500, did not cover the reports. The judge granted the defendants’ motion to suppress the marijuana found in the cupboard and the tire but denied it with regard to the marijuana found on the table.

Thereafter the government filed an information charging Curran with simple possession of 1% lbs. of marijuana, the amount found on the table. This offense, a violation of 21 U.S.C. § 844, is a misdemeanor. Curran pleaded not guilty and waived a jury trial. Pursuant to a stipulation, the case was submitted on the evidence heard at the motion to suppress. The judge found Cur-ran guilty and placed him on probation for one year under conditions which included payment of a $500 fine.

On this appeal Curran challenges the judge’s decision not to suppress the l1/^ lbs. of marijuana. Curran contends that all of the marijuana, including that found on the table, was obtained by an illegal search and seizure. In addition, Curran contends that the district judge erred in denying his request for production of the agent’s reports at the suppression hearing.

I. The Search at 1916 Cooley Road

Under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the search of a home is not lawful unless the officers have probable cause and in addition have a search warrant or an excuse for not having one. Curran does not contend that the agents lack probable cause; in fact, Curran concedes its existence. He argues only that the agents lacked a warrant and lacked an adequate excuse for not obtaining one.

The government relies principally on an argument based on the plain-sight doctrine. If an officer is somewhere where he has a right to be and observes an object in plain sight, he may seize that item. The latter action is not a “search”; the restrictions on searches, such as the requirement of a warrant, do not apply. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The government would expand this somewhat by treating the smelling of marijuana as part of the viewing of it or as the equivalent of the viewing of it. The argument has two steps, the first of which is justification for the officers’ presence at the front door. According to the government, officers can go to a door to ask questions at any time and need no warrant for this. The government relies on Sears’ testimony that he approached the door only to make inquiries, not to conduct a search. (R.T. 59-60). At the door, one agent smelled marijuana. The government argues that the marijuana was then in plain sight or in plain smell or that a search and seizure was justified by an exigent circumstance, the fear that Curran and Greenlee would dispose of the marijuana if the agents left to get a warrant.

A. Plain Sight.

For the seizure to qualify as an instance of plain view, the officer must be rightfully present at the place and time that he sees the goods. . The government’s theory would account for Sears’ presence at the outside door. But Sears did not see the marijuana until he had crossed the threshold and entered other rooms. The suggested justification for presence at the door, based on the officer’s avowed purpose of questioning Greenlee and Curran, could not extend to Sears’ movement past Curran and Greenlee into other rooms. The government’s theory fails to validate his presence in those rooms, and the plain-sight theory founders.

The government touches upon the theory sometimes advanced that the courts should acknowledge a “plain smell” concept analogous to that of plain sight. The smell of marijuana has been held to be a fact establishing probable cause. Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Fernandez v. United States, 9th Cir., 1963, 321 F.2d 283; Fumagalli v. United States, 9th Cir., 1970, 429 F.2d 1011; United States v. Martinez-Miramontes, 9th Cir., 1974, 494 F.2d 808 (April 10, 1974). However, before the officer could rely upon his smelling marijuana as probable cause, he would have to justify his presence at the place, i. e., the door of the house, where he detected the odor, just as he would have to justify his presence at the place from which he saw the contraband in order to rely on the doctrine of plain view. In either case, in addition, he would have to justify entering the house without obtaining a warrant. Johnson v. United States, supra. Here the justification must be exigent circumstances.

B. Exigent Circumstances and Probable Cause.

In the attempt to justify a warrant-less search by exigent circumstances, the government would have the Court validate the approach to the door because it was for questioning which requires no warrant or probable cause. The only exigent circumstances then needed would be ones justifying the intrusion past the door. The government contends that once the officers were at the door, the occupants knew of their presence and would have destroyed the evidence had the officers left to get a warrant.

Although Sears’ declared intent was merely to identify the home’s occupants, the testimony of Sears and others indicate that they anticipated the existence of the very marijuana they found and contemplated a search. One or two officers at the front door would have been enough to ascertain identities, but the surveillance crew stopped all outbound traffic and covered both the back and front doors. The police radio carried a message that the place on Cooley Road was going to be “hit.” (R.T. 109). In addition, Sears’ testimony on cross-examination indicates that the determination of identities was not his sole purpose:

Q. Wasn’t that your purpose, to find that marijuana?

A. My purpose was to find the marijuana. That was my job.

Q. That is why you went to the residence ?

A. Yes, sir.

(R.T. 44-5) Whatever Sears may have thought his purpose was, the agents had seizure of the marijuana too much in mind to permit a finding that its discovery was inadvertent. Although they intended to question the occupants, they contemplated a search and seizure. Knowing that marijuana was present and knowing that they would make their presence known to the occupants, the officers consciously established the condition which the government now points to as an exigent circumstance. If exigency arises because of unreasonable and deliberate delay by officers, it is not an exigent circumstance capable of dispensing with the requirement of a warrant. United States v. Scheffer, 463 F.2d 567 (5th Cir. 1972), cert. den., 409 U.S. 984, 93 S.Ct. 324, 34 L.Ed.2d 248 (1973); Niro v. United States, 388 F.2d 535 (1st Cir. 1968). In this case the officers have come too close to creating their own exigency if the government’s analysis of the case is followed. Instead of assuming that the advance to the door was valid and considering circumstances which might justify the further intrusion, the Court thinks that any exigent circumstances must be capable of justifying the entire raid up through the seizure of the 1% lbs. of marijuana. Together with probable cause, such an exigent circumstance would validate the seizure of that marij uana.

One source of probable cause was the tip from the confidential informant. Probable cause can be based on hearsay. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In the case of a tip from a confidential informant, the officer has probable cause adequate to obtain a warrant if the officer has information about specific facts leading to the conclusion about criminal behavior and he has reason to give credence to the informer’s tip. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In this case the informant had described the amount of marijuana shipped, the shipment time, the shipment vehicle, and the driver of it. Certainly he provided enough detail. The informant’s reliability was evident from the three previous tips he had given which had proven accurate. The officers had further assurance of reliability when the stop of the Lewis ear confirmed the informant’s statement that marijuana would be taken from the Cooley Road address in small quantities. The officers had probable cause before they approached the house and this is conceded by the appellant.

The lack of a warrant does not make a search unreasonable if exigent circumstances made immediate action imperative. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Coolidge the court declared that warrantless searches

“ ‘are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn. y yy

403 U.S. 443, 454, 91 S.Ct. 2022, 2032. In Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), the court listed a number of the exceptions: consent to the search; response to an emergency; hot pursuit of a fleeing felon; and seizure of goods in the process of destruction or goods about to be removed from the jurisdiction. See 399 U.S. 30, 35, 90 S.Ct. 1969. Although exigent circumstances are to be limited and well-defined, Vale’s listing is not exhaustive and the court did not purport to state all possible exigent circumstances nor to delineate the full extent of them. Vale is only illustrative of the sort of conditions which amount to exigent circumstances. In several recent cases the courts have expanded the Vale list. Observing that the courts have not in fact delineated exigent circumstances to any great extent, the panel in United States v. Rubin, 474 F.2d 262 (3d Cir. 1973) broadened the destruction-of-evidence circumstance beyond its Vale contours. There a defendant, when arrested, shouted, “Call my brother.” The officers knew he had delivered contraband to a garage, and the officers could conclude that the shout was a signal for someone to notify the persons in the garage. They would then destroy the contraband. The officers could search the garage because they could reasonably conclude that the contraband was in danger even though they did not know it was being destroyed and even though it was not actually being destroyed. Similarly, in United States v. Blake, 484 F.2d 50 (8th Cir. 1973), the court held that an exigent circumstance existed when contraband was threatened with imminent removal or destruction. It declined to read Vale as a complete description of all possible exigent circumstances. While Vale may indicate the degree of exigence necessary, it does not establish rigid guidelines.

The same circumstances — potential removal or destruction of evidence —is involved in this case. When the officers closed in on the Cooley Road home, they had more than just knowledge of the presence of marijuana. The informant had told them the marijuana would be shipped out in small quantities. The officers had intercepted three vehicles leaving the home, and in the last car they found a substantial quantity of marijuana. This warned the officers that the marijuana was being removed right then. The officers had not delayed unreasonably before they stopped the Lewis car. After they stopped it, they knew that several cars had already passed and reasonably could expect more. By the time a warrant could be obtained, much or all of the marijuana could have been loaded into cars for transportation. The threat of imminent destruction of evidence or removal of it is an exigent circumstance justifying a warrantless search. United States v. Blake, 484 F.2d 50 (8th Cir. 1973); Gaines v. Craven, 448 F 2d 1236 (9th Cir. 1971); Theobald v. United States, 371 F.2d 769 (9th Cir. 1967). Here the removal was more than imminent.

When the agents discovered the movement of marijuana, they had the house surrounded and were stopping vehicles as they left. They could have simply kept on doing that until someone obtained a warrant, but such a siege would not have been reasonable or adequate. They had already stopped three cars; since the marijuana was to be reshipped in small quantities, many more cars might arrive and depart. To intercept them all would be not just inconvenient but burdensome. It would have immensely complicated the situation and perhaps have required a large number of officers. It would have inconvenienced all persons, guilty or innocent, who happened to stop at the house and then leave. In addition, the siege could easily be discovered. An arriving car might pass by the departing one stopped by the agents; the officers might have to release a driver who cooperated with the house occupants but whose car had no evidence inside. In various ways word of the siege could reach the house, and the occupants would have disposed of the evidence. With the attendant risk of discovery a long siege was not feasible.

This fear of discovery is itself an exigent circumstance. In United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), police officers entered a garage to search a car they had followed and to arrest anyone in control of it. They had reason to believe the driver had discovered them. The court held that the potential discovery was an exigent circumstance justifying the entry and search. Writing for the panel — the same panel as the present one — Judge Duniway said:

At this point it may have been theoretically possible for the officers to withdraw and obtain a warrant. However, the method of investigation had made it more than probable that the occupants of the garage knew or might at any time learn of their presence. Thus there was a substantial possibility that they would try to escape or destroy the evidence.

488 F.2d 4, 8-9. In this case, the arrests in the area had already made discovery possible, and a siege around the area would have magnified the risk. The potential discovery was a second reason for not waiting for a warrant.

These facts justified an immediate raid. While conducting that raid, Officer Sears found the 1% lbs. of marijuana out on a table. At the time of its discovery, the officers had not secured the house and did not know whether they had accounted for all the occupants. Since the house had not been secured and the occupants had not been accounted for, the original exigent circumstances continued to justify the action which turned up the 1 y2 lbs. of marijuana. The trial court correctly denied the defendant’s motion to suppress the evidence.

II. Production of the Officer’s Reports

The defendants seek to have the Court interpret the Jencks Act in a way that requires production of an agent’s reports at a pretrial suppression hearing. The Jencks Act, 18 U.S.C. § 3500, states:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

The suppression hearing was in fact the trial, but only because the parties stipulated to that at a later time. The Jencks Act does not apply, and the documents need not have been produced. The trial judge correctly refused to order production.

Affirmed.

      . The exact time of each car’s departure is not clear from the record, but all were stopped at times between 10:00 p. m. and midnight.

      . An informant’s reliability can also be supported by verification of some of the details of his tip. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) ; Musgrove v. Eyman, 435 F.2d 1235 (9th Cir. 1971) ; United States v. Jiminez-Badilla, 434 F.2d 170 (9th Cir. 1970). The Court need not decide whether the verification alone would be adequate in this case.

      . (Court’s footnote 4) The court’s footnote reads:
      We have no doubt that the officers were making a good faith attempt to locate the car; they were not creating exigent circumstances. A different case would be presented if there were the possibility of abuse. As we said in Davis v. United States, 9 Cir., 1964, 327 F.2d 301, 306 :
      “On this excursion of law enforcement officers across the quagmire of search and seizure without warrants of any kind, only a thin chain of unusual circumstances upon which beamed the most benign smile of the Goddess of Fortune has enabled them to escape safely and legally with their usually forbidden fruit.”

      . The 50 kilos were not discovered until after the occupants had been arrested and the house had been secured. The 50 kilos were not in the open but in a closed cupboard. The trial judge suppressed this. It was not within the scope of a search justified by the circumstances. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).


author: PER CURIAM. PELL, Circuit Judge

text:
    IMPEACH NIXON COMMITTEE and Lynne Heidt, Plaintiffs-Appellants, v. Thomas BUCK et al., Defendants-Appellees.
    No. 74-1186.
    United States Court of Appeals, Seventh Circuit.
    Argued April 18, 1974.
    Decided April 23, 1974.
    Certiorari Granted Oct. 21, 1974.
    See 95 S.Ct. 169.
    Jacob Pomeranz, Sybille C. Fritzsche, Chicago, 111., for plaintiffs-appellants.
    Norman J. Barry, John J. Devine, Chicago, 111., for defendants-appellees.
    Before FAIRCHILD, CUMMINGS and PELL, Circuit Judges.
   PER CURIAM.

This matter first came to the attention of this division of the Court on March 15th after plaintiffs filed a motion for injunction pending appeal and defendants opposed the motion. Because the three judges did not agree that an injunction pending appeal should issue forthwith, no injunction was then issued; but we did agree that the briefing and hearing on the merits of the appeal from the denial of the preliminary injunction should be accelerated, and oral argument was heard on April 18, 1974. We reverse.

Plaintiffs seek a preliminary injunction ordering the defendants to accept their public announcement (Appendix, for posting in the Chicago Transit Authority’s vehicles and stations. In December 1973, the plaintiffs had sought to place this announcement with the CTA by contacting Metromedia, Inc., CTA’s advertising agent. Metromedia tentatively accepted the announcement pending Chicago Transit Authority approval required for any potentially controversial announcement. Defendant Buck, Director of Communications and Marketing for CTA, refused to accept the announcement. Plaintiffs attempted to discuss defendant Buck’s decision with one or more members of the CTA Board, also defendants in this case, but received no response.

Plaintiffs then filed a motion for a preliminary injunction. This was denied by the district court on March 1, 1974, and that denial is the subject of this appeal. The district court found that the CTA has had a uniform policy of rejecting advertisements similar to the one in question. But that court also indicated that the CTA has accepted advertisements which promote candidates for political office, advertisements which express an opinion on the issue of a Regional Transit Authority and at least one advertisement setting forth an anti-Vietnam War position (acceptance of which was part of a settlement of federal litigation). The district court found that these advertisements are political in a different sense from the one that the plaintiffs want posted. At this time, we do not see any essential difference between the plaintiffs’ announcement and these other advertisements as far as their political nature is concerned. It thus appears that the plaintiffs are likely to be ultimately successful on the merits. Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 64 Cal.Rptr. 430, 434 P.2d 982 (1967); Kissinger v. New York City Transportation Authority, 274 F.Supp. 438 (S.D.N.Y. 1967); Hillside Community Church, Inc. v. City of Tacoma, 76 Wash.2d 63, 455 P.2d 350 (1969); see also Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212; Lee v. Board of Regents of State Colleges, 441 F.2d 1257 (7th Cir. 1971) ; cf. Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968), certiorari denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275. Given the nature of this announcement and the involvement of First Amendment rights, the plaintiffs would suffer irreparable injury if they are not granted a preliminary injunction at this time.

Accordingly, the trial court’s order of March 1, 1974, is reversed and remanded for the entry of a preliminary injunction directing defendants-appellees to authorize and direct Metromedia, Inc. to accept the plaintiffs’ announcement attached as the Appendix to this order for placement in CTA vehicles and stations in accordance with Metromedia’s normal policy.

The mandate shall issue April 29, 1974.

APPENDIX

To

IMPEACH NIXON

Call: 475-5466

Impeach Nixon Committee 1043A Chicago Avenue Evanston, Illinois 60202

PELL, Circuit Judge

(dissenting).

Rule 41 of the Federal Rules of Appellate Procedure (one of the guidelines under which this court normally discharges its deliberative procedures) provides in part: “The mandate of the court shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order.”

Today, two judges of this court have entered a judgment reversing the order of a federal district court and, without request by the appealing parties, have ordered that the mandate of this court shall issue in six days.

The judgment of this court, which is being entered on the third working day after oral argument was heard in this case and the fourth working day after the final brief was filed, is being given precedence in a court with a heavy workload with many important and significant decisions which have been awaiting dispositive decisions for weeks, indeed months.

Nevertheless, such expedited handling may be justified under some circumstances. “[Tjiming is of the essence in politics. It is almost impossible to predict the political future; and when an event occurs, it is often necessary to have one’s voice heard promptly if it is to be considered at all.” Shuttlesworth v. Birmingham, 394 U.S. 147, 163, 89 S.Ct. 935, 945, 22 L.Ed.2d 162 (1969) (concurring opinion of Mr. Justice Harlan).

Turning to the litigation before us, and it is that case and that case alone with which we should be concerned, the necessity for acceleration appears to be for the most part sua sponie on the part of this court, a feeling which appears not to be fully shared by the plaintiffs. The plaintiffs did not seek a preliminary injunction for some two months after the notification to them of the nonaeceptability of their proposed advertisement. The district court denied the plaintiff’s motion for preliminary injunction on February 28, 1974, but the plaintiffs have not sought any discovery nor have they otherwise taken steps to secure a final disposition of their case in the district court.

Their course in the trial court seems to have been sound strategically for they have now secured in this court, while by-passing the district court, the ultimate relief which they sought in the lower court.

An injunction ordinarily is a judicial prohibition of some action or, in other words, the enjoined person is stopped from doing something. A preliminary injunction accomplishes that stoppage while the action is pending in the trial court and if, following a full development of the pertinent evidence, the prohibition is legally and equitably correct, the injunction becomes permanent.

Here, however, the defendants are not to be ordered to stop doing something but they affirmatively are to be ordered “to place within vehicles and stations under their jurisdiction the paid announcements of Plaintiffs.” The extraordinary relief which plaintiffs requested, and which is now being granted, although titled as a preliminary injunction, will not merely maintain the status quo pending the action but will place their announcements now in facilities designed to accommodate the transportation needs of the public.

If, as the appellants contend, the denial by the district court of the mandatory preliminary injunction sought by the appellants was a clear-cut violation of First Amendment rights of the appellants, I would have no hesitation in joining in the order issued by the majority of this panel.

I have made my position clear with respect to the importance of the issue in other opinions written for this court. Thus, in Collin v. Chicago Park District, 460 F.2d 746, 751 (7th Cir. 1972), I stated:

“Despite dissenting opinions now and then in particular contexts, the pillar of recognition [of the First Amendment guarantee of freedom of speech and freedom of assembly] has remained staunchly resistant to chipping efforts emanating from a distaste for the words spoken or desired to be spoken or because of the purpose or ideology of the group assembling or proposing to assemble.”

Also, in United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973), in a separate opinion I stated:

“The plain language of the First Amendment to the Constitution of the United States of America is ‘Congress shall make no law . . . abridging the freedom of speech . . . . ’ While ‘freedom of speech’ is not an absolute right and proper curbs have been spelled out by the judiciary, e. g., in the area of libel, the word ‘speech’ itself is not qualified by a limitation of subject matter to innocuous mundanities. Imaginative or stirring ideas and idealistic beliefs are equally within its sweep. Speech without effective communication is not speech but an idle monologue in the wilderness. Communication involves listeners. A ‘law’ which upon reasonable construction would, by its deterrent threat of punishment for the mere expression of ideas or beliefs, cellularly isolate the speaker from potential listeners in all of the states of the Union except his own would, in my opinion, abridge freedom of speech.
* * * -X- * *
It is because of my underlying belief in the preservation of that freedom [of an interchange of ideas and beliefs] that I have written as I have herein.” 472 F.2d at 414-416. [Footnote omitted.]

It appears to me that a serious threshold question exists in the present case as to whether there is any proper record on which to base either an affirmance or reversal of the district court’s action. In 11 Wright & Miller, Federal Practice and Procedure: Civil § 2949 (1973), the authors state:

“Evidence that goes beyond the unverified allegations of the pleadings and motion papers must be presented to support or oppose a motion for a preliminary injunction.” [Footnote omitted.]

Indeed it has been stated that “[a]s support for a preliminary injunction the court can consider only facts presented by affidavit or testimony and cannot consider facts provable under the modern liberal interpretation of the complaint but which have not been proved. Indeed, proof to support a preliminary injunction must be strong and clear in view of the restraint put upon the defendant at a time before his liability has actually been adjudged.” Societe Comptoir De L’Indus. v. Alexander’s Dept. Stores, 190 F.Supp. 594, 601-602 (S.D.N.Y.1961), aff’d, 299 F.2d 33 (2d Cir. 1962).

In the present case while the complaint was verified (although at least one of the complaint’s allegations was on information and belief), there were no affidavits submitted and no testimony heard. The parties, however, in oral argument have indicated that there was no substantial dispute with regard to the facts as found in the district court’s order denying the preliminary injunction, and while it appears to me that such an uncertain record is an unstable basis on which to reverse a district court because of an abuse of discretion, nevertheless, I will take the facts, sparse though they may be, as they have been stated by the parties.

The basis of our review of the denial of a preliminary injunction is indisputably established by cases such as Progress Development Corporation v. Mitchell, 286 F.2d 222, 229 (7th Cir. 1961), where then Chief Judge Hastings said for this court the following :

“Further, it is well established that the issuance of a temporary injunction rests in the sound discretion of the trial court. On appeal, an order granting or denying such an injunction will not be disturbed unless there is a clear showing of an abuse of the discretion so exercised. Meccano, Ltd. v. John Wanamaker, 1920, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822; Westinghouse Electric Corp. v. Free Sewing Mach. Co., 7 Cir. 1958, 256 F.2d 806, 808, and cases cited therein.”

See also, Allied Theatre Owners of Indiana, Inc. v. Volpe, 426 F.2d 1002 (7th Cir. 1970).

In equity suits, the district court has a wide discretion to issue or withhold a temporary injunction and ordinarily this court will not interfere. Hulburt Oil & Grease Co. v. Hulburt Oil & Grease Co., 346 F.2d 260, 263 (7th Cir. 1965).

In the context of that established law which is that which should apply in this case, I turn to the particular facts and issues presented.

In so doing, I am assuming that the reference to the political nature of the plaintiffs’ proposed advertisement is not intended to be equated with partisan political considerations. Without apparently even according recognition to this initial differentiation between the advertising that was accepted from political candidates and that proposed here, the majority opinion without analysis states that there is no “essential difference between the plaintiffs’ announcement and these other advertisements as far as their political nature is concerned.”

On the basis of the findings of fact which are not shown to be incorrect, let alone clearly erroneous, there is in my opinion a deep running fissure of meaningful significance between the three categories of advertising which have been heretofore accepted by the CTA and that proposed by the plaintiffs. It is, it appears to me, the existence or lack of existence of a significant differentiation between that which has been done and that which has been proposed which forms the crucial issue here of whether we can now say that the plaintiffs have clearly demonstrated likelihood of ultimate success predicated on a denial of equal protection of the laws in violation of the Fourteenth Amendment.

If there had been a situation here where the CTA had accepted only commercial advertisements then the case of Lehman v. City of Shaker Heights, 34 Ohio St.2d 143, 296 N.E.2d 683 (1973), would appear to have sufficient direct bearing to preclude our saying that the district court had clearly abused its discretion in finding that the CTA facilities do not constitute a public forum for advertising of the type here proposed.

This result would not be because of any binding effect of a decision of the Ohio Supreme Court on this court but because Lehman has been argued in the Supreme Court of the United States and is pending decision there.

In Lehman, the City of Shaker Heights Rapid Transit District, and its advertising agent, Metromedia, Inc., refused to place an ad urging the candidacy of an aspirant to political office. The defendants had previously accepted commercial advertisements for display on the vehicles and structures of the transit system. The Supreme Court of Ohio, in affirming the Ohio Court of Appeals, ruled the advertising space was not a public forum. At p. 685 the Court stated:

“There is an obvious and fundamental difference between transit vehicles and communications media such as newspapers, magazines, radio and television, the primary purpose of each of which is to serve as a forum for the exchange and interplay of ideas. The city has not opened up its transit vehicles to any exchange or presentation of ideas, political or otherwise.”

In specific reference to the First Amendment question, the Ohio Supreme Court stated at p. 685:

“In other words, the constitutionally protected right of free speech with respect to forums for oral speech, or the dissemination of literature on a city’s streets, does not extend to commercial or political advertising on rapid transit vehicles.”

The Ohio Supreme Court further found no denial of equal protection in that all persons within the same class were treated alike. (296 N.E.2d at 686).

But in the CTA facilities, as has already been noted, other non-commercial advertisements have been accepted and we therefore have the question of whether the proposed announcement of the plaintiffs may reasonably be deemed to be within or without the ambit of"the classification heretofore established.

In oral argument, counsel for the defendants argued that the proposed advertisement was of “an opinion” type which was not accepted by the CTA. While this categorization would appear to be so on the vague side as to provide insufficient guidance, e. g., urging participation in the Girl Scout movement connotes someone’s opinion that this is a worthwhile endeavor, defense counsel gave as illustrations advertisements for or against abortion and those which would reflect derogatorily on a particular race or religion. The district court did find that the CTA “did have and now has a uniform policy of rejecting ads similar to the one attached to the Complaint.” Unfortunately, the meagre record does not show the scope nor exact extent of this uniform policy as no evidence was received. This matter, of course, can be properly explored on final hearing.

In the meantime, for the present purpose we have the three acceptance situations which plaintiffs contend have opened the door for their advertising: (a) an advertisement setting forth an Anti-Vietnam War position; (b) one urging support of the Regional Transportation Authority (RTA); and (c) advertisements promoting candidates for political office. The three categories have a common denominator. In each, the public is urged to take a position in a situation in which the stand taken will be directly influential on the achievement of a particular result. This is especially so as to the second and third categories. The RTA is the name given to a legislative enactment creating a merged transportation system of the six counties in the Chicago, Illinois area. Federal funding was involved and the claim had been made that the Chicago Transit Authority could not survive unless it became a part of an overall multi-county transportation system. The legislation, however, was not effective upon departure from the state capital but required affirmative referendum approval by voters in the affected counties.

Likewise as to the political candidates, those who would be using the CTA facilities would be for the most part those who would be voting directly on the candidates whose virtues were being touted. The Anti-Vietnam war continuance was one which was not the subject of direct ballot box action by people using the CTA facilities but presumably the issue was one on which members of Congress would respond to the will of the people.

In addition to the common strain, the RTA issue as already noted was apparently believed by the CTA functionaries to be vital to its very existence. The Anti-Vietnam war advertisement was accepted pursuant to a decree entered in litigation and such a duress basis does not appear to me to reflect upon whether the CTA had opted to become a public forum for all types of expression.

On the other hand, I cannot conceive that the purpose of the plaintiff committee does have a direct bearing on the resolution of the presidential impeachment issue, nor do I conceive that it should have an indirect bearing. According to Article I of the United States Constitution, the House of Representatives “shall have the sole Power of Impeachment,” and the “Senate shall have the sole Power to try all Impeachments.” As I read these provisions, which perhaps fortunately for the stability of our nation have had little occasion for interpretation, the House of Representatives is in effect to bring an indicment when it determines as a matter of probable cause that there exists “Treason, Bribery, or other high Crimes and Misdemeanors.”

I decline to think that members of the House of Representatives will reach this awesome decision on a nose-count basis of their constituents. I would likewise decline to think that a grand jury should bring an indictment because a substantial part of the citizenry were of the opinion that a particular person was guilty of a crime just as I would not believe that the CTA would be denying equal protection because it declined an advertisement urging that a public official of the city should be indicted even though it was simultaneously accepting that official’s advertisement advancing his reelection.

What I have said, of course, does not mean that every person is not free, whether his expression has any bearing on the determination of the issue or not, to state his beliefs and opinions, whether logical or illogical, supported or fanciful, properly or venomously motivated, on the impeachment issue. Whether these expressions take the form of speech, pamphlets distributed in public places, letters, or even bumper-stickers is immaterial. It is the Constitution-given right to sound off. This, however, does not reach the question of the validity of the differentiation in classification for which the defendants contend. It in my opinion has sufficient validity that we should not reach the conclusion that the district court abused its discretion.

As a matter of fact, the majority opinion is singularly silent as to the question of abuse of discretion. Since such a determination is crucial to the issue before us I will assume that such a determination is implicit in the majority opinion.

Further, as reflecting on the issue before this court, it must be noted that in most of the cases relied upon by the plaintiffs, the transit system was named as a party. Here, neither the Chicago Transit Authority nor its advertising agency, Metromedia, Inc., is named as a party and they thereby are not made subject to the jurisdiction of this court. I find it rather startling that corporate entities are proceeded against through the backdoor method of orders directing their officers to do something that must ultimately be the act of the principal not the agent. The district court in denying the preliminary injunction doubted “that all parties necessary to effectuate the relief prayed for by the plaintiffs have been joined as defendants.” I share that doubt but again for the present purposes of determining whether there has been an abuse of discretion, the unresolved question of proper parties merely fortifies my opinion that we cannot say there .has been such an abuse as to require a reversal at this juncture.

The cause which the plaintiffs presumably are espousing is one which has for some months preempted a substantial portion of the space and time of the media primarily designed, as the CTA is not, for the dissemination of news, ideas, and expressions. That the issue may be one of overriding national importance, even though it may be coupled with claimed violations of precious First Amendment rights, does not, in my opinion, justify this court in deviating from established orderly procedures. Neither the high respect we pay to preventing infringements upon freedom of expression nor the importance of the contextual issue should cause this court to fail to adhere to fundamental concepts of due process to which every litigant, large or small, public or private, is entitled.

I therefore respectfully dissent.


author: EDWARD R. BECKER, District Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Frank VISCEGLIA and Vincent Visceglia, t/a Peddie Buildings, Respondent.
    No. 73-1704.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 28, 1974.
    Decided May 21, 1974.
    As Amended May 31, 1974.

      Jay E. Shanklin, William H. DuRoss, III, Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Asst. Gen. Counsel, Elliott Moore, Deputy Asst. Gen. Counsel, N.L. R.B., for petitioner.
    Edward F. Ryan, Irving L. Hurwitz, Carpenter, Bennett & Morrissey, Newark, N. J., for respondent.
    Milton Smith, Richard B. Berman, Washington, D. C., Gerard C. Smetana, Jerry Kronenberg, Chicago, 111., for amicus curiae, U. S. Chamber of Commerce.
    Before HUNTER and WEIS, Circuit Judges, and BECKER, District Judge.
   OPINION OF THE COURT

EDWARD R. BECKER, District Judge.

This is an application of the National Labor Relations Board (Board) pursuant to § 10(e) of the National Labor Relations Act (Act) for enforcement of its unfair labor practice order issued on April 27, 1973, against Frank Visceglia and Vincent Visceglia, a limited partnership t/a Peddie Buildings (Respondent). The issue presented is whether there is substantial evidence to support the Board’s finding that Respondent violated § 8(a)(1) of the Act by threatening to cause the arrest of warehouse employees of American Hospital Supply Company, Inc. (American) for engaging in peaceful primary picketing on Respondent’s privately owned industrial park property in support of an economic strike against American, where Respondent’s private road provided the sole access to a warehouse that American leased from Respondent in the industrial park.

The Board’s decision is bottomed upon the principles enunciated in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). While Babcock deals with organizational picketing, the Board nonetheless applies it to the primary economic picketing involved in this case. The Board concludes that under the Babcock balancing test, the private property rights of Respondent are outweighed by and therefore must yield to the rights asserted by the pickets under § 7 of the Act. Respondent maintains that the principles of Babcock are inapplicable to the instant case, since an economic strike, not organizational activity, is involved. Respondent asserts a constitutionally protected right to limit access to its property in the context of this case. Alternatively, Respondent contends that its property rights still outweigh the pickets’ rights, even if Babcock is applicable.

We now summarize the record as set forth by the Administrative Law Judge and relied upon by the Board. As will be seen, there is not substantial evidence to support the Board’s decision, even assuming the applicability of the Babcock balancing test which constitutes the sole basis for the Board’s decision and enforcement application. Hence, enforcement will be denied.

I.

Raritan Center-(the Center) is a large industrial park complex near Edison, New Jersey. The Center is owned, operated and controlled principally by two brothers, Frank and Vincent Visceglia. It consists of approximately 2350 acres, divided roughly into four quadrants, three of which were developed for sale to companies that erected their own buildings. The Visceglia brothers have retained the remaining sector, a 417 acre tract of land within the Center, which they operate as rental property in a limited partnership under the trade name of Peddie Buildings (Respondent). It is the Peddie sector which is involved in this case. At the time the dispute before us arose (April 1971), there were approximately 68 buildings in the Peddie sector. The normal use of the Peddie sector by its tenants was nonretail.

Raritan Center’s northern boundary is Woodbridge Avenue, a public highway. The entire perimeter of the Center is fenced; the only entrance is located at the intersection of Woodbridge Avenue and Raritan Center Parkway. Raritan Center Parkway, also a public road, begins at Woodbridge Avenue and continues south within the industrial park confines for approximately one mile until it terminates at the Lehigh Valley Railroad tracks. Running east and west, these railroad tracks bisect the Center. On the other side of these tracks, a small private road begins and runs through the Peddie sector as the sole access road. At the start of this private road there is a large sign reading “No Trespassing — Private Property, Entrance By Permit Only.” On occasion this road is closed to all traffic by Respondent. Approximately 40% of the borders of the Peddie sector are fenced off from the remainder of Raritan Center, and Peddie intends to enclose the entire sector.

In its various leases, Respondent agreed to provide security for its tenants. At the time the dispute at issue occurred, Respondent had guards stationed at the entrance to Raritan Center at Woodbridge Avenue and Raritan Center Parkway. The guards made a record of all trucks entering the Center by noting their license plate numbers, the names of the owners, their destination and the time of entry and exit. They also attempted to stop all other vehicles entering the Center, except when morning and evening rush hour traffic made this impossible. The guards patrolled the entire Center, including the Peddie sector. Since the events in the instant case arose, the guards have been moved back to a location near the Lehigh Valley Railroad tracks at the end of Raritan Center Parkway near the Peddie sector.

American has two buildings in the Raritan Center. One is a warehouse fronting on Raritan Center Parkway (Building 120), situated on 30 acres which American owns, and in which American conducts its hospital supply operation. American also leases a warehouse, known as Building 426, in the Peddie sector to house part of its warehouse operations for its dietary division. Building 426 is approximately one-fifth of a mile from the Peddie sector entrance.

At pertinent times, the Building 120 warehouse employees were represented by Local 807, International Brotherhood of Teamsters (the Union). The collective bargaining agreement between American and the Union covering these employees expired on March 12, 1971. On or about March 20, 1971, the employees of Building 120 struck and picketed American at Building 120. Anyone going to Building 426 had to pass Building 120 on Raritan Center Parkway. Nevertheless, about a week later, American employee Fogarty, who was also the Union’s steward, and another American employee went to Building 426 in the Peddie tract and began picketing there, too.

Shortly after the picketing began on the private Peddie road in front of Building 426, Raritan Center’s general superintendent, Louis Camaglia, and his assistant, William Alagna, agents of Peddie, advised the pickets that they were on private property and that the police would be called to have them arrested if they did not leave. Thereafter Fogarty and his fellow picket left. The following morning, Fogarty and the other picket returned to Building 426 where Camaglia and Alagna again confronted them and informed them that they were on private property and they would have to leave or the police would be called to have them arrested. When they did not leave, Camaglia went back to his office, and, pursuant to instructions, called the general counsel of one of the Visceglia companies.1 The general counsel said that he would handle the matter. Soon thereafter, several police officers arrived. After inquiring as to whether there were more than two pickets, one of the police officers said, “I am going to let you stay here and picket. I am going to let the courts decide this, but I want no trouble.”

On March 30, 1971, Respondent filed a complaint in the Superior Court of New Jersey against the Union, alleging, inter alia, that the Union’s entrance upon its property constituted an unprivileged invasion of its property rights. An Order to Show Cause issued on March 30, 1971, and an Order for Interlocutory Injunction issued on April 8, 1971. After a hearing, Superior Court Judge David D. Furman determined that the Union’s entrance into the Peddie sector constituted a trespass, and he enjoined the conduct. The Union appealed Judge Furman’s order to the Superior Court’s Appellate Division, which on April 20, 1970, upheld his determination that a trespass had occurred. After the Court issued the injunction on April 8, 1971, the pickets moved to public ground at the entrance of the Peddie sector at the intersection of Raritan Center Parkway and the railroad tracks. They remained at this location until the end of the strike.

II.

Based upon the foregoing facts, the Board found that, by threatening to cause the arrest of the employee pickets, Respondent had interfered with, coerced, and restrained the employees in the exercise of their § 7 rights and thereby violated § 8(a)(1) of the Act. As we noted at the outset, the Board reached this conclusion by applying the balancing test enunciated in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). In Babcock, the Court was directly concerned with the rights of non-employee organizers to distribute union literature on company-owned parking lots. Mr. Justice Reed, speaking for the Court, explained:

Organization rights are guaranteed to workers by the same authority, the National Government that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other .... But when the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels, the right to exclude them from property has been required to yield to the extent needed to permit communication of information on the right to organize.

Id. at 112. The Babcock court went on to note that the determination of the proper adjustments rests with the Board, whose rulings should be sustained unless its conclusions rest on erroneous legal foundations or are not based on findings of fact supported by substantial evidence in the record as a whole.

Even though the Babcock facts and holding are focused on organizational picketing, the Board in the present case extended the Babcock balancing test to non-organizational picketing. The Board took the view that the right to picket in support of an economic strike guaranteed by § 7 is at least as important as the right of self-organization addressed in Babcock. According to the Board, this right to picket in support of an economic strike is embodied in § 7 and given emphasis by § 13 of the Act. Section 13 explicitly reaffirms the right to strike except as specifically limited in the Act, and the Board rightly asserts that peaceful primary picketing is a legitimate activity related to the right to strike. See, e. g., United Steel Workers of America, AFL-CIO v. NLRB (Carrier Corp.), 376 U.S. 492, 499, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964). At oral argument, the Board further advanced what is an impressive argument for applying Babcock to primary economic picketing, by asserting that Congress intended to give more protection to this § 7 right to strike than to the § 7 right to organize, as evidenced by the fact that § 8(b)(7)(C) limits organizational picketing to thirty days, while nothing in the Act so limits primary economic picketing of strikers.

In its decision, the Board viewed the picketing at Building 426 as protected activity under the Act, and concluded that such picketing did not lose its protection merely because it took place on Respondent’s private property. Part of the Board’s reasoning in support of its conclusion was its assertion that since the employees had a right of access to Building 426 for work purposes, they had a “parallel right of access” for purposes of otherwise legitimate picketing. In applying the Babcock balancing test, the Board also looked at Respondent’s property rights, noting that Respondent has a property right in merely a “limited access” road which it permitted to be used by acceptable classes of persons, and that the employees from Building 120 were within that acceptable class. And the Board included in its balancing evaluation its belief that picketing at the entrance to the Peddie sector, rather than at Building 426, would have had adverse secondary effects.

Respondent, on the other hand, challenges all of the Board’s arguments. First, quoting from Diamond Shamrock Co. v. NLRB, 443 F.2d 52, 58 (3d Cir. 1971), Respondent contends that it has “constitutionally protected property rights,” including a right to limit access to its property. As Respondent notes, this Court denied enforcement of Board orders which were unwarranted invasions of the employer’s constitutionally protected property rights. See, e. g., Diamond Shamrock Co. v. NLRB, supra, and NLRB v. Tamiment, Inc., 451 F.2d 794 (3d Cir. 1971), cert. denied, 409 U.S. 1012, 93 S.Ct. 440, 34 L.Ed.2d 306 (1972), where the court refused to enforce a Board order requiring the employer to allow Union organizers to solicit members on the employer’s property, since the Union did not make an adequate showing that there were no reasonable alternative means for communicating directly with employees.

Respondent next argues that the pickets in the instant case were trespassers who had no right under the Act to be on the Peddie sector, since they were neither engaged in organizational activities, cf. NLRB v. Babcock & Wilcox Co., supra, nor on-duty employees exercising statutory rights. Cf. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1392 (1945) (employer could not. prohibit employees from soliciting fellow employees for Union when on company property and outside working time, except as necessary to maintain work discipline and production). Respondent also contends that certain language in Central Hardware Co. v. NLRB, 407 U.S. 539, 544-545, 92 S.Ct. 2238, 2242, 33 L.Ed.2d 122 (1972) confines the Babcock test to organizational activities. In Central Hardware, Justice Powell wrote:

The principle of Babcock is limited to this accommodation between organization rights and property rights. This principle requires a “yielding” of property rights only in the context of an organization campaign. Moreover, the allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees’ § 7 rights.

Even if a Babcock type of balancing test is applied, Respondent argues that its property rights outweigh the pickets’ rights since the pickets had other reasonable means of communicating, by picketing at the Peddie entrance and at Building 120. Respondent further argues that the Board’s balancing judgment, including its finding of adverse secondary effects, is not supported by substantial evidence in the record as a whole. It is this question of substantial evidence which is dispositve and to which we now turn.

III.

We neither adopt the Board’s conclusion that Babcock applies to economic pickets in industrial parks, nor do we accept Respondent’s contentions that Babcock does not apply and under no circumstances can pickets parade on private industrial park property. We do not need to resolve these conflicting' contentions in light of our conclusion that the Board’s ruling was not supported by substantial evidence in the record as a whole, even assuming arguendo that a Babcock type of balancing test applies in the instant case. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It is easy to conceive of circumstances under which, if Babcock applied, the property rights of Respondent would have to yield to the § 7 rights of the pickets. Without detailing the myriad contexts in which that result would obtain, it would at least require a situation where there was no reasonable and safe means to communicate with employees, customers, suppliers, management, and other relevant groups, except by picketing on private property (e. g., on a private road) at a primary site within an industrial park.

In the instant case there is no evidence that it was essential for the pickets to be directly in front of Building 426 in order to communicate their message effectively. The Board did not find that the picketing at the sole entrance to the Peddie tract, which was about a fifth of a mile from Building 426, was ineffective in communicating its message to the appropriate people. Indeed, the record does not indicate, nor can we infer therefrom, who the appropriate persons were. The Board made no finding as to how many employees were inside Building 426, or how many customers or suppliers went to the Building. Everyone entering the Peddie tract had to pass the pickets, and those entering were forced to slow down and stop at the railroad tracks and gate; hence they should have been able to read the picket signs at that location. In fact, nothing prevented the pickets from talking to these people, although it is true that the pickets might not have known exactly which people were going to Building 426, making it harder to reach the appropriate groups as directly and persuasively. Some suppliers or other workers might have avoided being confronted by the pickets by claiming to be going elsewhere; however the Board made no such findings. While the pickets could not confront the employer at Building 426, they could still confront him at Building 120 to be sure he received their message. In addition, people going to Building 426 had to pass the pickets who were stationed at Building 120 on Raritan Center Parkway, and there is no evidence that the pickets could not communicate their message effectively from there.

In terms of the Board’s assertion that since the employees had a right of access to Building 426 for work purposes, they had a “parallel right of access” for purposes of otherwise legitimate picketing, we find that the evidence to support this conclusion does not appear of record. The Board failed to explain why striking employees of Building 120 had any legal right of access to Building 426. It is not even clear what the Board means by the phrase “right of access.” The employees from Building 120 did not have any right of access to Building 426 for work purposes, since they were not employed at Building 426, nor on-duty there. Cf. Diamond Shamrock Co. v. NLRB, 443 F.2d 52 (3d Cir. 1971) (off-duty employees do not have same rights to solicit union support on company property as on-duty employees under Babcock might have in their non-working time); GTE Lenkurk, Inc., 204 NLRB No. 75, 83 LRRM 1684 (1973) (off-duty employees and non-employees considered invitees to the same extent for organizational purposes, and one is no more entitled than the other to admission to the premises for organizational purposes). While we find no substantial evidence to support the Board’s conclusion that the pickets had a “right of access” for work purposes and therefore for picketing at Building 426, we accept the uncontested assumption that the pickets were engaged in legitimate primary picketing at Building 426 and would have had a right to picket there if they had been on public property. However, the Board had no substantial evidence to support its ultimate conclusion that the rights of legitimate primary pickets outweigh the property rights of the private industrial park owners under the circumstances of this case.

In terms of Respondent’s property rights, we find that there is not substantial evidence in the record to support the Board’s evaluation of those property rights or of the injury thereto caused by permitting pickets in the Peddie sector. The Board never measured the utility to the landowner, tenants and the public of the type of realty arrangement involved here. The record indicates that Respondent had leased Building 426 to American, and had also given American an implied easement of access over the private road in the Peddie sector. As landlord, Respondent retained a reversionary interest in this property and in the easement, and it is arguable that the injury to its property was not significant, and that the trespass was only a technical trespass that in no way hurt .Respondent’s reversionary interest. On the other hand, if Respondent’s land values would decline to a significant degree if they could not exclude pickets, that potential fact might outweigh any statutory right the pickets might have to get closer to their employer’s situs. However, the Board made none of these findings of fact.

While the Board concluded that forcing the pickets to stay at the entrance to the Peddie property, instead of allowing them to go to the most proximate location directly in front of Building 426 “would have had the statutorily undesirable result of enmeshing other businesses which occupied space within the Peddie sector” (emphasis added), this legal conclusion was not based on factual evidence of any adverse secondary effects on the other lessees. At the time there were only 68 buildings in the Peddie sector, and all were non-retail except for one restaurant that served primarily those who worked in the other buildings. There is no evidence in the record that any of these lessees was affected at all, much less adversely, by the few pickets at the entrance to the Peddie sector.

In short, the Board did not evaluate qualitatively or quantitatively a significant number of important ingredients in the balancing test which it applied. In light of the major omissions from the record, the Board could not find as a fact supported by substantial evidence -that the strikers’ § 7 rights outweigh Respondent’s property rights under a Babcock type of balancing test. As we have noted, the Board advanced no other theory in support of its decision and enforcement application. Accordingly, the Board’s application for enforcement is denied.

      . 29 U.S.C. § 160(e) (1970).

      . The Board’s decision and order is reported at 203 NLRB No. 27, 83 LRRM 1066 (1973). The order required Respondent to cease and desist and to post notices.

      . The Administrative Law Judge relied in part on Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), which held that a shopping center which was freely accessible and open to the public was deemed the functional equivalent of a community business block for First Amendment purposes. lie concluded that the private road within this industrial park where the picketing at issue took place was akin to an industrial city street, which property right could therefore be circumscribed by the statutory and constitutional rights of these pickets. The Board, however, rejected the applicability of Logan, Valley, for reasons expressed in Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972), where the Supreme Court held that a sole proprietor’s parking lot adjacent to his retail store was not “quasi public” like the Logan Valley shopping mall and that § 7 rather than constitutional principles should be applied in determining the rights of organizational pickets to have access to the Central Hardware parking lot. In this appeal, the parties did not contest the Board’s conclusion that Logan, Valley is inapplicable and did not brief the issue. An amicus brief by the United States Chamber of Commerce does analyze tiie relationship to labor picketing in industrial parks of Logan Valley and the more recent cases of Central Hardware Co. v. NLRB, supra, and Lloyd Corporation, Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). The question whether Logan Valley applies to pickets (labor or others) in industrial parks is an important issue, and the direction which the law will take in this area is unclear. But see NLRB v. Solo Cup Company, 422 F.2d 1149 (7th Cir. 1970). However, we do not believe that the instant record requires us to reach this difficult problem. Nor are we bound to do so simply because an amicus brief raises the issue where the parties do not.

      . When we describe the Center and the Peddie sector, we are referring to the facts as they existed at the time of the dispute. The record indicates that by the present time the appearance of the Center, or at least the number of buildings therein, is changed.

      . One tenant in the Peddie sector, a restaurant, served all patrons, whether they were employed in the Raritan Center or not, but it did not in any way advertise as being open to the public.

      . At the time of the hearing before the Administrative Law Judge, the private road in question and other proposed roads in the Peddie tract had been offered to the local government for dedication as public roads. If this public dedication is ever accomplished, all the private roads in the Peddie sector would be eliminated and the issues involved in this case would be foreclosed from arising again in this park.

      . 29 U.S.C. §§ 157 and 163 (1970).

      . The Board also made no finding that the pickets were endangered at the entrance to the Peddie sector. Cf. Logan Valley, supra at 322 (court noted danger to pickets as a factor to consider, at least in first amendment picketing cases).

      . American conceded in a subsequent NLRB election proceeding that the employees of Buildings 120 and 426 together constituted a single appropriate unit for collective bargaining purposes. In our view, the subsequent> election is not substantial evidence of the fact that employees from Building 120 had any legal right of access to Building 426 for work purposes or for picketing on the private industrial park property.